In re Pederson

• Decision Date: 13 February 2020
• Docket Number: No. 349881,349881
• Citation: 951 N.W.2d 704,331 Mich.App. 445
• Parties: IN RE PEDERSON, Minors.
• Court: Court of Appeal of Michigan — District of US

331 Mich.App. 445

951 N.W.2d 704

IN RE PEDERSON, Minors.

No. 349881

Court of Appeals of Michigan.

Submitted January 7, 2020, at Lansing.

Decided February 13, 2020, at 9:00 a.m.

Anthony M. Damiano, Cheboygan, for the Department of Health and Human Services.

Donald J. Dowling, Jr., for respondents.

Michael Vogler for the minor children.

Before: Cameron, P.J., and Shapiro and Swartzle, JJ.

Cameron, J. Respondents appeal as of right the trial court's order terminating their parental rights to their two minor children¹ under MCL 712A.19b(3)(c)(i ) (conditions that led to adjudication continue to exist), (c)(ii ) (failure to rectify other conditions), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood that the children will be harmed if returned to the parents). We affirm.

I. FACTUAL BACKGROUND

Respondents’ parental rights were terminated due to their neglect of their minor children over the course of several years. In March 2017, the Department of Health and Human Services filed a petition seeking the children's removal. The petition alleged that respondents had been the subjects of Child Protective Services complaints on 18 prior occasions, with those prior complaints regarding both of respondent-mother's other children, who had since become adults, and the minor children at issue in this case. Petitioner also alleged that over the course of several years, numerous caseworkers had visited respondents’ home and found it in appalling condition. During this time, infestations of spiders and cockroaches had been observed, as had mold and flooding. Cockroaches had been observed crawling over food in respondents’ refrigerator. The daughter was significantly overweight, her bedroom had an "unbearable" odor of urine, and her mattress was so saturated with urine that it had soaked through and inundated the floorboards. The electricity had been shut off at times for nonpayment of outstanding bills, and the plumbing was nonfunctional at times. Caseworkers discovered animal feces and urine in the basement. The minor children had also been habitually absent from school, often without excuse, and had been sent to school with poor hygiene, noticeable body odor, "greasy" hair, and ill-fitting, unwashed clothing that sometimes smelled strongly of urine or feces. As a result, the children had been bullied by their peers. Petitioner alleged that services and assistance had been provided to respondents but that they had failed to rectify the problems. After a preliminary hearing, the trial court authorized the petition and ordered the children removed from respondents. The children were eventually placed in a foster home in Traverse City. After their removal, respondents’ son was assessed and diagnosed with autism

spectrum disorder.

At a pretrial hearing on April 21, 2017, respondents’ attorney informed the trial court that he had spoken with respondents "at length" the previous day and that respondents wished to enter a plea to jurisdiction rather than proceed to a trial. Respondents’ attorney stated:

We went over the petition, and picked out portions we believe ... will allow the Court to take jurisdiction. I explained to [respondents] if the Court takes jurisdiction then they're going to have to abide by the conditions and terms of the parent agency treatment plan, as well as recommendations ... after the psychological [evaluations are] done. They are both in agreement with that.

I explained to them that they would have a right to a trial on the issue of jurisdiction before the Court or jury. They've agreed to waive those—or that right. I've also went over [sic] the rights to have witnesses called and subpoena witnesses and things of that sort.

They are going to tender a plea this morning, understanding that if they don't comply with the case service plan, eventually the Court will entertain termination of parental rights. ...

The trial court subsequently gave respondents an abbreviated advice of rights, stating as follows:

I just want to ensure that you do understand that if you do enter a plea, that is if you admit allegations that enables the Court to take jurisdiction, that you then are submitting to the jurisdiction of the Court. You must participate in and benefit from a case service plan, an initial admonition from the Court is going to be we want you to be reunified with your children, however, if you do not cooperate with and benefit from the provisions of the case service plan, you're risking termination of your parental rights. ...

When asked whether they understood, both respondents answered "Yes." Respondents also indicated that they were entering their pleas of their "own free will." The trial court accepted respondents’ pleas. As summarized by respondents’ attorney, the factual basis for the pleas was respondents’ joint admission that services had been "provided to them over the course of the last couple of years," "those services did not result in an improvement of their home situation," they had "neglected their children because the home was not fit for them because it was unsanitary," and they were facing eviction.

Respondents were subsequently convicted of fourth-degree child abuse, MCL 750.136b(7), arising out of the same circumstances alleged in the initial petition in this case and were sentenced to 90 days in jail. Respondents indicated that they did not want to arrange any face-to-face visitation with the minor children while incarcerated. When respondents were released from jail in November 2017, they were homeless, unemployed, and actively seeking public assistance. They moved into a motel and made arrangements to move into an apartment a few weeks later.

According to the caseworker, Amanda Fisher, as of a review hearing on May 14, 2018, the children were doing well in foster care, and respondents had been making steady progress. Respondents had completed parenting classes, they had obtained suitable housing, they were engaging in therapy, and they were acting appropriately during supervised weekly visits with the children, which they had attended consistently. On the basis of respondents’ progress, Fisher recommended that petitioner be given discretion to permit unsupervised visitation. However, the daughter had asked for an opportunity to meet with respondents before any unsupervised visitation was permitted, and the daughter's therapist offered to perform family counseling sessions. The trial court agreed and entered an order to that effect. In an attempt to qualify for a housing subsidy, however, respondents intentionally became homeless. Consequently, no unsupervised visits ever occurred.

In July and August 2018, the daughter's therapist, Paula Kilcherman, held several family therapy sessions with the daughter and respondents. During those sessions, respondents tended to blame the daughter for the children's removal. Near the end of August 2018, the family therapy sessions were terminated at the daughter's request. The daughter believed that respondents had not changed, and she was upset with what she perceived as their failure to take "responsibility for their behaviors." Thereafter, the daughter consistently maintained that she wanted to "move on" and have no further contact with respondents.

Petitioner subsequently filed a supplemental petition seeking termination of respondents’ parental rights. In October 2018, the children's lawyer-guardian ad litem (LGAL) moved to suspend further visits between respondents and the minor children pending a dispositional hearing concerning termination. Two caseworkers—Fisher and Danielle Mankin—testified in support of the LGAL's motion, stating that suspension of further visits would best serve the children's interests and noting that the daughter had refused to participate in any further visits with respondents. Fisher noted that the son was excited for visits but that the visits also seemed to cause him anxiety. The trial court granted the LGAL's motion to suspend visitation pending a hearing concerning termination.

By the December 2018 review hearing, respondents had obtained a new home, which petitioner deemed to be appropriate. At the parties’ agreement, the proceedings were adjourned to give the children an opportunity to visit the home. The visit took place either on or around Christmas 2018. Although respondent-mother believed that the visit went well, the daughter informed Kilcherman that she was "very upset" because respondents had made "promises" to her that were "contingent on her ... coming home."

In January 2019, the daughter gave Kilcherman a letter in which the daughter made allegations of inappropriate sexual behaviors in the past involving herself, respondents, and several of her older brothers. Kilcherman believed that the daughter's allegations were genuine and not a contrived means of seeking termination of respondents’ parental rights.

At the May 2019 review hearing, Kilcherman testified that the daughter had made significant progress since entering foster care. Before her removal, she had been suicidal. Since removal, her general hygiene had improved "tenfold." She had also lost significant weight, stopped wetting the bed, "become successful in school," gained confidence, increased her social interaction with peers, garnered "a few friends," developed better "coping skills," and joined the school marching band. Kilcherman agreed that the daughter was capable of making "informed and responsible decisions about where she wants to live," and she noted that the daughter had made seemingly credible threats on more than one occasion that she would run away from home if she was returned to respondents. The daughter was angry with respondents, and Kilcherman believed that she would suffer behavioral, physical, and emotional regression if she was forced to return to respondents against her will. According to Kilcherman, the daughter required permanency and her uncertainty in that respect was holding her back from achieving...