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In re Richardson

Court of Appeals of Michigan

July 25, 2019

In re S. R. RICHARDSON, Minor.

          Saginaw Circuit Court Family Division LC No. 17-035259-NA

          Before: Sawyer, P.J., and Borrello and Shapiro, JJ.

          BORRELLO, J.

         In these consolidated appeals, [1] respondents appeal the termination of their parental rights under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist) and (g) (failure to provide proper care and custody). For the reasons set forth in this opinion, we vacate the trial court's order and remand this matter for further proceedings.

         I. BACKGROUND

         This case initially came to the trial court by way of a Department of Health and Human Services (DHHS) initiated child-protective proceeding regarding SRR on June 26, 2017, after SRR tested positive for the presence of marijuana at birth. The petition alleged that mother had an extensive history of substance abuse that had resulted in the termination of her parental rights to her two older children. The prior terminations occurred in 2015 and were based on mother's substance abuse and methamphetamine production. Father was not the father of those two older children. The petition further alleged that mother had failed to benefit from the services the DHHS had provided, that mother had knowingly used marijuana while she was pregnant, and that mother had placed SRR at an unreasonable risk of harm through her substance abuse that resulted in SRR's prenatal marijuana exposure. The only petition allegation against father, other than that he was SRR's father, was added to the petition by oral amendment at the adjudication plea hearing. This allegation stated that father was currently incarcerated with the Michigan Department of Corrections (MDOC) and unable to provide a care plan for SRR.

         The trial court assumed jurisdiction on the basis of mother's and father's respective pleas of admission to the petition allegations. The petition had originally sought termination at the initial disposition. However, the referee noted at the adjudication hearing that mother had "shown some significant desires to make major changes in her life that weren't made during the termination back in 2015" and that "[g]iven her age and situation the Court is of the opinion that she deserves to have that opportunity based on the information I have at this point in time so I would be looking at having the termination taken off the table to both these individuals and work with them." The referee warned mother that this was "a huge break" for her and that she was "on what we call a short leash." The referee also stated, "The key is-you understand-it's kind of your last straw given that you've had significant treatment-my understanding at least-or opportunities for treatment previously. And this is a chance for you to make that final step to completely get away from substances." The referee further indicated that termination could become an option again if mother did not "stay on the track of sobriety."

         The initial disposition was held on August 28, 2017. Father was incarcerated but the court was unable to secure his presence by video link because father had been transferred to a different facility, apparently unbeknownst to his attorney or the court. MDOC staff also apparently ignored the orders that had been sent out indicating that father was to be made available for the hearing. Nonetheless, father's attorney waived any issue with the lack of father's presence, stating that he had "no objection proceeding without him today" subject to maintaining father's "right to object" to anything "out of the ordinary."[2] The referee stated, "Being that this is original disposition with him in prison there isn't a whole lot we can do at this point for him . . . we'll get him up to speed and it will be probably the next hearing that's gonna be most important for him anyways." [3]

         Mother had begun an inpatient substance abuse treatment program at Kairos Treatment Facility approximately one week before this hearing. Mother enrolled herself in this program. The court report also indicated that mother's parenting time visits had been positive with no concerns. Mother indicated that she had enrolled in a parenting class, which she had personally arranged to be provided to her and other women at Kairos, and was "willing to take as many parenting classes as-as need be." Mother also stated that at Kairos, she was participating in therapy and was working with doctors to get her seizures under control through medication. Her seizures were not completely under control yet.

         The referee then questioned mother as follows about her seizures:

Q. I am extremely knowledgeable and familiar with seizures. Obviously, do you-have they given you a diagnosis of-sometimes they call it epilepsy, sometime they call is [sic] seizure disorder.
A. Epilepsy is my diagnosis.
Q. Okay. All right. And are they working with a neurologist over there right now?
A. Yes.
Q. Okay, and who's the neurologist working on it?
A. At-I believe it's Abbott.
Q. Okay.
A. Ah, that sounds about right.
Q. All right. Have you been working with a neurologist up to this point? 'Cause you said you have seizures.
A. I was not. I was using medical marijuana.
Q. Okay.
A. So.
Q. What you will probably find out in talking with a neurologist and everything, marijuana can exacerbate the seizures, depending on the types that you're having and everything because of fact-so it can make it worse for you. So, the question you want to maybe verify and everything with all the information I've been presented with is a problem for people with seizures.[4]
A. It was working for me but that's why I've got to try (inaudible)-
Q. Right.
A. -at the time, you know.
Q. Right.
A. I'm going-I will give it up. I want my baby back, -
Q. Right.
A. -so I'll play the battle with medication and do what I ...

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