in Re boykins/nadell Minors ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re BOYKINS/NADELL, Minors. January 19, 2016
No. 327656
Jackson Circuit Court
Family Division
LC No. 06-005748-NA
Before: SHAPIRO, P.J., and O’CONNELL and BORRELLO, JJ.
PER CURIAM.
Respondent-mother, M. Boykins, appeals as of right the trial court’s order terminating
her parental rights to her minor children. We affirm.
I. BACKGROUND FACTS
The oldest child disclosed that the children’s father, J. Nadell, had sexually abused her.
During the investigation, all the children disclosed neglectful, abusive conditions, including
being locked alone in a room until they were forced to urinate and defecate on themselves, being
subject to physical and sexual abuse, and witnessing sexual acts between Boykins and Nadell.
Therapist Carla Hines testified that the children were very traumatized and difficult to
parent, and Boykins seemed to be in denial about the abuse and neglect the children had suffered
at her home. Hines opined that for the children to feel secure in Boykins’s care, Boykins would
have to acknowledge the children’s abuse, take responsibility for it, apologize, and demonstrate
that her environment could be safe. Joseph Kehrer-Scharphorn, the children’s caseworker,
testified that Boykins did not progress in services and did not fully acknowledge the extent of the
trauma the children experienced. Kehrer-Scharphorn explained that unless Boykins
acknowledged the children’s trauma, she would be unable to help them heal from it. He also
testified that, despite completing parenting classes, Boykins was unable to parent all of the minor
children together. Boykins testified that she understood the trauma the children went through
and took responsibility for her part in it, but denied that she was directly involved in traumatizing
the minor children.
The trial court ordered Boykins’s parental rights terminated, finding that there was clear
and convincing evidence that at least one statutory basis supported termination. However, the
electronic recording of the final day of the proceeding was corrupted and unavailable. The trial
court’s oral rulings—including its specific findings of fact—and some of the testimony of
witnesses who testified in Boykins’s favor are not part of the record on appeal.
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II. CONSTITUTIONAL RIGHT TO PARENT
First, Boykins contends that termination of her parental rights was improper because she
has a constitutional right to parent her children.
Parents have a significant constitutional liberty interest in the care and custody of their
children. In re Miller, 433 Mich. 331, 346; 445 NW2d 161 (1989); MLB v SLJ, 519 U.S. 102, 119;
117 S. Ct. 555; 136 L. Ed. 2d 473 (1996). This right entitles the parent to due process before the
state may remove the parent’s child from his or her custody. In re Sanders, 495 Mich. 394, 403-
404; 852 NW2d 524 (2014). But once the Department has established that a parent is unfit, the
parent’s rights yield to the state’s interests in protecting the child. Id. at 409-410; Stanley v
Illinois, 405 U.S. 645, 652-653; 92 S. Ct. 1208; 31 L. Ed. 2d 551 (1972).
Boykin was entitled to due process protections in the removal and termination
proceedings, but she does not challenge the procedures in any way. Boykins is simply incorrect
that she has an absolute constitutional right to parent her children. We reject this meritless
argument.
III. STATUTORY GROUNDS
Next, Boykins contends that the trial court erred by finding that statutory grounds
supported terminating her parental rights. We disagree.
We review for clear error the trial court’s findings supporting termination. MCR
3.977(K); In re Trejo Minors, 462 Mich. 341, 356-357; 612 NW2d 407 (2000). A finding is
clearly erroneous if we are definitely and firmly convinced that the trial court made a mistake. In
re Mason, 486 Mich. 142, 152; 782 NW2d 747 (2010).
We are unable to review the trial court’s factual findings in support of its ultimate
determination that the petitioner proved at least one statutory ground for termination because the
record before this Court is incomplete. The appellant is responsible for securing and filing the
transcripts of the lower court proceedings. MCR 7.210(B)(1)(a). “When a transcript of the
proceedings in the trial court or tribunal cannot be obtained from the court reporter or record, the
appellant shall take the following steps to settle the record and to cause the filing of a certified
settled statement of facts to serve as a substitute for the transcript.” MCR 7.210(B)(2). The
appellant shall move to settle the facts and set forth a proposed statement of facts. MCR
7.210(B)(2)(a). If the appellee contests the statement of facts, the trial court or tribunal shall
certify a settled statement of facts in sufficient detail to provide for appellate review. MCR
7.210(B)(2)(b) and (c). The appellant shall then file the settled statement of facts with this
Court. MCR 7.210(B)(2)(d).
Boykins’s appellate counsel has failed to follow these clearly delineated procedures.
Thus, we are unable to review the trial court’s findings of fact supporting its determination
because those findings are not part of the record before this Court. The only finding before this
Court is that the testimony supported at least one statutory ground for termination. On the
existing record, we conclude that this finding was not clearly erroneous.
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MCL 712A.19b(3)(g) provides that termination is appropriate if there is clear and
convincing evidence that “[t]he parent, without regard to intent, fails to provide proper care or
custody for the child and there is no reasonable expectation that the parent will be able to provide
proper care and custody within a reasonable time considering the child’s age.” In this case,
multiple therapists and persons involved in the case testified that Boykins refused to
acknowledge her part in the children’s abuse. Hines testified that Boykins could not make
progress in her ability to care for the children unless she accepted responsibility for her actions
and apologized because the children would act out, experience trauma symptoms, and be afraid
of her. Cara Weiler, a clinical trauma interventionist and expert on child trauma assessment,
opined that it was not reasonably likely that Boykins would begin to address her issues for at
least six to nine months, which was too long for the children to wait for permanency.
There was extensive evidence that Boykins was unable to care for and parent the children
and would be unable to do so within a reasonable time. Accordingly, we are not definitely and
firmly convinced that the trial court made a mistake when it found that at least one statutory
ground supported terminating Boykins’s parental rights.1
We affirm.
/s/ Douglas B. Shapiro
/s/ Peter D. O’Connell
/s/ Stephen L. Borrello
1
Other grounds may have included MCL 712A.19b(3)(b) (physical abuse), (c)(i) (failure to
rectify conditions leading to adjudication), and (j) (likelihood of harm).
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