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In re Smith

Court of Appeals of Michigan

April 19, 2018

In re R. SMITH, Minor.

          Livingston Circuit Court Family Division LC No. 2015-015117-NA

          Before: Murphy, P.J., and Jansen and Swartzle, JJ.

         ORDER

         The Court orders that the April 19, 2018 opinion is hereby VACATED, and a new opinion is forthcoming.

          SWARTZLE, J.

         Respondent Lynnie Feipel's minor son, RS, faced significant medical problems, including cerebral palsy and fetal-hydantoin syndrome. At the age of nine years old, RS weighed approximately 35 lbs. and could not talk other than to say "momma." After a seven-day hearing, the trial court terminated respondent's parental rights to RS and this appeal followed. Several weeks prior to oral argument, RS passed away. This Court cannot, therefore, reunite respondent and RS regardless of the merits of her appeal. Yet, concluding that the appeal is not moot because respondent faces collateral legal consequences as a result of the termination, we reach the merits and hold that the trial court did not err in terminating respondent's parental rights.

         I. BACKGROUND

         Respondent had two biological children: an older daughter who was placed in a guardianship with respondent's mother in 2006, and a younger son who remained in respondent's care until petitioner intervened in 2015. The younger son, RS, was born in 2006 and was the only child subject to this appeal. [1]

         RS had extensive medical problems, which essentially form the basis for both his initial placement in foster care and the decision to terminate respondent's parental rights. Respondent testified that RS suffered from cerebral palsy. RS started having myoclonic-epilepsy seizures when he was a year old; they occurred approximately every other month and were triggered when he was woken suddenly or heard loud noises. He also had asthma and was prone to severe vomiting, which required the use of various feeding tubes. RS weighed only 35 lbs. at nine years old.

         RS also suffered from fetal-hydantoin syndrome, which caused muscle spasms, and he had a small cerebellum and cranium. RS was unable to walk or sit up on his own and could not talk other than saying "momma." He wore a vest for chest congestion and used a suction machine. RS required a specialized wheelchair for movement and a special feeding chair to be fed upright. Even with special foot braces and a stander, RS could only stand upright for a short period three times a day. When he was not at school, he spent the majority of his time in bed.

         Respondent and RS had a lengthy history with Child Protective Services (CPS). In October 2015, petitioner moved the trial court to take jurisdiction over RS and remove him from respondent's home. The petition alleged that respondent was unable to provide adequate medical care for RS, that respondent and RS had missed 40 doctor appointments in the previous 10 months, and that respondent refused to allow service providers to come to her home. The petition also alleged that, during a home visit in October 2015, the caseworker saw RS's grandmother smoking in the home next to an oxygen breathing machine. Eleven people were living in the three-bedroom home, and the caseworker did not observe any medical supplies or medical bed for RS. The petition further alleged that respondent was suspected of having deliberately removed a stomach tube from RS's stomach, allegedly to prevent RS's discharge from the hospital during one of his stays there. The petition also contained allegations about respondent's mental health, lack of employment, and inability to stop other family members from smoking in the home.

         The trial court authorized the petition on October 21, 2015, at which time it made RS a ward of the court and placed him in petitioner's care. In December 2015, respondent entered a plea of admission to several allegations contained in the petition. She acknowledged most of the above allegations and admitted that RS did not have his own room, his medical bed and other equipment were stored in the garage, and others in the home smoked. She also admitted that she had anxiety, depression, and a bipolar disorder. Respondent testified that she was married to and living with William Barnes, despite his extensive criminal history, which included a conviction for domestic violence. She acknowledged that her prior history with CPS included numerous allegations of domestic violence between herself and Barnes and that petitioner had offered services to her and RS in the past.

         A parent-agency treatment plan was put in place in January 2016. The treatment plan required respondent and Barnes to obtain a psychological evaluation, continue mental-health counseling, obtain employment and housing, properly care for RS's medical needs, attend all of his medical appointments, follow the medical recommendations, participate in a substance-abuse assessment and random drug screens, contact the agency for transportation help if needed, and complete a domestic-violence assessment.

         Review hearings were held regularly. At a review hearing in April 2016, respondent's caseworker, Ann Kotch, stated that respondent had reported that she had been fired from her part-time job and had been removed from the waiting list for subsidized housing. The trial court noted that it had reviewed reports submitted for respondent and Barnes, and that respondent and Barnes had made inconsistent statements to various service providers. At a review hearing in July 2016, another caseworker, Jessica Girz, and the prosecutor reported that all of the barriers to reunification remained the same-Barnes had not been drug testing, respondent was unemployed, and respondent was harassing caseworkers and threatening to sue them. Respondent's counsel further acknowledged that respondent had not attended all of RS's medical appointments.

         Finally, at a review hearing in October 2016, Kotch advised the trial court that respondent's therapist had reported that respondent refused to address her role in RS's removal. Respondent had attended six therapy sessions and requested a new therapist, but had not provided information about a replacement or releases for information. The guardian ad litem reported that respondent had only attended 17 of 54 doctor appointments. Accordingly, petitioner requested that the goal be changed to termination. The trial court authorized the petition due to respondent's non-compliance with her treatment plan.

         Petitioner filed a supplemental petition in November 2016 requesting termination of respondent's parental rights under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). Also around this time, respondent's parenting time was suspended after she filed a baseless CPS complaint against RS's foster parents and was involved in an altercation with Kotch at one of RS's hospital appointments.

         A seven-day termination hearing was held between February and May 2017. Regarding her relationship with Barnes, respondent testified that she was aware that Barnes had a criminal history, including a conviction for domestic violence, and that this history prevented Barnes from visiting RS. Still, respondent denied that Barnes was ever violent toward her. Respondent acknowledged Barnes's history of substance abuse and mental-health issues and stated that, although Barnes participated in random drug testing, he had not provided those records to petitioner.

         With respect to respondent's own mental-health concerns, she testified that she had been attending therapy and that she no longer needed to take anxiety medication. One of the recommendations after her psychological evaluation was that she see a psychiatrist, but she had not seen one for more than two years. She was taking medications prescribed by her primary-care doctor and had not provided therapy records to her caseworker.

         Respondent acknowledged having had a substance-abuse problem in the past, but testified that the problem was behind her. Respondent testified that she had not completed all of the required drug screens and had stopped testing after November 2016. According to respondent, she stopped testing because she was not provided with transportation assistance, though she acknowledged she did not request this assistance. She later stated that transportation was not really a barrier for her to attend her services because a bus stop was only a quarter of a mile from her home. Respondent acknowledged that her caseworker had arranged for a service to come to her home for testing, but stated that she did not allow them to come into her home because it was an invasion of her privacy.

         Regarding RS's medical appointments, respondent claimed that she attended all of the appointments of which she had been informed. Still, respondent acknowledged that she missed some other appointments for various reasons, including transportation problems, her own conflicting appointments, and her belief that the appointments had been cancelled or that she was not allowed to attend. Later, however, respondent denied that she had missed any appointments due to transportation problems.

         Respondent denied that she pulled out RS's stomach tube and claimed that she received information that a nurse had confessed to pulling out the tube, although no such information was offered for the record. Respondent testified at length about the mechanisms for feeding RS through his stomach tube, but she complained that no one had given her instructions for any special cleaning or care needed in connection with the use of the tube.

         Respondent acknowledged that employment was an issue she needed to address and claimed that she was looking for work and trying to obtain her GED. Still, respondent admitted that she did not tell her caseworker about her job search. Respondent later testified that she had not looked for work, explaining that she had been busy with court. ...


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