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STATE OF MICHIGAN COURT OF APPEALS

UNPUBLISHED October 18, 2011 In the Matter of T. R. CRANE, Minor. No. 302908 Presque Isle Circuit Court Family Division LC No. 10-000025-NA

In the Matter of T. R. CRANE, Minor.

No. 302911 Presque Isle Circuit Court Family Division LC No. 10-000025-NA

In the Matter of L. BOOTH, Minor.

No. 302913 Presque Isle Circuit Court Family Division LC No. 09-000030-NA

In the Matter of B. CRANE, Minor.

No. 302914 Presque Isle Circuit Court Family Division LC No. 09-000031-NA

In the Matter of B. CRANE, Minor.

No. 302916 Presque Isle Circuit Court Family Division LC No. 09-000031-NA

Before: M. J. KELLY, P.J., and FITZGERALD and WHITBECK, JJ. PER CURIAM. -1-

This is a consolidated appeal of several trial court orders terminating respondents K. A. Dehring's and E. Crane's parental rights to their minor children. In Docket No. 302908, Dehring appeals as of right from the trial court's order terminating her parental rights to her minor son, TRC, pursuant to MCL 712A.19b(3)(b)(ii) (parent failed to protect child's sibling from physical injury or abuse), (g) (failure to provide proper care or custody), and (i) (parent's rights to child's sibling previously terminated due to serious and chronic neglect). And in Docket No. 302911, Crane appeals as of right from the trial court's order terminating his parental rights to TRC pursuant to MCL 712A.19b(3)(b)(i) (parent physically injured or abused child's sibling), (g), and (i). In Docket No. 302914, Dehring appeals as of right from the trial court's order terminating her parental rights to her minor daughter, BC, pursuant to MCL 712A.19b(3)(b)(ii), (c)(i) (conditions that led to the adjudication continue to exist), (c)(ii) (other conditions exist that have not been rectified), and (g). And in Docket No. 302916, Crane appeals as of right from the trial court's order terminating his parental rights to his minor daughter, BC, pursuant to MCL 712A.19b(3)(b)(i), (c)(i), (c)(ii), and (g). Lastly, in Docket No. 302913, Dehring appeals as of right from the trial court's amended order terminating her parental rights to her minor son, LB, pursuant to MCL 712A.19b(3)(b)(ii), (c)(i), (c)(ii) and (g). (Crane does not appeal this decision because he is not LB's father.) We affirm in each appeal. I. FACTS A. OCTOBER 2009 PETITION Dehring and Crane were living together when the Department of Human Services (DHS) filed a petition in October 2009 for temporary custody of BC, who was then approximately four months old, and her half-sibling, LB, who was then approximately two years old. The petition alleged that Dehring's rights to another child were terminated in 2000. On October 12, 2009, BC's pediatrician, Dr. Charles Christensen, identified bruising on BC's jaw that was consistent with an intentional grab mark, which neither Dehring nor Crane could explain. According to Dr. Christensen, BC also had failure to thrive issues, such as an inability to gain weight. The trial court authorized the petition, and the children were placed in foster care with S. Jore. Dehring and Crane were allowed supervised parenting time. In November 2009, Crane tendered a plea to the allegation regarding BC's injury. Crane initially attempted to tender a plea of admission to that allegation and another incident involving his parenting time with BC. Crane stated that while BC was on his leg, he grabbed her chin after his hand slipped. He also stated that he handled BC too roughly on one occasion during parenting time. The trial court was not satisfied that the admission was sufficient to establish the type of intentional application of force indicated by Dr. Christensen. After further questioning, Crane agreed that he intentionally grabbed BC's jaw. He also admitted that BC screamed when he picked her up during the parenting-time incident. Following these admissions, Crane changed his plea to a no contest plea to the allegation that he injured BC by intentionally and forcefully grabbing her jaw. The trial court took jurisdiction over BC and LB based on the no contest plea. -2-

At the initial dispositional hearing in December 2009, the trial court ordered both Dehring and Crane to comply with the case service plan or parent/agency agreement, which they both signed. Both Dehring and Crane confirmed that they could comply with the plan. At a review hearing in March 2010, the trial court received psychological evaluations and substance abuse assessments for both Dehring and Crane. The substance abuse assessment for Dehring completed in January 2010 indicated that she presented herself as a rare social drinker. She stated that she last used marijuana in 2007. There was no recommendation for substance abuse treatment. Crane's assessment indicated that he had a prior criminal record involving alcohol use. He was described as "attempting to present as a social drinker when he received a dependence diagnosis four years ago." He admitted to weekly use of substances, with his last use of alcohol in December 2009, and his last use of marijuana in January 2008. Long-term residential treatment and a psychiatric evaluation were recommended. Wayne Simmons, a licensed psychologist, conducted the psychological evaluations. Simmons concluded that Crane "had lowered ability for parenting as a result of his profoundly limited intelligence." And he also had concerns about Crane's "low frustration tolerance." Simmons questioned Crane's ability to be a primary caretaker of the children. Similarly, Simmons was concerned about Dehring's poor judgment in allowing Crane to be the primary caretaker for the children despite her knowledge of his limited intelligence and limited frustration tolerance. He added that there were also concerns about allegations that Dehring and Crane had been seen heavily intoxicated in public while with the children. Dehring advised the trial court that she reads any mail to Crane. Although Crane's counsel indicated that Crane did not receive a letter from former caseworker, Dawn Murphy, which explained how he could obtain long-term residential substance abuse treatment, Murphy testified that Dehring and Crane confirmed their receipt of the letter. Dehring and Crane refused child protective services worker Doug Gilmet's request for random drug screens. Dehring also told Gilmet that she did not think they would pass a voluntary drug screen because they smoked marijuana. The parent/agency agreement was revised so that Dehring and Crane would understand that drug screens were expected. Dehring and Crane each provided a negative drug screen after signing the revised agreement, which Murphy read to Crane. Murphy's successor, Mindi Herriman, testified that she was assigned to this case in March 2010. She observed Dehring and Crane show appropriate parenting with the children. The trial court found that the DHS's efforts to preserve and reunify the family were reasonable, but progress had been slow. At the next review hearing in June 2010, Herriman testified that all drug screens were negative. Herriman had referred Crane for a psychiatric evaluation to assess his cognitive functioning to clarify what services would be helpful to him, but he was denied services. Herriman did not know why services were denied because she had only just received releases to obtain the information. Herriman testified that she was referring Dehring and Crane to a new counselor, Barb Kowalski, because the prior counselor, Judy Thompson, was not a "good match." Herriman believed that services should focus on parenting skills and anger or frustration -3-

issues. She indicated that Dehring and Crane were having unsupervised parenting time with the children on weekends, but they were not ready for overnight parenting time because counseling goals had not been accomplished. The trial court advised Dehring and Crane to take advantage of Kowalski's counseling. In October 2010, the trial court conducted a joint review and permanency planning hearing. Caseworker Herriman testified that Dehring and Crane were attending counseling sessions with Kowalski. In addition, arrangements were being made for Crane to obtain a psychiatric evaluation. Dehring was pregnant and expecting a child in November 2010. Herriman had concerns about Dehring and Crane's financial stability because Crane was in the process of reapplying for social security benefits and Dehring would not be eligible to reapply for assistance from the DHS as part of a Work First program until November 2010. Dehring had previously participated in the program, but was fired from her job for lying. Herriman believed that Dehring and Crane's only income sources at the time of the hearing were a student loan received by Dehring and house payments from Dehring's mother. Dehring was reportedly attending college. Herriman also reported that parenting time was suspended because of problems that arose during unsupervised, overnight parenting time. BC had flea bites when the children returned to the foster home from overnight parenting time in late August 2010. Dehring told Herriman that the fleas were in her yard, not inside the home. LB and BC again had flea bites after the next overnight parenting time in September 2010. Dehring again told Herriman that there were no fleas inside the home, but was required to buy products to treat the home before overnight parenting time was allowed. After the next overnight parenting time, Dehring told Herriman that there were fleas inside the home. The children again had flea bites when they were returned to the foster home. According to Herriman, fleas could be seen jumping off the children's clothes. Herriman decided to suspend parenting time until the fleas were eradicated from Dehring and Crane's home because she was concerned that Dehring and Crane would expose others to fleas if they visited the children at her office. She planned to personally inspect the home for fleas. The trial court determined that insufficient progress was being made to alleviate or mitigate the circumstances that caused the children to remain in foster care. Dehring and Crane were ordered to sign, comply with, and benefit from a case service plan. The trial court also found that reasonable efforts were not made to finalize a court-approved permanency plan for returning the children to Dehring and Crane. The trial court found that Dehring and Crane were not making reasonable progress. B. DECEMBER 2010 PETITIONS Dehring gave birth to TRC in December 2010. Upon her release from the hospital, TRC was placed in her siblings' foster home pursuant to an emergency removal order. In an amended petition, Gilmet requested that the trial court take jurisdiction over TRC and terminate Dehring and Crane's parental rights. In a separate supplemental petition, Herriman requested that the trial court terminate Dehring and Crane's parental rights to BC and Dehring's parental rights to LB. She alleged that Dehring and Crane had not benefitted from or fully complied with services provided to them.

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The trial court conducted a preliminary hearing on the amended petition involving TRC. Gilmet opined that TRC would be at a great risk of harm if released to Dehring and Crane because they had not complied with past services and had no heat in their home. Herriman testified that she did not find fleas when she inspected the home on October 8, 2010, but she was not able to enter Dehring and Crane's living quarters after this inspection. Herriman's most recent attempt to inspect the home was unsuccessful because Dehring would not let her into the house, but Dehring told her that there was no heat. Dehring testified that arrangements had been made through the DHS's emergency relief program to take care of the problem. The trial court found probable cause to authorize the amended petition regarding TRC. Dehring and Crane tendered pleas of admission in January 2011. Dehring admitted that her parental rights to another child were previously voluntarily terminated, that she did not fully comply with the case service plan for BC and LB, that BC and LB received flea bites during parenting time, that her home did not have an operable furnace, and that she had no financial means to support a newborn baby. Crane admitted the allegations regarding the furnace and lack of financial support for a newborn baby. C. FEBRUARY 2011 TERMINATION HEARING Dr. Christensen's testimony regarding BC's unexplained bruising was admitted at the termination hearing. Dr. Karrin Licht, a pediatrician, also testified that she saw BC in October 2009. At that time, BC still had bruising on her face that was consistent with someone intentionally trying to hold the mouth shut. In addition, BC was diagnosed with failure to thrive, which Dr. Licht described as a child not growing well, particularly with respect to weight, without a biological explanation. A failure to thrive can relate to the child's calorie intake or poor emotional connection with a parent. BC gained weight quickly over the next one or two months. The children's foster mother, Jore, testified that LB was quiet and reserved when he was placed in her home in October 2009. BC was very hungry. She gained one or two pounds in the first week. But both children appeared happy or excited to visit with Dehring and Crane. John Smith testified that he previously worked for the DHS as a family independence specialist. He worked with individuals, including Dehring and Crane, who seek cash assistance. Dehring and Crane qualified for cash assistance in 2009, but were required to participate in a work program. Dehring was exempt from working for 90 days after she gave birth to BC, but Crane had to participate. Because Crane had difficulty meeting the required work hours, Dehring volunteered to switch so that she, and not Crane, would work. In approximately January 2010, Dehring and Crane lost cash benefits for three months after a second instance of noncompliance with the program requirements. Another three-month penalty was imposed in September 2010. Simmons testified by telephone regarding the psychological evaluations he conducted in January 2010. When asked if a psychiatric evaluation would have been helpful for Crane, Simmons opined that he would have been a candidate for antidepressant medication, but he does not have a severe mental illness. Simmons was principally concerned about Crane being a primary or unobserved caretaker for the children. He was capable of understanding skills -5-

necessary to raise a child, "but does not have enough intelligence to gain a point of leverage over his frustration." Simmons was still concerned that Dehring allowed Crane to watch the children despite the concerns about his intellectual and frustration levels. Simmons could not recommend returning the children to Dehring and Crane at this time. Dehring and Crane's first therapist, Thompson, testified that she primarily conducted joint counseling sessions with Dehring and Crane. Neither respondent seemed motivated to work with her. They seemed incapable of getting past their anger about the children being removed from the home. When Thompson's services ended, she recommended that Dehring see a therapist who is not required to report to the DHS. Dehring and Crane's second therapist, Kowalski, testified that her counseling sessions with them began in July 2010. Crane never acknowledged having an anger issue, but later indicated that he has anger or frustration issues and talked about being frustrated when the children cry. Kowalski's goal in working with Dehring was to support and assist her to gain the strength to meet her goals. Dehring and Crane missed seven sessions, including four sessions between October 14 and November 11, 2010. Kowalski felt that they gave up trying to get their children back when unsupervised parenting time was terminated. Kowalski did not believe that Dehring and Crane would intentionally hurt or neglect their children, but opined that they could not provide for them adequately without outside help. Herriman testified that Crane told her that he was not interested in learning how to read because Dehring reads for him. Dehring and Crane did attend a parenting session. But Herriman opined that, overall, Crane did not demonstrate an ability to obtain employment, make improvements, or assist Dehring in maintaining the house. Dehring did not provide proper care for LB and BC because she was repeatedly sanctioned by the Work First program. Herriman did not believe that the children could be safely returned to Dehring and Crane. Caseworker Dana Holcomb testified that she was assigned to the case in January 2011. Holcomb met with Dehring and Crane at their home. She was not allowed inside the lower half of the house, but she saw the upstairs area. The bathroom was dirty, and Holcomb had safety concerns because items such as cigarettes were accessible by children. She encouraged Crane to restart counseling sessions with Kowalski, sign a release so that she could speak with Kowalski, and schedule the psychiatric evaluation. Because Crane did not commit to doing so, Holcomb contacted his attorney. Crane then signed the release in February 2011. But Crane told her that he did not intend to have the psychiatric evaluation until the termination hearing concluded, and he would see how things played out in court. Overall, Holcomb did not believe that Dehring and Crane had the financial means to take care of the children and were not investing in services. Crane testified that he is unemployed, had not received social security disability income benefits for nine years, and only earned approximately $100 in 2010. He completed school through the ninth grade, but could not read or write. Crane testified that although he and Dehring own a Jeep, he has never had a driver's license, only a permit to drive with a licensed driver. Crane indicated that his criminal history includes convictions in 2003 and 2005 for unlawfully driving a motor vehicle. He was convicted of larceny in 2004 and attempted larceny in 2005. He received residential treatment for alcoholism in connection with one of his

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convictions. He admitted using marijuana three times after signing the original parent/agency agreement. Crane also estimated that he drinks up to a 12-pack of beer each day. With respect to his participation in services, Crane indicated that he took a parenting skills class as part of his treatment plan. Crane further claimed that he knows how to care for a child. Crane conceded that he had not yet had a psychiatric evaluation, and acknowledged that he had stopped attending counseling services with Kowalski for two months. Crane testified that he would not object to having his parental rights terminated if Dehring was not involved in this case. Dehring testified she did not like her past therapist, Thompson, because their "personalities just clashed." At present, Dehring could only tolerate living with her mother under their current arrangement, which involved the mother having a separate apartment in the house. The utilities are presently being paid by Dehring's mother, who was seeking some financial assistance to pay for them. Dehring admitted that she currently has no financial ability to support her family. She was unemployed, but was looking for a job. She has approximately $60 in a bank account. Dehring admitted seeing fleas in the house during unsupervised parenting time with the children in September 2010, but she chose not to do anything about it at that time. The trial court found statutory grounds for terminating Dehring and Crane's parental rights and also found that termination was in the children's best interests. Dehring and Crane now appeal. II. STATUTORY GROUNDS FOR TERMINATION A. STANDARD OF REVIEW Both Dehring and Crane argue that the trial court erred in finding that the statutory grounds for termination were established by clear and convincing evidence. To terminate parental rights, the trial court must find that the DHS has proven at least one of the statutory grounds for termination by clear and convincing evidence.1 We review for clear error a trial court's decision terminating parental rights.2 A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made.3 We give regard to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.4

1 2

MCL 712A.19b(3); In re Sours Minors, 459 Mich 624, 632; 593 NW2d 520 (1999).

MCR 3.977(K); In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000); In re Sours Minors, 459 Mich at 633.
3 4

In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003). MCR 2.613(C); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).

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B. TERMINATION OF DEHRING'S PARENTAL RIGHTS Dehring argues that the evidence was insufficient to establish any of the statutory grounds for termination. She contends that the evidence showed that she is a capable parent who had the capacity to provide a stable environment for her children. With respect to MCL 712A.19b(3)(b)(ii) (parent failed to protect child from physical injury or abuse), we find no clear err in the trial court's finding that Dehring could have prevented Crane from intentionally injuring BC. While there was no evidence of past instances in which Crane injured the child or a sibling, a psychological evaluation indicated that Dehring had chronic problems with perceptual inaccuracies, which led to poor decision-making. Considering this evidence in light of the evidence that Dehring allowed Crane to act as the primary caregiver, with knowledge of his low frustration level, we find no clear error in the trial court's finding that

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