In re Semla

In re SEMLA, Minors.

Nos. 356157, 356181

Court of Appeals of Michigan

August 19, 2021

UNPUBLISHED

Berrien Circuit Court Family Division LC No. 2018-000034-NA

Before: Tukel, P.J., and K. F. Kelly and Gadola, JJ.

PER CURIAM.

Respondents appeal as of right the trial court's order terminating their parental rights to their minor children, BS and LS under MCL 712A.19b(3)(c)(i) (failure to rectify conditions that led to adjudication), and (3)(j) (reasonable likelihood of harm). We affirm.

I. FACTS

On April 19, 2018, the Department of Health and Human Services (DHHS) received information that respondents and their two children were living in a camper where the children were improperly supervised and their hygiene was neglected. Before investigating the complaint, DHHS Supervisor Cindy Wallis spoke to Robin Surber, a LaPorte County, Indiana Children's Protective Services (CPS) Investigator. Surber reported that she had been working with the family since early April 2018. At that time, LS was hospitalized and the hospital would not release LS to respondents until they confirmed that they had an appropriate home. Respondents agreed that they would stay in Indiana at the home of respondent-father's grandmother. LS was released from the hospital into respondents' care on or about April 5. Indiana CPS initiated a referral for home-based services to address the family's lice and hygiene issues, as well as medical issues. When service providers arrived at the grandmother's home, however, the family was not there. Indiana CPS eventually discovered that the family had returned to their camper in Michigan on April 5.

After receiving the information, Michigan DHHS investigators visited the camper on April 19, 2018, which was located at Judy's Campground in New Buffalo, Michigan. The DHHS investigators reported that the camper did not have running water or a functional toilet; instead, the family used a five-gallon bucket, which was "full of urine and feces," located in the camper next to the kitchen and next to where the children slept. The camper smelled overwhelmingly of raw sewage and marijuana, and was extremely dirty and cluttered with trash, toys, and clothing.

Marijuana and drug paraphernalia were on a table within the reach of the children. The children were extremely dirty, their clothing was extremely dirty, and they smelled of feces. LS, who was three years old, had no shoes or socks, her feet were extremely dirty, and she was coughing and had a runny nose. BS, who was then five years old, was covered in dirt, and his teeth were dark and appeared rotten.

DHHS attempted to interview the children; LS did not speak much, but BS answered questions. BS stated that respondents used marijuana in his and LS's presence, and that respondents kept marijuana in a cupboard. He reported that they had lice, and that his parents told him that the problem would be taken care of because he would be getting a haircut in the summer. BS stated that he only bathed at his grandmother's house, and that his last visit to his grandmother's house had been 15 days earlier.

DHHS investigators also spoke to the owner of Judy's Campground, who confirmed that the family had been living at the campground for the last two or three winters. The owner reported that respondents traveled with a carnival during the rest of the year and were planning to leave the following week for "Carnival Season." He reported that the camper did not have a proper sewer system and that the family used a five-gallon bucket inside the camper for sewage. He stated that during the winter he saw LS playing in the snow without shoes. He also reported that respondent-father used marijuana heavily.

Investigators also spoke with respondents, who were extremely dirty and had a strong odor. Respondents confirmed that they lived in the camper, and respondent-father admitted that the camper "was a bit messy." He also admitted that he smoked marijuana regularly, and complained that Indiana CPS was harassing the family. Respondent-mother told investigators that LS recently had been hospitalized for pneumonia. Respondent-mother stated that LS had an inhaler, but was unable to locate it.

The children were taken into protective custody that evening at approximately 7:00 p.m., and LS was hospitalized. On April 20, 2018, DHHS filed the petition initiating child protective proceedings in the trial court and seeking removal of BS and LS from respondents' care based upon the condition of the children, the condition of the home, and because the children were being exposed to (then) illegal drug use. The petition asserted that the children were covered in lice, had sores on their feet, heads, and faces, and had scabs on their heads. BS had a cut in his ear that contained a large amount of dried blood. LS had severe diaper rash, dried feces in her diaper, and a severe cough. When the children ate, they used their hands rather than utensils. The petition further asserted that the children's primary care physician reported that she had not seen the children in a long time. The petition stated that reasonable efforts were made to prevent the removal of the children, including CPS investigations in Michigan and Indiana, police investigation, observation of the children, interviews with the parents, and contact with the Pokagon Band of the Potawatomi Indians, of which respondent-mother and the children are members.

On April 20, 2018, the trial court issued an ex parte order placing the children in protective custody. The trial court held a preliminary hearing that same day, during which the trial court ascertained that the children and respondent-mother were members of the Pokagon Band. At the request of tribal counsel, the trial court adjourned the preliminary hearing to permit the tribe to locate a qualified expert witness to testify regarding the cultural child-rearing practices of the tribe. The trial court continued the placement of the children in foster care temporarily pending the completion of the preliminary hearing. The trial court found that reasonable efforts had been made by DHHS to prevent removal of the children, including the investigation by DHHS and by the police, and DHHS's conversations with respondents, the children, and the tribe.

The preliminary hearing continued on May 9, 2018, during which the CPS worker assigned to the case testified that since the previous hearing, efforts had been made to find relatives for possible placement of the children. In addition, DHHS had interviewed respondents regarding housing, and respondents had informed DHHS that they were purchasing a house with the help of relatives. DHHS had ascertained that the tribe would provide medical insurance for the children, had scheduled medical and dental appointments for the children at the tribe, and parenting visits were taking place at the tribe. DHHS had held a family team meeting with respondents, and had scheduled respondents for parenting assessments, psychological assessments, IQ testing, and substance abuse testing. Respondent-father was consistently testing positive for marijuana use.

The foster care caseworker testified that the barriers to returning the children to respondents were housing until respondents obtained possession of their new home and respondents participating in the scheduled assessments to ascertain whether respondents could care for the children. Also testifying at the continued preliminary hearing was a cultural expert for the tribe who testified that the condition of respondents' home at the time the children were removed was not consistent with the child-rearing practices of the Pokagon Band, and that returning the children to respondents' care at that time could result in serious emotional or physical harm.

At the conclusion of the continued preliminary hearing, the trial court noted that both respondents had waived the finding of probable cause, and the trial court therefore authorized filing of the petition. Regarding the children's placement, the trial court found that reasonable efforts as well as active efforts had been made to keep the children in respondents' home. The trial court observed that since the initial emergency removal of the children, DHHS had provided the family with numerous services with the goal of returning the children to respondents' home. However, the trial court found that at that time it was still contrary to the welfare of the children to be placed with respondents until it was determined that the goals of the services had been met. Thereafter, respondents pleaded no contest to the allegations of the petition and the trial court assumed jurisdiction of the children.

Over the next two years, respondents and the children were provided numerous services with the goal of reunification of the family, including medical, dental, and vision care for the children, occupational and physical therapy for LS, individual therapy for both children, trauma assessment for both children, educational services for the children, therapy for both respondents, supervision of parenting time, additional observation of parenting time, transportation for the children to parenting time, Family Team meetings, engagement in the Healthy Families Program, psychiatric evaluation for respondents, assistance with housing for respondents, assistance to respondent-father with Medicaid applications, random drug testing for respondent-father, substance abuse and mental health services for respondent-father, multiple home visits, and relative placement searches.

Despite the efforts of the DHHS and the Pokagon Band, respondents made no sustained progress toward reunification with the children. The children were found to have severe traumas and developmental issues stemming from...