In re Vandalen

• Decision Date: 16 June 2011
• Docket Number: 301127.,Docket Nos. 301126
• Citation: 809 N.W.2d 412,293 Mich.App. 120
• Parties: In re VanDALEN.
• Court: Court of Appeal of Michigan — District of US

293 Mich.App. 120

809 N.W.2d 412

In re VanDALEN.

Docket Nos. 301126

301127.

Court of Appeals of Michigan.

Submitted June 7, 2011, at Detroit.Decided June 16, 2011, at 9:05 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, William P. Nichols, Prosecuting Attorney, and Michael C. Brown, Assistant Prosecuting Attorney, for the Department of Human Services.

Robert A. Manion, Temperance, for the minor children.

J. Henry Lievens for G. VanDalen.Jeffery A. Yorkey, Monroe, for D. Leader.

Before: FORT HOOD, P.J., and DONOFRIO and RONAYNE KRAUSE, JJ.

PER CURIAM.

In these consolidated appeals, respondents appeal as of right the order terminating their parental rights to the minor children under MCL 712A.19b(3)(g) (failure to provide proper care and custody) and (j) (reasonable likelihood that the child will be harmed if returned to the parents' home). Because the trial court did not violate respondents' right to due process, the evidence clearly and convincingly established statutory grounds for the termination of respondents' parental rights, and the termination of respondents' parental rights was in the children's best interests, we affirm.

I

In early 2007, respondents had a child, L. VanDalen, the older child at issue. At the time of his birth, L. VanDalen's meconium tested positive for marijuana. Respondent-mother admitted that she had smoked marijuana when she was four months pregnant before she became aware of her pregnancy, after which she quit smoking it. Children's Protective Services (CPS) conducted an investigation but decided not to remove the child from respondents' care and services were provided to respondents, including substance abuse counseling and parenting services.

When L. VanDalen was only two weeks old, he was hospitalized after a nurse at his wellness checkup noticed oral lesions in his mouth. He also had an abrasion around his nostril. Medical personnel were concerned that the lesions may have been puncture marks in his throat. Dr. Leena Dev, a physician on the hospital's child protection team, evaluated L. VanDalen and opined that the lesions in his mouth could have been caused by trauma, possibly burns caused by hot formula from a baby bottle, or could have been herpes. There was not enough evidence to indicate intentional abuse. But a subsequent skeletal survey revealed that L. VanDalen had a fractured leg (tibia), which could have been caused by pulling the leg back and forth forcefully. Dr. Dev concluded that L. VanDalen's fracture, which was not related to birth trauma, “appeared to be an inflicted fracture consistent with child abuse[.]” Respondents, who were L. VanDalen's primary caretakers, did not know what caused his lesions or how he fractured his leg. According to respondent-mother, L. VanDalen had never been outside of respondents' sight after his birth and they “could only conjecture as to how [his] injuries occurred.” Respondents believed that his fracture could have occurred when the technician drew blood from his ankle/heel area after his birth.

After L. VanDalen was diagnosed with a fractured leg consistent with abuse, petitioner, the Department of Human Services, filed a petition requesting the court to take temporary jurisdiction over him, and he was removed from respondents' care and placed with Linda Golab, respondent-mother's stepmother. The court subsequently assumed jurisdiction over L. VanDalen. Respondent-mother described certain incidents to both the foster-care worker assigned to the case as well as Golab in which respondent-father would cover L. VanDalen's nose and mouth because he thought it was funny to see him squirm and pull on L. VanDalen's legs because he did not like how they bowed. While respondent-mother told the foster-care worker that she did not do anything about it because she thought respondent-father was “playing,” she told Golab that she never trusted respondent-father alone with L. VanDalen and would even take him into the bathroom with her.

After L. VanDalen's removal, respondent-mother cooperated with regard to the services offered and did “anything” petitioner instructed her to do. Respondent-father, however, failed to cooperate or comply with regard to the services. The caseworker told respondent-mother that respondent-father's noncompliance with services would be problematic if they remained together, and her attorney and the caseworker advised her to distance herself from him.

By November or December 2007, respondents had ended their relationship. After respondents separated, respondent-mother expressed her desire that L. VanDalen not be left alone with respondent-father. At that time, respondent-mother, with assistance from Golab, had obtained employment as a nursing aide and had moved into rental housing, independent of respondent-father, that was located closer to L. VanDalen. According to Golab, respondent-mother was doing “fantastic,” indicated she was “done” with respondent-father, was participating in services, and was moving on with her life.

In July 2008, approximately 16 months after L. VanDalen was removed from respondents' care, because of respondent-mother's compliance and progress with services L. VanDalen was placed in her home with intensive in-home family-reunification services in place. Respondent-mother indicated to the caseworker that she remained separated from respondent-father and they did not have a relationship and were planning for L. VanDalen separately. Afterward, respondent-father failed to participate in any services, maintain contact with the caseworker, visit L. VanDalen on a regular basis (only visiting a couple times in approximately six months), or obtain employment or stability.

In November 2008, pursuant to the caseworker's recommendation, the court dismissed its jurisdiction over L. VanDalen and put a custody order in place for respondent-father. At this time, the caseworker believed that respondent-mother would protect L. VanDalen from respondent-father and understood how to prevent physical abuse given her progress with services and her concern about respondent-father visiting L. VanDalen in an unsupervised setting. After the court closed the case, respondent-mother believed that she had primary physical custody over L. VanDalen, with visitation to be determined between respondents, but the caseworker believed that respondent-father was only allowed supervised visits with L. VanDalen, to be supervised by respondent-mother. It was never determined how L. VanDalen sustained his injuries.

Subsequently, the caseworker discovered that respondents had actually reunited and moved in together in October/November 2008 despite respondent-mother's awareness that the caseworker had discouraged her from being with respondent-father. Respondent-mother never indicated to the caseworker that she had gotten back together with respondent-father, and the caseworker would not have recommended dismissal of the case if she had been aware that respondents had reunited. In March 2009, respondent-mother told Golab that respondent-father had changed, that he was excited about being a father, and that they were residing together and were very happy.

II

Around March 2009, respondent-mother became pregnant. During her pregnancy, in April 2009, respondent-mother tested positive for marijuana. Late in 2009, respondent-mother gave birth to D. VanDalen, the youngest child at issue. Respondents were D. VanDalen's primary caretakers. In April/May 2010, respondents and family members noticed that D. VanDalen, who had been developing normally, had regressed developmentally and was no longer progressing as expected. Specifically, they noticed that her toes were pointing downward, that she was not using her legs, and that she would not put any weight on her legs. Family members also noticed that D. VanDalen's eyes looked “dull,” that she had a bump on her back, and that her left foot was swollen. Glenda Shultz, respondent-mother's 16–year–old half-sister, also noticed that D. VanDalen “just wasn't right” because she would cry and scream “like it hurt” when her diaper was changed.

On Friday June 11, 2010, respondent-mother and Glenda, who had arrived at respondents' home earlier in the month to help baby-sit the children over the summer while respondent-mother attended nursing school, left D. VanDalen with respondent-father to go to the library. When they returned, D. VanDalen was lying on the floor sleeping, “whimpering,” and “whining,” and would not wake up. Respondent-mother, who was a certified nursing assistant, thought D. VanDalen might have had a seizure and that she should take her to the hospital, but respondent-father, who believed D. VanDalen was acting normally and was not in any pain, said that respondent-mother was being a “hypochondriac,” that D. VanDalen “was fine, and that respondent mother did not need to take her to the hospital.” Respondent-mother and Glenda continued to try to wake D. VanDalen up by taking off her diaper, which usually awoke her, rubbing her back, rolling her over, talking to her, and taking her outside, but she did not wake up. At least 10 but up to 30 minutes later, D. VanDalen finally awoke but they could not get her to follow a finger visually. Glenda was upset and worried about D. VanDalen, but respondent-mother did not take D. VanDalen to the doctor.

Over the weekend, respondents noted that D. VanDalen, who was teething, was fussier than usual, irritable, sleeping more than usual, and not eating normally. Glenda also noted that D. VanDalen was crying and sleeping a lot more over the weekend, slept all day on Saturday, which was not normal, but acted “fine” on Sunday, June 13, 2010. Respondent-mother attributed D. VanDalen's increased sleepiness to teething.

On Sunday, respondent-father became angry when D. VanDalen spit up on his shirt while he was feeding her, went into a rampage, and started throwing stuff around while D. VanDalen lay on the floor....