In re McEwen

D was removed from respondents’ care based in large part on the father’s drug use, criminal history, and mental instability. Before D was even adjudicated a temporary ward, the father was arrested and convicted of drug possession/distribution and felony-firearm. He was sentenced to a prison term of 6 to 20 years.  It was clearly established, the father was imprisoned for such a period D would have been deprived of a normal home for a period exceeding two years, and the father failed to provide for her proper care and custody. Because of his incarceration, it was impossible for the father to participate in any meaningful services. He was unable to provide D with proper care and custody while in prison. In addition, given the father’s admitted extensive drug problems and history of criminal conduct, it was clear his lifestyle would have placed D at risk of harm if she were returned to his care.

What is interesting about this case is the termination of Respondent Mother’s parental rights.   The CoA found there was a lack of clear and convincing evidence in the record substantiating a statutory ground for termination. Respondent Mother’s rights were terminated pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j).

One of the reasons the initial petition seeking temporary custody of D was filed was because respondent mother had been repeatedly warned that Respondent Father should not be near D because of his instability. Additionally, protective services workers wanted Respondent Mother to keep D away from Respondent Father until he could be assessed, but she failed to do so. Workers were concerned about Respondent Mother’s emotional stability.

All of the PAA’s requirements were successfully completed, though in a tardy manner. Substance abuse was not an issue for Respondent Mother. As for housing, respondent mother was living with her fiancé, Thomas Schweniger, in a twobedroom townhouse in Harbor Beach, Michigan at the time of the termination trial. The home was childproofed and the second bedroom was equipped with a crib, toys, and a walk-in closet full of clothes for D. By all accounts, Schweniger was a stable and supportive individual and active in respondent mother’s endeavors to reunite with D. Housing, therefore, was no longer an issue. Respondent Mother also successfully completed parenting classes and numerous other job training and resource management classes. Respondent Mother’s emotional stability was what needed the most attention. Baker admitted that Respondent Mother had substantially complied with the PAA and that Respondent Mother appeared to have benefited from parenting classes and was more emotionally stable. A parent’s compliance with the PAA is evidence of her ability to provide proper care and custody for her child. In re JK, 468 Mich 202, 214; 661 NW2d 216 (2003).

The Court also found that the trial court relied too heavily on the bonding assessments of Dr. Wayne Simmons. The CoA believed that the assessment of Dr. Simmons was heavily influenced by the statements of the foster mother, who described difficulty with the child’s behavior after and before visits. A third bonding assessment was performed by Dr. Robert Plummer. Dr. Plummer was provided with the journals of the foster parents, but his assessment relied more heavily on his observations of Respondent Mother’s visits with the child. During the assessment, Dr. Plummer noted that Respondent Mother was attentive, interactive, and caring. Respondent Mother interceded at times to make sure that D would not get hurt. D did not appear to fear respondent mother, and she did not try to get away from Respondent Mother. Dr. Plummer noted, “I did not observe any evidence of any lack of attachment.” The CoA clearly felt Dr. Simmons was overly influenced by the foster parents. The CoA wrote:

The foster mother denied that thoughts of adoption played a role in her testimony and statements, but it is obvious that she formed a strong
attachment to Dakota. In making its decision, it appears as if the trial court performed a best interests analysis before determining whether there was a statutory ground for termination, and determined that Dakota would be better off with her foster family than with respondent mother. Such a factor could not be considered in the initial determination of whether respondent mother was neglectful. In re Mathers, 371 Mich 516, 530; 124 NW2d 878 (1963). As our Supreme
Court has stated:

“It is totally inappropriate to weigh the advantages of a foster home against the home of the natural and legal parents. Their fitness as parents and question of neglect of their children must be measured by statutory standards without reference to any particular alternative home which may be offered to the [child].”
[In Re JK, 468 Mich 202, 215 n 21; 661 NW2d 216 (2003), quoting Fritts v Krugh, 354 Mich 97, 115; 92 NW2d 604 (1958), overruled on other grounds, In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993).]

The CoA reversed and remanded the termination of Respondent Mother’s parental rights, but affirmed the termination of Respondent Father’s parental rights.

This case seemed to turn on two things 1) Respondent Mother’s substantial compliance with the parent-agency agreement and 2) the Trial Court’s reliance on Dr. Simmons’ testimony.  Clearly, the CoA was convinced that the foster parents were attempting to sabotage Respondent Mother.

Click here to view the opinion: In re McEwen