In re Terry

Decision Date22 May 2000
Docket NumberDocket No. 214617.
Citation240 Mich App 14,610 N.W.2d 563
PartiesIn the Matter of Tony TERRY and Sandrea Hankston, Minors. Family Independence Agency, Petitioner-Appellee, v. Lakia Terry a/k/a Lakia Richards, Respondent-Appellant, and Willie Hankston and Tony Corthion, Respondents.
CourtCourt of Appeal of Michigan — District of US

Marc T. Dedenbach, Flint, for Lakia Terry.

Before MARK J. CAVANAGH, P.J., and HOLBROOK, JR., and MICHAEL J. KELLY, JJ.

MARK J. CAVANAGH, P.J.

Respondent Lakia Terry appeals as of right the family court order terminating her parental rights to her minor children, Tony Terry and Sandrea Hankston, pursuant to M.C.L. § 712A.19b(3)(c)(i); MSA 27.3178(598.19b)(3)(c)(i) (conditions that led to adjudication continue to exist and are not likely to be rectified within a reasonable time) and (g) (parent, without regard to intent, fails to provide proper care or custody for the children). We affirm.

Respondent's two children were taken into the court's custody at different times. Tony was removed from respondent's care in November 1996, when he was about 2 ½ years old. Respondent gave birth to Sandrea in July 1997; Sandrea was removed from respondent's custody in October 1997. Both children were removed as a result of respondent's failure to provide medical care necessary for the children's health and safety, as well as her unstable living situation. In January 1998, petitioner filed its request to terminate respondent's parental rights to both children.

At the June 1998 hearing regarding the petition to terminate respondent's parental rights, evidence was presented that respondent has been diagnosed as developmentally disabled. Christine Rice was respondent's caseworker from June 1996 through April 1997. Rice testified that respondent loved her children, had good intentions, and tried to cooperate. However, respondent did not seem to understand the seriousness of Tony's medical problems or his need for a permanent home. Furthermore, respondent's mental limitations affected her ability to follow through on necessary tasks. For example, respondent often failed to complete the necessary paperwork to obtain funding for housing and furniture within the time required.

Sandrea was placed on an apnea monitor between August 1997 and April 1998. The monitor should have been on the child constantly unless she was being supervised so that any breathing difficulties could be observed. However, while Sandrea was in respondent's care, the monitor was in use only a minimal amount of time. When Wendy Jamrog, Sandrea's caseworker, questioned respondent, the latter admitted that she was not using the monitor on the child. In addition, respondent had not refilled the prescription for Sandrea's medication for a reflux condition that interfered with the child's breathing; respondent would have needed to refill the prescription if she had been giving Sandrea the medication as instructed.

Connie Giguere was the supervisor of the Developmental Disabilities program at Genesee County Community Mental Health (GCCMH). Giguere worked with respondent from the end of January 1997, when respondent requested services, until March 20, 1998. Giguere was aware of respondent's problems in following through with tasks such as finding housing, obtaining furniture, and arranging for utilities to be turned on. Giguere believed that respondent could learn to take care of these things, given time and experience. However, it is not sufficient for someone merely to tell respondent what to do; she needs someone to take her through each step, possibly multiple times. Moreover, whenever there is a change in circumstances, respondent needs help addressing new problems.

At the time of the termination hearing, Giguere thought that the children would be at risk if respondent were to live with them outside a structured, supervised setting. Giguere estimated that it would take respondent an additional two or three years to learn many basic parenting skills. Giguere attributed respondent's deficiencies to the fact that she had been abused as a child and had not had any effective role models on how to be a good parent. Giguere believed that respondent could learn to be more independent, but that she would always need assistance during difficult or stressful periods.

Lynn Caron testified that she was the case manager for the family at Alternatives for Children and Families. Caron stated that both children required asthma treatments four times a day, as well as other medications. Respondent had a history of missing doctor's appointments and failing to fill prescriptions. Caron spoke to respondent about the importance of the medical treatment, but respondent did not seem to comprehend everything. For instance, when Sandrea went off the apnea monitor, respondent became excited because she thought that this meant that she would get the children back.

In November 1997, the children's foster mother allowed respondent to take the children for an outing, and respondent did not return on time. Respondent got into a fight with the foster mother and drove off with Sandrea's apnea monitor in her car. Respondent held on to the monitor for three days; Caron had to go out to respondent's home to convince her to return it. According to Caron, respondent did not understand that the child's need for the monitor involved a life-or-death situation.

Caron described respondent as having limited abilities. Although respondent loved her children, was bonded to them, and had good intentions, Caron did not believe that she was capable of being a good parent or caring for the children's medical needs. When respondent was distracted by other matters, she often forgot about the children's requirements. In addition, while respondent's conduct with Sandrea was appropriate during visits, she usually left it to Caron or the foster mother to discipline Tony and did not seem to understand how to deal with a four-year-old child. Respondent needed someone to live with her, not just oversee her progress. Caron was not aware of any person, either friend or family member, who could provide respondent the support that she needed.

Respondent testified that she had seldom used Sandrea's monitor because she had held the baby almost constantly, and the doctor had explained that Sandrea only needed to be on the monitor when she was not being supervised. With regard to the November 1997 incident, respondent explained that she did not return the monitor when she dropped off Sandrea because the foster mother threw respondent out of the house and would not let respondent give her the monitor.

Respondent had been prescribed Prozac, and she stated that it helped her to keep focused and accomplish more on her own. She had not taken Prozac while she had been breast feeding Sandrea, but she was back on the medication at the time of the hearing. Respondent had recently obtained a job at McDonald's, and she had been told that she was just as fast a worker as a person without delayed development.

Respondent stated that she had found parenting classes to be beneficial, but she recognized that she needed more classes to help her learn to discipline the children. Respondent was learning how to manage her money and pay bills. Respondent planned to return to school in the fall so that she could obtain her general equivalency diploma (GED). While she was in school, she would place the children in day care, which she would pay for herself from her own earnings. Respondent did not know how much day care would cost.

On September 3, 1998, the family court issued its findings and conclusions on the record. The court found that respondent's testimony regarding her failure to use Sandrea's apnea monitor for days at a time was not credible and that respondent had endangered the child. The court noted the testimony that respondent required dayto-day assistance in caring for the children and that it would take her "two to three years ... to learn the basic things that children need." The court concluded that, while respondent loved her children, she did not have the ability to care for them. Accordingly, the family court determined that the statutory grounds for termination of respondent's parental rights had been established under M.C.L. § 712A.19b(3)(c)(i) and (g) and that termination of respondent's parental rights was in the children's best interests. The court terminated respondent's parental rights, as well as the parental rights of Tony Corthion (possibly Tony's father) and Willie Hankston (Sandrea's father). The court denied respondent's motion for reconsideration.

I

Respondent contends that the court lacked jurisdiction to terminate her parental rights because Corthion was not properly served with notice of the termination proceedings.1 Whether a court has personal jurisdiction over a party is a question of law, which this Court reviews de novo. Poindexter v. Poindexter, 234 Mich.App. 316, 319, 594 N.W.2d 76 (1999).

A failure to provide notice of a termination proceeding hearing by personal service as required by statute, M.C.L. § 712A.12; MSA 27.3178(598.12), is a jurisdictional defect that renders all proceedings in the family court void. In re Atkins, 237 Mich.App. 249, 250-251, 602 N.W.2d 594 (1999). Nevertheless, we conclude that respondent's argument is without merit. Respondent does not challenge the validity of service on herself, nor does she argue that any defects in the service on Corthion somehow affected her rights. Because notice of the proceedings involves a personal right belonging only to Corthion, respondent lacks standing to argue that service on Corthion was defective. Any deficiency in the service on Corthion affects only the family court's decision to terminate his parental rights.2 See In re EP, 234 Mich.App. 582, 598, 595 N.W.2d 167 (1999) ("A plaintiff must assert his own legal...

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