In Re Waldron Minors ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re WALDRON, Minors. September 15, 2022
No. 360341
St. Joseph Circuit Court
Family Division
LC No. 2020-000686-NA
Before: MURRAY, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
Respondent appeals as of right the order terminating his parental rights to the minor
children under MCL 712A.19b(3)(j) (reasonable likelihood that children would be harmed if
returned to parent’s care). On appeal, respondent argues that the trial court impermissibly
terminated his parental rights solely on the basis of his present incarceration. We disagree and
affirm.
I. BACKGROUND
Petitioner initiated this case by filing a petition on October 9, 2020, in which it requested
the removal of the children BW, EW, LW, SW, and AW from the home of the children’s mother,
Mercedes Flores, with whom they were living.1 Respondent was incarcerated at the time. The
petition alleged that, prior to his incarceration, respondent lacked stable housing, having been
kicked out of multiple homes due to his behavior. The petition also stated that Flores had reported
that respondent was an alcoholic and abusive towards Flores, including an incident in 2019 when
he threw a pregnant Flores down a flight of stairs.
Due to respondent’s incarceration, the factual basis for the petition pertained almost
exclusively to Flores, namely her failure to properly supervise the children. The petition alleged
that on August 15, 2020, police responded to a call and found BW, EW, and LW playing alone by
the side of the road while Flores was asleep at home. Flores was charged with fourth-degree child
1
Flores was a respondent below and her parental rights were also terminated, but she has not
appealed.
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abuse for the incident. The petition also alleged that on September 23, 2020, during an
unannounced home visit, the children were found awake in the living room, unsupervised, and SW
answered the door and said that Flores would not wake up. Flores eventually came to the door,
but would not let petitioner into the home. Petitioner asked Flores to take a drug test, and it came
back positive for methamphetamine. The petition also alleged that on September 30, 2020, SW
was found alone outside at 6:30 a.m. waiting for the bus wearing only a pajama shirt, and shorts,
with no shoes. The home was dark, and SW appeared to be the only one awake. Lastly, the
petition alleged that on October 1, 2020, Flores allowed petitioner to view the home, and petitioner
observed that there was no working electricity or heat (though a kerosene heater was observed in
the living room), no running water, and there was little food. Flores took a drug screen, and it
tested positive for methamphetamine and marijuana. On the basis of these incidents, the petition
alleged that the children’s home was unfit due to neglect, cruelty, drunkenness, criminality, or
depravity, and asked the trial court to order the children removed from the home.
The children were removed by way of an ex parte order the day before the petition was
filed. The order stated that it was contrary to the children’s welfare to be left in Flores’s care
because the children were frequently left alone unsupervised, the home lacked electricity and food,
and Flores admitted to illicit drug use. The order placed the children under the care and supervision
of the Department of Health and Human Services (DHHS).
A preliminary hearing was held the same day that the petition was filed—October 9, 2020.
Respondent was not at this hearing, but Flores was. Following the hearing, the court ordered that
it was contrary to the welfare of the children to remain in Flores’s home for the reasons specified
in the previously entered ex parte order. The order noted that the children were not all in the same
placement due to the number of children.
A second preliminary hearing was held on November 5, 2020, and respondent was in
attendance. Respondent denied the allegations in the petition, and therefore the matter was set for
trial.
The court held several more hearings, but respondent did not attend those due to apparent
difficulties with the prison he was housed in. The first hearing he was able to attend again was on
June 24, 2021. At that hearing, respondent withdrew his request for a trial and admitted to certain
allegations in the petition. Respondent testified that he was currently in prison, and that he had
been in prison since his arrest on May 8, 2020. Before his arrest, he did not have custody of the
children because he lacked stable housing and was dealing with substance abuse issues. On the
basis of respondent’s admissions, the trial court took jurisdiction over the children. An order of
adjudication was signed the same day. An order of disposition was also signed that day, and it
ordered respondent to attend and participate in any services available while incarcerated.
Eventually, when progress in the case was seemingly stalling, petitioner requested that the
goal be changed from reunification to adoption, and the trial court granted the request.
Accordingly, on October 27, 2021, petitioner filed a petition to terminate respondent’s parental
rights. The petition requested termination of respondent’s parental rights under MCL
712a.19b(3)(g) and (j).
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Trial on this petition commenced on January 5, 2022. Susan Pennock, the foster care
worker for the children, testified that the children were in foster care and were doing well in their
placements. Pennock noted that the children were not all placed together because they did not
have a foster home or an appropriate relative who could take all five children; the five children
were divided into two separate placements. SW, EW, and BW were placed together. All three
were in counseling, and all had been diagnosed with PTSD and anxiety “related to the trauma in
their life.” Pennock explained that the “trauma” that the children experienced referred to “the
instability of them being left and found alone, multiple times . . . without proper supervision.” It
also referred to “physical abuse” and the children’s “overall anxiety” of their needs not being met,
including insufficient housing and utilities. According to Pennock, SW, EW, and BW were
showing improvement in their placement through consistency.
Pennock testified that LW and AW were likewise doing well in their placement. They
were also in counseling. Pennock said that, while AW and LW were “becom[ing] more stable,”
they were having difficulty in school, which was being addressed. AW had also been diagnosed
with Tourette Syndrome. Pennock explained that, with AW’s and LW’s issues, a parent needed
“to be able to understand trauma” and “be a consistent, sober parent in order to safely parent [the
children], and to ensure that all of their needs are being met.” Pennock testified that all of the
children were in pre-adoptive placements, and that the placements scheduled sibling visits for the
five to be together once a month.
Pennock testified that respondent had been incarcerated throughout the case, and his
earliest release date was September 7, 2023. Pennock testified that, prior to his incarceration,
respondent did not have stable housing—he was in and out of homeless shelters “living house to
house.” He also did not have consistent employment. Both of these issues concerned Pennock
because the children needed structure, and respondent had not shown an ability to even meet “just
their basic needs.”
Pennock further testified that while he was incarcerated, respondent had completed a
substance abuse treatment program. Pennock, however, could not say whether respondent had
benefited from the program because “you have inherent compliance when you are incarcerated.”
Pennock also testified that, shortly before trial, respondent had enrolled in a “parenting type
course” provided at the prison. Pennock noted, however, that she had first encouraged respondent
to enroll in the course when she found out about it in May 2021, and that she had not heard about
respondent’s efforts to enroll until August 2021, at which time respondent told Pennock that his
enrollment in the parenting course “was denied because it conflicted with his substance abuse
course.” Pennock emphasized that it was important for respondent to participate in a parenting
course because he needed to learn the skills necessary to safely parent the children. Pennock said
that this was especially true for the children in this case because they had “been significantly
traumatized by their past” and respondent needed to be able to understand how to keep them safe
and secure. Similarly, Pennock testified that it was important for respondent to participate in
mental health treatment—which Pennock noted was unavailable to respondent in prison—because
respondent needed to have coping skills to maintain stability for himself and the children. Due to
the lack of resources available to respondent while incarcerated, Pennock testified that if
respondent’s rights were not terminated, she would still not recommend reunification until at least
several months after respondent was released and he demonstrated that he was able to remain sober
and participate in services.
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Pennock testified that respondent had been communicating with the children through
monthly letters. Pennock agreed that all of respondent’s letters were appropriate. Despite these
letters, SW, EW, and BW’s therapist told Pennock that the children did not have “any type of
emotional connection” to respondent—they rarely talked about him, and they “reported concerns
with physical abuse while in his care.”
Brooke Thomas, one of the foster parents to SW, BW, and EW, testified that those children
had been in her care for 15 months. According to Thomas, when the children came into her care,
“they were very withdrawn, malnourished, and fearful,” but “today, they are thriving. They are
growing. They are in school. They are in counseling. And they are doing extracurriculars, and
they are doing amazing things.” Thomas explained that the children had a good schedule and
routine, received medical care, and had a good support system between herself, her husband, their
biological children, and the foster placement’s family and friends.
Thomas confirmed that all three children in her care have PTSD, and all share “similar
fears of being removed from the home they are in now, losing the ground that they’ve made, food,
bedding, clothing,” and things of that nature. Thomas also testified that all three children had to
have significant dental work done. BW’s was particularly bad—he had to go to a hospital for the
dental work to be done. SW’s dental work was divided into three “rounds” because it was “so
severe that they couldn’t do it all at once.”
Thomas testified that the children do not ask about either parent, but when they talk about
their parents, “[t]hey do not share any good memories about their father.” Thomas said that EW
rarely spoke about respondent, but she did tell stories about respondent “smacking the children.”
All three children expressed fear of respondent. Thomas testified that BW, in particular, had night
terrors about “being removed and stolen from the home and not having a safe place to be.” Thomas
said that SW similarly expressed fear about leaving the foster home, that she feared going “back
to her former life, that it would just go back to how it used to be . . . .” According to Thomas,
when the children receive the letters that respondent writes, they do not engage with the letters—
EW and BW will walk away when Thomas reads them the letters, and SW will listen, but “she
doesn’t actually retain that we’ve even read letters to her.”
Respondent testified that his current release date was September 7, 2023, but he was
eligible to have that reduced by another 8.5 months, which meant he could be released as soon as
January 2023. Respondent had been incarcerated since May 8, 2020. Respondent testified that he
had a job lined up with his father upon his release from prison, and that he had “multiple” other
opportunities “just due to Covid and nobody wanting to work.” He conceded that housing may be
an issue until he could save up enough “money for first month’s rent down and deposit.” He also
conceded that he did not have a car or a license, but thought that he would be able to quickly buy
a “cheap car” and get his license.
Respondent testified that he was incarcerated for burglary, but when asked for specifics
about the crime, he said he could not remember because he was so intoxicated at the time of the
incident. He said that he “wasn’t aware” that he was incarcerated until he woke up the next day.
He said he was intoxicated with alcohol. Respondent testified that, before he was incarcerated, he
was struggling with addiction. He was not involved with Flores or the children at that time because
he was living in Indiana while Flores was going back and forth between Michigan and Ohio, and
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respondent lacked transportation. He said that, “[h]alf the time,” he “didn’t even know where” the
children were. Respondent denied that he ever hit the children, and said that “they might be
confused.” He also said that he was “not the one that did it,” and agreed that the children were
liars when asked.
Following the hearing, the trial court issued an oral ruling. The court first noted
respondent’s admissions at the adjudication hearing that, before his May 8, 2020 arrest, he could
not provide proper care and custody of the children because he lacked stable housing and struggled
with substance abuse. The court then turned its focus to the children. It noted the children’s ages—
ranging from five years old to ten years old—and found that, based on the evidence presented at
trial, all the children had experienced “complex trauma throughout the time that they lived with
their parents.” The court further found that, as a result of the parents’ neglect and abuse, all the
children suffered from ongoing issues, including PTSD and anxiety problems. The court also
noted evidence demonstrating that, since removal, the children had made significant progress, and
had shown improvements in their mental health, stability, and overall development. The court
then pointed to other evidence suggesting that these improvements could only be sustained through
positive, long-term “structure, routine, clear expectations, love, support, and stability.” The court
believed that the foster placements could provide this, and said that it was “very fortunate that
these children have both landed in these specialized foster homes where they have landed. They
have thrived.”
Turning to respondent, the court noted that respondent’s earliest release date was, at the
time of trial, September 7, 2023, but respondent had represented that he could be released as soon
as January 2023, which was one year from the time of trial. The court credited respondent for
participating in substance abuse classes while in prison, and acknowledged that he could complete
“only so many things” while incarcerated. The court also acknowledged respondent’s desire to
participate in parenting classes. But the court found that respondent’s availability for the children
was “a long ways” away, the earliest being one year from trial.
Turning to the statutory grounds, the court found that petitioner had failed to establish
grounds for termination under MCL 712a.19b(3)(g) because, being incarcerated, respondent was
not financially able to provide proper care and custody for the children. Nevertheless, the court
found that petitioner had established grounds for termination under MCL 712a.19b(3)(j). The
court noted that this subsection looks at both potential physical and emotional harm to the children.
The court began by reiterating that the children “have experienced complex trauma” while in
Flores’s and respondent’s care. The court noted the testimony that at least SW, EW, and BW had
“continuing fears and terror of being returned to parent’s care.” The court credited the children’s
statements that they were physically abused by respondent. The court ultimately concluded that,
based on the evidence of the harm that the children had suffered while in respondent’s care and
their fear of returning to respondent’s care, the children would likely be emotionally damaged if
returned to respondent’s care.
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The court then found that termination was in the children’s best interests, 2 and terminated
respondent’s parental rights. This appeal followed.
II. STANDARD OF REVIEW
On appeal, respondent argues that the trial court erred by terminating his parental rights
under MCL 712a.19b(3)(j). We disagree.
This Court “review[s] for clear error a trial court’s finding of whether a statutory ground
for termination has been proven by clear and convincing evidence.” In re Moss, 301 Mich App
76, 80; 836 NW2d 182 (2013). A finding is clearly erroneous if the reviewing court is left with
the firm and definite conviction that a mistake was made. In re JK, 468 Mich 202, 209-210; 661
NW2d 216 (2003).
III. ANALYSIS
MCL 712A.19b(3)(j) states that a “court may terminate a parent’s parental rights to a child
if the court finds, by clear and convincing evidence,” that “[t]here is a reasonable likelihood, based
on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned
to the home of the parent.” The harm contemplated by MCL 712A.19b(3)(j) is not only physical
but also emotional harm. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011).
The trial court found that petitioner had established MCL 712A.19b(3)(j) by clear and
convincing evidence based on petitioner’s evidence about the emotional damage respondent’s
conduct had already wreaked on the children, and its conclusion that this harm was reasonably
likely to reoccur if returned to his care.
When the children were taken into custody, respondent was in prison, and the children were
residing with Flores. Yet respondent testified that, even before he was imprisoned, the children
were living with Flores while he turned to drugs and alcohol. Nothing in the record suggests that
he provided any support for the children during this time. He said that “[h]alf the time,” he “didn’t
even know where” the children were. Before that, however, the children were in his and Flores’s
care, before they got “evicted” from respondent’s mother’s house.
After the children came into petitioner’s care and custody, it became apparent that, during
the time that they were in Flores’s and respondent’s care, they experienced significant trauma.
They all needed counseling, and three of the children were diagnosed with PTSD. The children
expressed significant fears about returning to respondent’s care, and the youngest even had night
terrors about it. A number of the children told their foster placements that respondent had
physically abused the children, a claim that the trial court credited, despite respondent’s testimony
that the children were lying. See In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005)
(explaining that this Court gives deference to the trial court’s superior position to judge the
2
The court provided a lengthy explanation for its finding that termination of respondent’s parental
rights was in the children’s best interests, but we need not elaborate on that finding because it is
not disputed on appeal.
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credibility of witnesses). The children also had no emotional connection to respondent, and of the
three youngest, two would walk away when respondent’s letters were read to them, and the third
would listen but not “actually retain” what was read. Aside from their emotional trauma, the
children had significant medical needs that were not being met while they were in Flores’s and
respondent’s care. The oldest was diagnosed with Tourette Syndrome and was finally getting
treatment for that. SW needed extensive dental work, so much so that she had to be subjected to
“three rounds” of dental treatment to address it. Similarly, BW needed such extensive dental work
that he had to have the procedure performed in a hospital.
While respondent had made progress in the case while in prison, the trial court nevertheless
concluded that there was a reasonable likelihood, based on respondent’s past conduct, that the
children would be subjected to emotional harm if returned to respondent’s care. The emotional
harm that the children had suffered due to respondent’s past conduct was not readily apparent
when the children first came into the care and custody of the DHHS; the harm revealed itself over
time as the children opened up to their caretakers and counselors about their time with respondent.
We conclude that the trial court’s finding was not clearly erroneous given the extensive trauma
that the children had already suffered in respondent’s care and the lifelong implications of that
trauma (such as the need for ongoing counseling), as well as, particularly, the fact that the children
expressed considerable fear at the mere thought of returning to respondent’s care.
Respondent contends that this case is similar to In re Mason, 486 Mich 142, 161; 782
NW2d 747 (2010), in which our Supreme Court declared, “The mere present inability to personally
care for one’s children as a result of incarceration does not constitute grounds for termination.” In
that case, the respondent had provided for the children before his incarceration, had complied with
his case-service plan as best he could while incarcerated, and the children had been placed with
respondent’s relatives when removed. Id. at 147-149. Relevant to this case, the In re Mason Court
explained why the facts of that case did not support termination under MCL 712A.19b(3)(j):
Termination on this ground was clearly erroneous because no evidence showed that
the children would be harmed if they lived with respondent upon his release.
Significantly, just as incarceration alone does not constitute grounds for
termination, a criminal history alone does not justify termination. Rather,
termination solely because of a parent’s past violence or crime is justified only
under certain enumerated circumstances, including when the parent created an
unreasonable risk of serious abuse or death of a child, if the parent was convicted
of felony assault resulting in the injury of one of his own children, or if the parent
committed murder, attempted murder, or voluntary manslaughter of one of his own
children. MCL 712A.19a(2); MCL 722.638(1) and (2). The DHS did not present
any evidence suggesting that respondent had ever harmed a child. Indeed, the errors
in this case are particularly troubling given that respondent’s criminal history
consisted largely of short jail stints for comparatively minor offenses. The record
shows that he supported his family before his imprisonment and no evaluation was
ever conducted to gauge whether he was likely to offend again. [In re Mason, 486
Mich at 165.]
This case is similar to In re Mason in that respondent was incarcerated and arguably
complied with his case service plan as best he could while incarcerated. That is where the
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similarities end, however. The children here were not placed with respondent’s relatives, but with
foster care homes that, luckily, were specialized to work with children who had suffered trauma.
More significantly, respondent here did not provide for the children before his incarceration, and
the children were forced to live in conditions so detrimental to their emotional well-being that
several of them were diagnosed with PTSD, and all were in counseling.
This case is more similar to In re Hudson. This Court explained the underlying facts of
that case as follows:
The minor children came to the attention of the Department of Human
Services (DHS) because of deplorable housing conditions and allegations of sexual
abuse by respondent against her 14–year–old biological son, whom she had given
up for adoption at birth but with whom she had recently reconnected. The child,
A., revealed that he and respondent had engaged in sexual intercourse on numerous
occasions after she located him through MySpace. The trial court asserted
jurisdiction over the minor children, and the matter proceeded to hearing.
Respondent ultimately pleaded guilty to one count of first-degree criminal sexual
conduct, MCL 750.520b, relating to her sexual activity with A. and was sentenced
to a term of nine years to 30 years in prison. The trial court thereafter terminated
respondent’s parental rights to her minor children. [In re Hudson, 294 Mich App
at 263.]
This Court found that termination was appropriate under a number of grounds, including MCL
712A.19b(3)(j). On that ground, this Court explained
Respondent’s behavior had already deprived the children of several years of a
normal home with her. Her ongoing denial not only turned the children against A.
because they believed he was a liar, but also violated the children’s trust in
respondent when they came to learn more of the allegations against her.
Respondent’s behavior will have lifelong and profound effects on her children as
they come to grips with the fact that she was guilty of first-degree criminal sexual
conduct with her own 14–year–old biological child. [In re Hudson, 294 Mich App
at 268.]
Like in In re Hudson, respondent’s behavior here has “already deprived the children of
several years of a normal home with” him. Id. His behavior also “will have lifelong and profound
effects on [the] children . . . .” Id. Most importantly, like in In re Hudson and unlike in In re
Mason, “incarceration was not the sole reason for termination in this case.” Id. at 267.
Accordingly, while this case is not on all-fours with In re Hudson, we believe that it is more
analogous to In re Hudson than In re Mason.
For the reasons previously explained, respondent’s rights were not terminated solely
because he could not presently care for the children due to his incarceration, nor solely due to his
criminal history. Rather, the trial court terminated respondent’s parental rights because it found
by clear and convincing evidence that there was a reasonable likelihood, based on respondent’s
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conduct, that the children would suffer emotional harm if returned to his care. For the reasons
explained, this finding was not clearly erroneous.3
Affirmed.
/s/ Christopher M. Murray
/s/ Colleen A. O’Brien
/s/ James Robert Redford
3
At one point in his brief on appeal, respondent seems to argue that he was not provided reasonable
efforts prior to May 2020, but it is unclear the point respondent is trying to make with this
argument. The children were not removed until October 2020, and defendant was not adjudicated
until June 2021. Respondent does not explain why he believes that reasonable efforts were
required in May 2020.
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