Appendix — Amer v. Department of Social Services

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Supreme Court of the United States

October 1990 Term

REHAB AMER and AHMED AMER,

Petitioners

DEPARTMENT OF SOCIAL SERVICES,

Respondent

Appendix to Petition for Writ of Certiorari to the

Court of Appeals of the State of Michigan

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

Fk CHARD A. SEID (P23642)

Counsel for Petitioners

651 E. Jefferson

Detroit, Michigan 48226

(313) 596-0207

APPENDIX INDEX

Opinion of Court of Appeals,

June 12, 1990 ee @o fe 8 @ e*eeeee#ee#2e?#€¢.¢@#e8e¢#

Opinion of Judge Barsamian,

January 9, Din: cee ebeee e666 06

Order of Termination,

January 9, Se

Disposition of Judge Barsamian,

February 6, 0 ee ee a

Opinion of Judge Maher,

DEGGIE 25, BESS c cccacvessvcerccs

Order of Judge Maher,

SU Hn ROSS 6 eh e eee ee rececesecs

Opinion of Judge Maher,

GCstemer 26, 1966. ..cee- Seeeeseorss

Opinion of Referee McKnight,

September 4, 1984........ Seeveees

Order of Michigan Supreme Court,

July 31, ta é¢éakdws ens 6ewes eeee#ee#es?

Order of Michigan Supreme Court,

September 26, 1990. .cccccccccccses

Parent/Agency Agreement,

June 24, 1986........ coeoececcceccee

Parent/Agency Agreement,

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Excerpts from Criminal Trial.....

Litigation Chronology............

Indented Quoted Material.........

APPENDIX A

STATE OF MICHIGAN

COURT OF APPEALS

In the Matter of MOHAMMED ALI AMER,

SUHIER AHMED AMER and ZINABE AHMED AMER,

Minors.

DEPARTMENT OF SOCIAL SERVICES,

Petitioner-Appellee,

Vv No.

114910

REHAB AMER and AHMED AMER,

Respondents~-Appellants.

Before: Gribbs, P.J., and Cavanagh and R.B.

Burns,* JJ.

PER CURIAM.

Respondents appeal as of right the

order of the probate court terminating their

parental rights to their three children,

Mohammed Ali (date of birth December i11,

1982), Suehier Ahmed (date of birth November

18, 1983) and Zinabe Ahmed (date of birth

December 9, 1986). This order was based on

the probate court's finding by clear and

convincing evidence that a statutory basis for

termination had been established, MCL

712A.19a(e) and (f)? MSA 27.3178(598.19a) (e)

and (f), and that termination was in the best

interest of the children. See MCR 5.974. We

affirm.

In this appeal, the parents argue

that the probate courts decision did not

include specific findings of fact, failed to

articulate the requisite statutory basis for

termination, and was not supported by clear

and convincing evidence. We disagree.

According to the record and the

probate court's factual findings, this dispute

started in 1984 when the Department of Social

Services filed a petition with the probate

court alleging abuse of Samier Amer, Suehier

Ahmed's four-month old twin brother. Samier

had human bite marks on both heels, neck and

left side of the stomach, and also had

fractures to the right humerus, the left

clavicle, the left upper tibia, and the distal

and middle left femur. The five fractures

were all in different stages of healing.

Samier was also diagnosed as failing to

thrive. The petition alleged that the

respondents were unable to explain Samier's

injuries. Doctors did rule out any metabolic

disturbances, disease or deficiency as the

cause of the fractures.

On March 27, 1984, an order for

temporary custody of Samier was entered by the

probate court. Samier was subsequently made

a temporary ward of the court after the court

determined that it had jurisdiction and that

the allegations made in the petition had been

substantiated. At this time, a treatment plan

was designed for the parents.

The parents were subsequently given

a psychiatric evaluation and, at a statutory

review hearing, a return of Samier to the

parents' care was not recommended. The

examining doctor concluded that because the

parents could not admit responsibility for

Samier's condition or show concern, there

could be no change in their behavior and

Samier would remain at risk.

At a statutory review hearing held

on October 18, 1985, the same examining doctor

changed his position and recommended that

Samier be returned to the parents' home with

continued monitoring. The change in position

was based on the doctor's assumption that the

parents had accepted responsibility for their

conduct even though they had never openly

admitted that they had abused Samier. The

probate court ordered extended visitation in

the family home. One month later, on November

22, 1985, Samier was dead.

The department of Social Services

immediately filed a petition requesting the

probate court to assume jurisdiction over the

respondents' surviving children, Mohammed and

Suehier, because of Samier's death while in

his parents’ care. At the hearing held on

October 28, 1986, the probate court found that

one of the respondents was responsible for the

nonaccidental death of Samier while the other

parent failed to protect the child. The court

also found that the parents' decision to seek

medical treatment for Mohammed three months

after he started to experience chronic

diarrhea was not what a rational person would

do when taking care of somebody's medical

needs. On October 31, 1986, the probate court

entered an order making the children temporary

wards of the court.

As to the circumstances surrounding

Samier's death, the autopsy revealed that

there was a fracture to the back of the skull

and that death was caused by head injuries.

The fracture was the result of a blunt force

injury to the head. There was a single impact

and the pattern and extent of the injuries

indicated that Samier's head had been moving

at a great velocity when it struck a fixed

object. In the pathologist's opinion, a slip

and fall in the bathtub - the explanation

offered by the parents - could not have caused

the injuries. The pathologist thought that

Samier would have had to have been swung to

generate the velocity needed to cause this

type of injury because the contusion toc the

brain was on the opposite side of the impact.

This witness' testimony was corroborated by

the testimony of the director of pediatric

intensive care from Children's Hospital.

As to the parents' explanation of

Samier's death, the court compared the

testimony of the emergency room doctor, the

nurse, the police, and the EMS members with

the mother's story and found numerous

inconsistencies. The judge was convinced that

the mother "“orchestrate[d] what would sound

best to the Court, as opposed to what really

happened." The court went on to find that one

of the parents had caused the death of the

child while the other failed to provide

protection.

At the hearing held on December 15,

1986, the court decided that the children were

to remain in foster care and that family

therapy was to continue with the return of the

children the ultimate objective. All three

children were now involved because of the

birth of Zinabe Ahmed on December ninth.

In subsequent proceedings, medical

personnel who evaluated the parents testified

to their belief that therapy that failed to

deal with Samier's death would not prove

helpful in rehabilitating the family. The

parents would not admit to the abuse and it

was felt that they had to address this issue

before the other children could be safely

returned to the family home.

On December 16, 1987, the Department

of Social Services filed a petition requesting

the permanent termination of the respondents'

rights to their children in part because they

had refused to accept responsibility for the

nonaccidental death of Samier. During the

dispositional hearing, the medical personnel

repeated their belief that the respondents

needed to acknowledge the child abuse before

there could be a meaningful change in their

parenting behavior. The medical experts were

convinced that a repeat of what occurred to

Samier was possii’e. Furthermore, the

parents' inability to deal with the abuse

after years of therapy indicated that the

family was untreatable. Denial had become

fixed. Nothing mor? could be done for the

family and a permanent solution was in the

best interests of the family and a permanent

solution was in the best interests of the

children. The probate court found this

testimony persuasive and on January 9, 1989,

entered its order terminating the parental

rights of Rehab and Ahmed Amer.

In termination cases, this Court

reviews the probate court's findings under the

clearly erroneous standard. In re Cornet, 422

Mich 274, 275; 373 NW2d 535 (1985). A finding

is clearly erroneous when, although there is

evidence to support it, the reviewing court is

left with the definite and firm conviction

that a mistake has been made. n re Miller,

433 Mich 331, 337; 445 NW2d 161 (1989). A

decision to terminate is proper if there is

clear and convincing evidence of present

neglect or a serious threat of neglect in the

future. In re Parshall, 159 Mich App 683,

689; 406 NW2d 913 (1987), lv den 428 Mich 909

(1987). Because all the hearings constitute

one continuous proceeding, evidence admitted

at one hearing is considered evidence in all

subsequent hearings. In re LaFlure, 48 Mich

App 377, 387; 210 NW2d 482 (1973), lv den 390

Mich 814 (1973). And how a parent treats one

child is probative of how that parené might

treat other children. Parshall, supra.

By statute,

Where a child remains in foste”

care in the temporary custody of the

court following the initial hearing

provided by section 19 [MCL 712A.19;

MSA 27.3178(598.19)], the court may

make a final determination and order

placing the child in the permanent

custody of the court, if it finds

any of the following:

kkk

(e) The parent or guardian in

unable to provide a fit home for the

child by reason of neglect.

(f) The child has been in

foster care in the temporary custody

of the court on the basis of a

neglect petition for a period of at

least 2 years and upon rehearing the

parents fail to establish a

reasonable probability that they

will be able to reestablish a proper

home for the child within the

following 12 months. (MCL

712A.19a(e) and (f);3 MSA

27.3178(598.19a) (e) and (f).]

After a careful review of the

record, we are of the opinion that the probate

court did make specific findings of fact, that

these factual findings established the

statutory basis for permanently terminating

the custody rights of the parents, and that

the evidence in support of these decisions was

clear and convincing. The court entered

detailed findings of fact and conclusions of

law. The parents' failure to address their

problems while in therapy and their treatment

c® Samier demonstrated their inability to

provide a fit home by reason of neglect and

their inability to reestablish a proper home.

MCL 712A.19a(e) and ce) 3 MSA

27.3178(598.19a) (e) and (f).

Respondents rely on In re Bedwell,

160 Mich App 168, 176-177; 408 NW2d 65 (1987),

to argue that termination based solely on

their failure to follow the treatment plan py

admitting their guilt is not prorer. To begin

with, the probate court did not terminate

respondents' rights solely because they failed

to comply with the treatment plan. The

physical abuse and death of Samier was clear

and convincing evidence of neglect sufficient

enough to terminate the parents' custody

rights in the absence of any proof that this

behavior would not occur again. The probate

court. found the parents unfit and likely to

remain that way after three-and-a half years

of treatment. there was clear and convincing

evidence to support this finding.

The respondents also make a number

of arguments in an attempt to persuade this

Court that their rights to equal protection

and due process were violated. Apparently,

the respondents' right to equal protection

were infringed upon because the standard of

proof used in this case is not as strict as

the one used when an American Indian family is

subjected to the same proceeding. We do not

find this argument persuasive. Respondents’

equal protection argument has been made before

and rejected by a panel of this Court. See In

re Miller, 182 Mich App 70, 75; __| NW2d ___

(1990). We agree with that decision.

The respondents' rights to due

process were allegedly violated because (1)

there was an impermissible shift of the burden

of proof, (2) the requirement of an admission

of guilt violated respondents' right to remain

silent, (3) the DSS did not comply with the

federal policy of family reunification, (4)

the DSS manual was not followed and finally

because (5) the probate court exhibited a bias

and prejudice against the respondents.

As to the impermissible shift of the

burden of proof, the respondents can be

required to come forward with evidence that

the family situation has improved and this

obligation does not violate due process. See

In re Miller, 433 Mich at 344-345.

We decline to address the

respondents' Fifth Amendment argument in depth

for a number of reasons. This issue was never

raised at the trial court level where

appropriate steps could have been taken to

address the problem. Issues first raised on

appeal need not be reviewed by this Court.

Ledbetter v Brown City Bank, 141 Mich App 692,

702-702; NW2d (1985). In addition, in light

of the reasoning behind this Court's decision

in In re Johnson, 142 Mich App 764; ___ NW2d

(1985), we do not believe the issue has

merit.

" We also reject the respondents'

contentions that the steps taken by the

probate court do not comply with federal

policy of the DSS manual. It appears from our

review of the record that reasonable efforts

were made to reunite this family. It is also

apparent from the record that the behavior of

the probate court did not evidence a bias or

prejudice that would entitle the respondents

to a new trial.

Respondents' final challenge

addresses the constitutionality of the probate

code. This challenge has also been previously

made and rejected by this Court. See In re

Martin, 167 Mich App 715; 423 NW2d 327 (1988)

and In re Gentry, 142 Mich App 701; 369 NW2d

889 (1985).

Affirmed.

Roman S. Gribbs /s/

Mark J. Cavanagh /s/

Robert B. Burns /s/

APPENDIX B

Detroit, Michigan

January 9, 1989

EXCERPT

THE COURT: Based on the information

provided to the Court through testimony and

written documents produced as evidence, the

court makes the following findings relative to

this matter, dealing, of course, first with

the petition requesting rehearing for purpose

of termination of parental rights. The court

would also note that in addition to the

testimony and written documentation produced

into evidence and of the exhibits, the court

also had opportunity to review the legal file

and the social file in this matter, which are

considered to be reflective of the history of

this case. In doing that, the court found

that the significant events in this case are

as follows:

That, following that a detaining

order was requested on March 27, 1984,

relative to the child Samier Amer, who was

born on November 18, 1983. And it was granted

pursuant to a 3200 filed by Oakwood Hospital.

And the child was at that point detained at

Oakwood.

On March 28, 1984, a preliminary

hearing resulted in an authorization of the

petition, and placed the child in emergency

shelter care or with suitable relatives, if

any, under the Department of Social Services

supervision. The case was continued to

pretrial on Referee McKnight's docket for

April 16, 1984, and probable cause was waived.

On April 2, 1984, a petition was

filed alleging abuse of the chiid Samier Amer,

who it alleged was four months old, had human

bite marks on both heels, neck and left side

cf the stomach, had injuries described as

fractures to the right humerus, the left

clavicle, the left upper tibia, and distal,

and mid-left femur. There were five in all of

different ages, and was diagnosed as also

failure to thrive. The petition further

alleged that the parents were unable to

explain the injuries, other than to indicate

a babysitter, who they refused to name, and

the child's one-year old brother caused the

bites. Doctors had ruled out metabolic

disturbances or disease or deficiency.

On September 4, 1984, Referee

McKnight found that the allegations contained

in the petition filed on April 2, 1984, had

been substantiated, and recommended that the

child Samier Amer be made a temporary ward of

the court, continued in temporary custody of

his aunt, under supervision of the Family

Treatment Unit, and the case continued to

October 31, 1984, for further dispositional

testimony. An order to effect that was

entered on October 17, 1984.

On November 26, Referee McKnight

completed the dispositional hearing, and

recommended an order be entered placing Samier

in the home of his maternal grandmother, and

requiring the parents to participate in a

treatment plan specified as follows:

One, that the mother and father be

seen at the Clinic for Child Study and

followed through with its recommendations.

Two, that the mother and father be involved in

parenting classes. Three, that the mother and

father, if required, be involved in counseling

with Miss Ellen Rumman at the International

Institute, or other appropriate agencies,

until terminated by the therapist. Four, that

the mother and father visit the child under

the supervision of the Family Treatment Unit,

with phased-in visitation to be allowed, if at

all, only after clinic evaluation. An order

to that effect was entered December 18, 1984,

and the case was continued to May 1, 1984, for

statutory rehearing.

On October 18, 1985, the first

statutory rehearing was completed by Referee

Chester Drake, who had replaced Referee

cia aieenshiedinataeascaaann ea i

McKnight. And he found that it would be

contrary to the child's welfare to be returned

to this parents, and recommended the child

continue as a temporary ward, placed with the

maternal grandmother under the supervision of

the Family Treatment Unit, and the case

continued to the next statutory review on

March 11, 1986. Referee Drake further

recommended visitation be extended to seven

days a week until the next stat, under

supervision, two days a week individual

therapy and family counseling. And an order

to that effect was entered on October 25,

1985.

On November 22, 1985, an order to

take into custody was issued for Mohammed

Amer, born December 11, 1982, and Suehier

Amer, born November 18, 1983, the twin of

Samier. On November 25, 1985, a preliminary

hearing was begun by Referee Weberman and

continued to December 2, 1985. And on

December 2, a petition was authorized as to

Mohammed and Suehier, and pretrial was set for

———

December, 13, 1985, before Referee Drake, and

the children were ordered placed in emergency

shelter care under supervision, with

visitation only under the Department of Social

Services supervision.

On December 5, 1985, a petition was

filed that alleged that the home environment

was not fit for the children Mohammed and

Suehier Amer, because on November 21, 1984,

their sibling, Samier, a two-year old, was

brought to the hospital with no vital signs.

His extremities were rigid. He had green

stool. And his hair and body and diaper were

dry. The child was diagnosed as clinically

brain dead and put on a resuscitator. The

mother stated she had all three children in

the bathtub and was running water for them

when she heard the phone ring. She went to

answer it and heard a thump. She found Samier

on his back in the water up to his ears.

There was a bruise on the child's cheek.

In March of 1984, Samier was made a

temporary ward of the court due to abuse, and

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had been returned home on October 18, 1985.

On December 13, 1985, Referee Drake

disqualified himself because of his prior

involvement in returning the children to the

parents. And so the matter was then on

December 17, 1985, assigned to Mary Ann Quinn,

as Referee Drake's alternate.

And then on December 17, 1986, a

judge demand was made by attorney for the

respondents, and the matter was assigned to

Judge Martin T. Maher.

On March 26, 1986, a petition to

amend the petition was filed by the children's

attorney, Mr. William Ladd, to add the

follcwing: That Samier Died on November 232,

1985, at Children's Hospital. An autopsy

concluded that cause of death was a homicide.

That mother was arrested and charged with

second degree murder and bound over to the

Circuit Court. That Samier had been a

temporary ward of the court based on physicai

abuse. That the parents previously reported

to the medical personnel that the child Samier

had problems feeding. That they on occasion

had to force feed him, and that he was a

difficult child who was different from his

siblings. That throughout the family

involvement with the court the parents had

insisted that their problems with Samier were

peculiar to that child. That, however, the

oldest child, Mohammed Ali Amer, had been

admitted to the Botsford Hospital in August

1983 for gastroenteritis. During that time

the child was in the hospital the parents

attempted to force feed the child, despite

instructions from medical staff that this was

not good for the child. The parents also said

that Mohammed was a bad baby due to his

infancy. The child Suehier was eventually

examined at Children's Hospital. X-ray

indicated evidence of old trauma to the

child's left tibia.

On May 12, 1986, a preliminary

hearing was held before Judge Maher, and at

that time he entered an order setting the case

for trial on June 26, 1986, requiring the

parents to reimburse the county in the sum of

$450 for at.rrneys, at $25 a week, and pay $96

a week to the State for the children's

maintenance. Further, the children are to be

transported to the hospital for examination by

Dr. Magagorski, and report to be provided to

the court. Cost for report and examination to

be paid by the parents. All visits of parent

and children to be in the a.m., and the

department to maintain religious continuity,

i.e., mosque services and diad. That order

was entered May 16, 1986.

On June 13, 1986, a petition for

Clarification and enforcement of the court's

order of May 12 was filed by Attorney Harold

R. Goldberg in behalf of the respondents,

regarding failure of the Department to allow

children to attend religious services at the

Mosque of the parents and placed in an Islamic

foster home, if one could be found that's

appropriate. On June 17, 1986, Judge Maher

held a hearing on the motion and denied the

motion, and continued the matter then for

trial to September 10, 1986.

the matter was ultimately heard in

terms of adjudication by Judge Maher on

October 28, 1986, where he found that the

allegations contained in the petition had been

substantiated, and ordered that the children

be placed in the temporary custody of the

court and the case continued to December 15,

1986, for disposition. The children were to

continue in the foster care under’. the

Department of Social Services supervision, and

the parents referred to the clinic. An order

to that effect was entered on October 31,

1986.

On December 2, 1986, a motion to

replace the attorney for minor children, and

a motion for dismissal, and a motion for

evaluation of the natural parents was filed by

Attorney Lawrence Strauss for the parents.

The motion to dismiss was based on the fact

that the parents were found not guilty in

Circuit Court. That the parents have followed

the recommendation of the Department of Social

Services. And that numerous’ complaints

regarding standard of care by the foster

parent, which have not been = addressed

appropriately by the Department. And on

December 3, 1986, Attorney Strauss withdrew

the motion.

On December 10, 1986, an order was

entered placing Baby Girl Amer, born December

9, 1986, in foster care of emergency shelter

care. In transferring the jurisdiction from

Oakland County to Wayne County, the child at

that point having been born in the hospital

that was located in Oakland County.

On December 12, 1986, a preliminary

hearing was held by Referee Francis Pitts, who

authorized the petition and continued

detention and set the matter for pretrial on

Judge Maher's docket for December 15, along

with the other matter that was already

scheduled for that day.

And on December 15, a petition in

behalf of Zinabe Amer alleged a previous

history relative to the other siblings was

filed. And a hearing relative to disposition

was completed on that, however, and order was

not entered on that day.

On February 11, 1987, a petition to

move the matter to the docket of the presiding

judge of the Juvenile Division was filed by

the prosecuting attorney, at that point Judge

Maher having been transferred to the Estates

Division of the Court.

And then on February 26, 1987, a

motion to suspend visitation was filed by the

children's attorney.

Ultimately on March 5, 1987, a

motion was entered by Judge Maher relative to

the hearing on December 15, making, Zinabe,

who was then a ward of the court in their

current placement, which at that point was

foster home. Judge Maher further ordered that

the parents are to attend counseling and

parenting classes. Parents are to give a list

of relatives and/or Arabic homes for

investigation for juveniles placement. That

DSS and foster homes are to use the children's

Arabic names. That the family was to receive

family therapy, with Mohammed Ali receiving

individual therapy. And the matter was then

continued for statutory review on March 10,

1987.

On March 5, 1987, the motion to

remove the guardian ad litem was filed by

respondents' attorney. March 6, 1987, all the

motions that -- on March 6, all the motions

that had been -- on March 6, 1987, a motion to

reunite minor children with their parents

forthwith and in concurrence with the petition

to move the matter to the docket to the

presiding judge of the juvenile division was

filed by respondents’ attorney. On March 10,

1987, an order was entered by Judge Barsamian

granting the motion to transfer the case to

the docket, and a hearing on the moticn to

suspend visitation of the parents, said

guidelines between petitioner and DSS, reunite

the children with their parents and remove

guardian ad litem.

On May 7, 1987, an order was entered

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denying the removal of the guardian ad litem,

removing the guardian ad litem and continuing

the case for further testimony.

On May 29, 1987, statutory rehearing

was completed. And the court found that

return of the children to the home of the

parents would be contrary to their welfare,

and ordered that they remain temporary wards

of the court, which was again continued for

review. At that time the court also ordered

that the parents are to participate in

therapy, their therapist selected by DSS of

Wayne County or the Clinic for Child Study, to

deal with and accept responsibility for the

non-accidental death of Samier. That parents

are to participate in Parents Anonymous. That

parents are to meet regularly with Ms. Fine,

who is to coordinate and monitor all treatment

efforts both as to the parents and the

children. That Mohammed is to. continue

individual therapy. And that the children are

not to be placed with relatives. And that the

mother's visits with Mohammed are terminated

until further order of the court.

On June 5, 1987, a motion to

reconsider order relative to visitation of the

minor child by the natural mother was filed on

June 25, 1987. The court entered an order

denying the motion to reconsider.

On December 16, 1987, a petition for

rehearing was filed requesting permanent

custody, and alleged the parents are unable to

provide a home fit for the children by reason

of neglect, and that the children would be

neglected over the long term future, alleged

the abuse and neglect of Samier. That

Mohammed Ali, Suehier and Zinabe were made

temporary wards of the court as a result of

Samier's death, and placed in foster care,

where they remain under DSS supervision. That

although parents have consistently involved in

therapy in order to accept the responsibility

of neglect and abuse and failure to protect

that led to Samier's death, they refuse to

acknowledge who was responsible for the non-

accidental death of Samier.

Then on December 23, 1987, a

petition to have parents and minor children

examined by independent mental health

professionals was filed by Mr. Baum. And on

January 8, 1988, a discovery motion was filed

by Mr. Baum in behalf of the parents. On

January 12, 1988, a hearing was held relative

to the motion to have the parents and minors

examined by independent health professionals,

and a supplemental order of discovery -- that

a supplemental order of discovery was entered.

On January 14, 1988, the court entered an

order denying having met mental independent

health examination. On January 22, 1988, the

statutory review was continued on February 19,

1988 for pretrial on the permanent custody

petition.

On January 19, at the hearing

relative to the pretrial on the permanent

custody petition, the matter was set for

hearing on May 13, 1988, along with the

statutory review. And so we became then a

two-track hearing, one dealing with statutory

review and the other one dealing with

permanent custody.

It was at that time that the court

ordered that Mrs. Nancy Gray was not to have

any further therapy or counseling reiationship

with the parents, and nor was she to accompany

them to their therapy sessions or to the

Clinic for Child Study.

On May 2, 1988, Attorney Baum filed

a petition asking for clarification and

modification of order of the May 29, 1987.

And subsequently a hearing was held wherein

the court there specifically indicated to Mr.

Baum, as well as to the parents, that the

court meant exactly what it said, and further,

tried to make as clear as possible what it

meant by that order. And since that time

there has been numerous hearings dealing with

the termination of the parental rights.

When children are found to come

within the provisions of the Juvenile Code, as

you allée know, those of you who- are

professionals in the court system, the court

has a number of options that it can consider

in terms of dealing with the problen.

When Samier first came to the

attention of the court, it was felt that

because of the nature of the injuries and the

severity that the child could not be allowed

to remain in the custody of the parents, and

therefore the court sought relatives, which is

appropriate, rather than putting them with

strangers. And was able then to find a couple

of relatives who were willing to become

involved and provide a home environment for

this child, pending efforts by the Department

to rehabilitate the parents.

It's very significant to the court

that when the Department, then pursuant to the

action of the court, developed a treatment

plan, as Mr. Baum has indicated, which is goal

oriented, identified specifically the goals

that are to be achieved by the parents. The

parents were extremely cooperative. The

worked real hard. They were anxious. They

were motivated. They were interested,

everything that we would hope to see in

parents involved in these kinds of cases. The

only thing they were not able to do, or

refused to do, was to tell the court or any

others that they dealt with as to how the

injuries occurred to this child.

We're talking about a four-month old

who could not have inflicted those injuries

upon himself. And as hard as_ the

professionals worked with these parents to get

them to acknowledge how these injuries

occurred, they failed in that respect. And

but what happened here was that the

professionals were so impressed with the

efforts by the parents that, I guess, they

agreed or decided that there had _ been

experiential acceptance of responsibility

without verbalization, as Mr. Baum has talked

about on so many occasions in this case.

And I think that in his remarks and

in his report, Dr. Schornstein indicated that

while these people have not acknowledged the

‘

injuries, that they have done everything

that's been asked of them, and that as long as

they continue to participate and be involved

in that, it would be safe to liberalize their

access to this child. And so based on that,

the parents were given liberal access to this

child, and within a month the child was dead.

The medical examiner's report, which was dated

November 27, 1985, said that Samier died of

blunt forced injury to the head, causing

stelit(??) fracture of the skull over the back

of the head, bleeding in the head, and

contusions of the brain. That there was one

impact to the back of the head, the pattern,

the extent of the injuries indicated that the

head was moving at a great velocity and struck

a fixed object, and the manner of death was

Classified as homicide.

Judge Maher, after listening to

extensive testimony, came to the conclusion

that Samier Amer was killed. That he did not

fall in a bathtub, as had been stated by the

parents. That this child could not have done

this to himself. That it would have required

Sil (iat i ii

an adult to administer the injury that caused

death.

Now in that house that night were

only two adults, the father and the mother.

And based on the testimony presented to Judge

Maher, it is clear to me, in reviewing his

transcript, that what Judge Maher found on

that occasion that one of these parents killed

their child intentionally, and the other one

is protecting that parent. Because of that

kind of a finding then, when the court

intervened relative to the other children, the

court cannot just ignore that which has

transpired in the past. Perhaps if.the case

had initially came to the court as the death,

the killing, that might have been more

plausible or, you know, we all want to believe

that parents can't do these things to their

children. But in this case you had a severe

injury, unexplained, cannot be caused by the

child, and then the death. That could not

have been inflicted by the chiid or the other

children in the family,.

So Judge Maher, in the course of his

disposition, set forth the guidelines that the

court has read in terms of trying to achieve

return of these children to the parent or

parents. And what he basically did at that

point was turn it over to the Department of

Social Services and say here is what I want to

see happen, and expecting the Department then

to follow through on seeing that the treatment

plan, again, which is goal-oriented, was

followed.

And again, it seems that the parents

have done everything we've asked them to do.

And they've gone to Parents Anonymous. They

have done qveugthing, but one thing they have

not done is that one goal set forth in Exhibit

5 relating to the acknowledgement of the

killing of their child by one of then.

Now, in reviewing the testimony

presented by the various professionals, and

we've had many, all with a lot of experience,

all well-intended. And I guess initially I

was disappointed that the therapist that we

inner vs isaeoimn

ee eee

referred the Amers to wouldn't deal with the

issue that they had been referred there to

deal with, but instead, other issues were

dealt with.

The depression, Mr. Baver talked

about dealing with depression. Dr. Epstein

talked about dealing with the stress, the

grief problems of separation from other

children, problems dealing with child care

workers. They dealt with a lot of problems,

but none of them related to the problem the

court had sent the family there. And as I

said, I kind of was disappointed in the

therapy in not being willing to force the

parents to deal with that particular problen,

and where instead dealing with the multitude

of other problems that obviously were

beneficial to the parents. I don't doubt

that. And perhaps in those respects they have

changed. But I guess in reviewing my notes in

preparation for this hearing and meshing the

various professional's testimony together, it

appears that none of the professionals expect

to be told what to deai with. That the

clients who go there come with whatever they

think they need to deal with, and that it is

not their job, as I think one of them said, to

be detectives or to pull from these people

admissions of guilt or whatever.

But it is interesting to the court,

as the court has pointed out at times, even

though they were told -- I don't think I could

have been anymore clearer to these parents.

And by the way, language is not an issue here.

I reviewed this file carefully. These people

have been here a long time. They have

assimilated to our society in many respects,

and one way they have assimilated is through

language. They can speak very well. And the

court is very well impressed with their

ability to communicate. So it's not a matter

of them not understanding what I was telling

them. I think I told them loud and clear what

I wanted them to deal with, and yet they

refused to deal with it.

Now, Mr. Baum, you asked me to

~~ iti hin i i eS ie

consider that they have experientially

accepted responsibility about their actions,

and that they do not need to verbalize that in

order to benefit. I guess that was the theory

under which the court operated the last time

they gave Samier back to the parents. And in

fact, Dr. Schornstein in his’ testimony

indicated that that's what he had done. He

felt that experientially the parents had

accepted responsibility, and therefore, it was

safe to return this child to the parents. And

obviously that was not a correct assumption.

And to expect the court at this time to accept

that, in light of the history of this case, I

think would not be appropriate.

I think that Mr. Derr, when he

testified, indicated that there are indeed

components here that can be dealt with by the

parents. And maybe in dealing with the

components, that you can deal with the problem

at hand. However, he further said is that we

don't know why this child died and how this

child died, except for the general information

provided by the coroner based on his

examination. And until we know and how this

child died, we cannot know if the components

that these parents are dealing with are indeed

the components that are going to be safe to

allow the safe return of these children.

Now, there has been a lot of

discussion about the failure of the Department

and the failure of the agency to provide a

treatment effort to provide the sort of benign

environment in which these parents can

operate, and there being pointing out of

numerous problems with the foster parents with

Mohammed Ali, what he saw, what he didn't see.

There's all kinds of issues that have been out

there. And there are issues that are very --

cause a lot of concern for the court. And as

Mr. Ladd said, if you deal with those specific

individual issues, I think what can happen is

you can get side tracked, because the bottom

line here is that Samier Amer at four months

sustained five fractures and bites on his

body, and was a failure to thrive child. And

the parents were worked with, and the child

returned, and within a month the child was

dead.

One of the professionals -- and I

forget which one -- indicated the best way to

be able to predict the future is to look at

the pattern of that set behavior. And

there's nothing that I have seen here that

would convince me that this would not recur.

Basically nothing has changed. We continue to

deny. Dr. Fischoff, who I think all of us are

familiar with, indicated in his testimony that

with five fractures and death, the children

are at high risk. And if high risk, permanent

custody and adoption is the preference.

I think I've tried. I think the

Department has tried. But somehow -- and I

think that others have tried, now, beginning

with Ms. Rumman, Mrs. Gray, on through each in

their own way have tried to assist these

parents, and each has been unsuccessful in

getting them to accomplish that one final goal

that needs to be achieved.

I guess what happened here is what

happens in many of our cases. Parents

participate, they cooperate, they do whatever

the court wants them to do, but they fail to

internalize. They're unable to take what's

been said to them and benefit by it. And I

think that's what's happened here.

Now, as the court has indicated, we

don't know who killed this child. We know

that somebody killed this child. So while one

parent is not as culpable as the other, but

the other one, who is culpable, continues to

support the one who is, and therefore, is not

able to provide a safe environment for this

child. And in fact, when the child Samier was

returned after the first incident, was not

able to protect that. child. So that

ultimately the child was killed.

So it's the court's belief that

there cannot be return of these children to

these parents short of verbalization of guilt,

and that the experiential acceptance of

responsibility has failed in the past, and

there is no reason to believe it's going to

work in the future. And if we test that at

this point, what we're doing is, we're testing

at the risk of the life of Mohammed, Suehier,

and Zinabe. And I think that's an

inappropriate request on the part of this

court as to those chiidren.

So the matter comes before the court

based on the unfitness of the parents, and it

would appear based on our experience with them

relative to the child Samier that they are

unfit, and that after three and a half years

of efforts by the court and by the Department,

we have gained very little, and that they

continue to be unfit, and that it is not very

likely that things are going to change in the

future. There's been absolutely no indication

that if the court were to continue this matter

into the future that they would change.

As you know, the first prong of this

process is to determine the fitness of the

parents. And the court would find that there

is clear and convincing evidence’ that

paragraph (e) and (f) of MCLA 712.19(a) have

been established. Then the court considers

the best interest of the children in this

case. And that was why I wanted the children

referred to Children's Hospital, or the issue

referred to the Children's Hospital, because

I have a set of parents who are unfit, but if

I were to terminate the rights of the parents

would it cause great harm to the children.

And if that were the case, then merely because

the parents are unfit would require me to

terminate their rights, but if I felt that it

would harm the children, then I'd be willing

at that point to continue to work with the

parents, becavse at that point the children

come first, and they come first in reality all

along here. But if I felt that it were going

to be tremendous harm to these children by

terminating the rights of unfit parents, I

wouldn't terminate.

But I am satisfied, after listening

to Dr. Fischoff and others, and the therapist,

Ms. Noel, for the child, that we're going to

Senha, Winn Patt Ma

have children who will have problems and will

have far greater problems unless we do

something to -- you know, unless we act

quickly. We've already delayed substantially.

That it would not be to the benefit of these

children to linger in foster care.

I think the child who is most

severely impacted at this point is Mohammed

Ali. And efforts are being made to deal with

him. And he seems to be making improvement,

but he cannot make enough improvement unless

there is support and consistency and no

further conflict.

It woulda appear to the court that

these children are entitled to a nurturing and

caring and safe environment. That they are

entitled not to linger in foster care. And

they are entitled to permanency. Therefore,

the court would find that their best interest

require that there be some finalization here,

and that termination of parental rights are in

their best interest; therefore, the court will

enter an order terminating the parental rights

of the parents to these children, and will

commit ehen to the Michigan Children's

Ins* tute for appropriate adoption planning,

ana ill advise the parents of their right to

appeal the decision of this court to a higher

court within 21 days. If they cannot afford

counsel, counsel will be provided for them, as

well as transcripts.

(Whereupon the above-entitled matter

was concluded.)

21d nee

Code, respondent (s)

APPENDIX C

I t hie as 2 = VS &

of: Born

Mohammed Ali Amer December 11, i982

Suehier Ahmed Amer November 11, 1983

Zinabe Ahmed Amer _ December 9, 1986

At a hearing held on __January 9, £419.89 ;

and due notice of the hearing of the matter

having been given as directed by the Juvenile

_ did appear on the said date in Court.

THE COURT FINDS THAT BY CLEAR AND CONVINCING

/ EVIDENCE THAT:

The allegations made in the

(Petition for Rehearing) filed on

December 16, 1987 pursuant to

M.C.L. 712A. 19 a have been

substantiated pursuant to

subsections (e) and (f)

2. The placement of the child{ren) in

the home is contrary to (their)

welfare, and

3. Reasonable efforts have been made to

prevent or eliminate the need for

removal of the child(ren) from home;

and these efforts have not been

successful, and

4. Reasonable efforts have been made to

reunite the family: and _ these

efforts have not been successful.

5. The child(ren) will be neglected for

the long term future.

THEREFORE, IT IS ORDERED THAT said child(ren)

be, and (are) placed in the permanent custody

of the Court; and all parental rights of

__Rehab Amer and Ahmed Amer

are terminated and the child(ren) (are)

nk Veith ie

en SO A te ET lh a A lh ll

committed to the Michigan State Department of

Social Services for admission to the Michigan

Children's Institute. The Superintendent of

Michigan Children's Institute is hereby named

special guardian to receive benefits due the

child(ren) from the government of the United

States.

Y. GLADYS BARSAMIAN

DATE: January 9, 1989

JUDGE OF PROBATE

JUVENILE DIVISION

APPENDIX D

Detroit, Michigan

Monday, February 6, 1989

Commencing at about 9:00 A.M.

THE COURT: This is in the matter of

Mohammed Ali, Suehier and Zinabe Amer,

Juvenile Court case number 84-241,317.

The matter before the court this

morning is a Motion for Stay of Proceedings.

Counsel, would you identify

yourselves for the record.

MR. GRODMAN: Howard Grodman,

Assistant Attorney General, representing the

Department of Social Services. And with me is

Kim Sanford from the Department of Social

Services.

MR. LADD: Bill Ladd from the

Juvenile Defender Office on behalf of the

children.

MR SCHWARTZ: Good morning, Your

Honor. Jeffrey Schwartz on behalf of the

parents, who are present in court.

THE COURT: Counsel, would you waive

the reading of the petition?

MR. SCHWARTZ: Yes.

Your Honor, on behalf of the parents

I have brought a Motion for Stay of

Proceedings for two reasons, although one may

be moot due to a change in the court rules.

However, the last stay that I filed concerning

a permanent custody matter was not an

automatic stay of the proceedings. And I

understand that might be the case now. Either

way, I filed the motion to preserve the

record.

Your Honor, I'd like to indicate to

the court that we're asking for a stay if

proceedings for two reasons: Number one, so

that any adoption proceedings would be stayed

pending any decision by the Court of Appeals.

Number two, we would like to ask the

court to reinstate the status quo concerning

visitation pending the appeal for the reason,

with all due respect to the court, not all

lower court decisions are in fact affirmed.

That in the event the Court of Appeals feels

it necessary to reverse for any reason or to

remand for any reason, any block of the

visitation of any gap in the visitation would

be detrimental to the parents as well as the

children. If they are in fact going to be in

a position to have the children eventually

returned, I think it would be to the benefit

of both the children and the parents not to

have a gap in the visitation.

I anticipate and have been told that

there would be an objection to the stay. I am

not sure what the objections are, so I would

ask the court to allow me a short rebuttal to

any arguments given in opposition.

THE COURT: Why don't we have the

attorney general go next. Or would you prefer

MR. GRODMAN: Either way, Your

Honor.

Your Honor, on behalf of the

aA ah napa © ene Caled

Department, we strongly oppose the motion

regarding reinstating visitation. Of course,

it's our understanding of the law that no

adoption order can be finalized pending the

appeal process. And we don't intend to

commence those proceedings before the court

until the appeal is resolved.

But regarding visitation, the

Department of Social Services has opposed

visitation since May of 1987. And their

opposition to the visitation between these

parents and these children is implicit in

their filing of a permanent custody petition.

If they felt it was in the best interest of

the children to visit their parents, they

would not have filed such a petition.

And we also believe that it is

implicit in the court's findings’ that

permanent custody be taken of these children,

that visitation is not in their best interest.

In order to make the findings that the court

did, Your Honor had to find that the children

came within Section 19a. of the Juvenile Code,

which it did. And then following that the

court had to make a determination as to

whether or not taking permanent custody would

be in the children's best interest. And by

the fact that the court took permanent

custody, the court felt that was in the

children's best interest.

Basically the Department opposes the

visitations for two practical reasons: One of

them is a matter of security. And I would ask

that somehow the fact that there was a

demonstration that took place after the court

rendered its decision be placed on the record

either by Your Honor, or I'd be happy to call

Mr. Douglas to put that on the record, the

reason being is that I expect when this case

goes to the Court of Appeals that this issue

of visitation pending the appeal is going to

go to the Court of Appeals. And I think that

the Court of Appeals ought to know that

security is a real issue in this case, and --

MR. SCHWARTZ: I'd object to the

term "demonstration." I am not sure exactly

what that means, number one. And number two,

being displeased with the outcome and showing

emotion has nothing to do with or should have

nothing to do with any concerns of any

security. I don't think that that's a matter

of any record. That's something that is being

given as opinion by counsel. That hasn't

been, number one, substantiated. And even if

it is substantiated, it isn't necessarily

relevant to these proceedings, and I would

object to that characterization.

I think the court has to make its

determination based oon. the facts and

circumstances as the court knows it and based

on the record.

And I would save any other rebuttal

for the appropriate time. I apologize to

counsel for rising at this point, but I do

think that particular comment oor that

particular shred of fact would be

inappropriate for this hearing, and felt

obligated to rise for that reason.

THE COURT: You want to respond?

MR. GRODMAN: I'd just like to

acknowledge that I was not present at the

hearing. I was in the hall, however, and I

noticed that at least a dozen deputies were

here to take care of a situation that took

place. It took over a half hour, in ny

opinion, in the hallway to settle down the

situation before the court could resume

business. I admit that it's not a matter of

record, and I'd be happy to call somebody to

testify who was present, and I think Mr.

Douglas would be an appropriate individual for

that.

MR. SCHWARTZ: Except for the fact

that counsel just admitted to now that he

wasn't here, had no idea what it was about,

and just raises that as a red herring to

inflame the court, and I don't think it's

appropriate.

THE COURT: Well, I think security

is an issue in terms of being able to retain

custody of these children. I think that

A> elt mee a til St

counsel is being honest in indicating that he

wasn't here. He was able to observe what took

place in the hallway, however. And I think

he's trying to be very cautious in how he

frames his argument. But I do think it's an

issue that needs to be dealt with. And I

think we need to move on, however.

MR. GRODMAN: Thank you, Your Honor.

Our other major reason for opposing

visitation -- of the Department's, that is --

is that we believe that there has been ample

testimony that contact between the parents and

the children are detrimental to the children.

In particular, I would note that

Karen Noel, Mohammed Ali's therapist, and Dr.

Schornstein from the clinic, the psychiatrist

from the clinic, testified at trial. My

understanding is that their testimony

addressed those matters. And I am also aware

that there vere other testimony at previous

statutory hearings in which it was testified

to that visitation between the parents and the

children are detrimental to the children.

For those reasons, I would ask that

the court deny the motion insofar as it

requests visitation be reinstated.

Thank you.

MR. LADD: As to the efficacy of Mr.

Schwartz' motion, I should note that Mr.

Grodman is correct as to the fact that no

adoption can be entered by this court until

there is a final decision by the Court of

Appeals affirming the order’ terminating

parental rights.

And I draw the court's attention to

MCLA 710.41 sub (2) sub (c). However, the

court does have the power to enter any other

order dealing with placement of the children

pending a final decision by the Court of

Appeals. A stay of proceedings here in that

case would be of little significance, because

the final decision of an adoption would wait

the decision of the Court of Appeals.

Second of all is the issue of

whether or not visitation is in the best

interest of the children. I think Mr. Grodman

is correct as to the effect of the court's

decision, that the court has found that

continued contact between the children and the

parents is not appropriate. Mr. Schwartz has

offered nothing to rebut the findings of the

court, nor has he offered any new evidence

that would lead this court to believe that it

would be appropriate at this time to continue

further visitation.

And I think it is appropriate and

important that the court consider the question

of the safety and the wellbeing of children

when making decision on continued visitation,

first of all, because the court dealt to a

great extent in this case with the issues of

a need for permanency planning, a question of

whether the children would be in a situation

where they are confused about their situation

and the effect of contacts that they had with

their parents' contacts. And what Mr.

Schwartz is asking is that be allowed to be

continued. And the evidence here was that was

not beneficial to these children.

Beyond that, there is this real

security question in this case, and as to the

protection of the children, the protection of

all of the other parties involved. I was

present at that hearing. I was personally

threatened by one of the spectators here. And

it's difficult for me to believe that under

those circumstances that these children could

be safe at any kind of visitation.

There's been a history here of

questions of the appropriateness when the

parents visited, where the parents visited.

There was a situation where the parents and

ene of the foster parents arranged a

visitation outside the supervision of the

agencies involved here.

And again, there's no evidence and

there is nothing to support a finding by this

court that there is anything new that this

kind of pattern of behavior by the parents

would be changed. And in fact there would be

no -- After this court's termination there

would be no reason why the parents would abide

effectively by this court's order when they

had not in the past. and because it's not in

the best interest of the children, because

there is no assurance that the children and

even the workers can be protected under the

circumstances here, and where there's no

evidence that -- and no new evidence to

support a finding by this court today that

it's more appropriate to allow visits than it

was three weeks ago, I would ask the court to

deny any visitation with the children.

As to the general question of the

stay of the adoption proceeding, I would

merely ask the court to state that it's bound

by MCLA 710.41 as to proceeding on final

adoption, which the court cannot do until the

Court of Appeals decides.

MR. SCHWARTZ: Your Honor, in

response. First of all, no evidence or no

requirement to show anything to rebut the

proceeding is’ needed. The court has

jurisdiction under MCR 7.208 Paragraph (E) and

MCR 7.209 Paragraph (1) to stay the

proceedings and to retain jurisdiction and to

stay those orders.

The whole point of the matter is --

and counsel admittedly -- and I am somewhat

of a disadvantage because I did not try the

case. However, this case is quite a notorious

case, one that I have been following and have

heard about and am aware of some of the

proceedings.

I would indicate to the court that

there was evidence -- At least it's my

understanding that there was evidence to the

contrary. That the children would be safe

during visitation and that it was in their

interest. With all due respect to the court,

the court decided to rule in one manner in one

respect. But the point is there is evidence

on the record that has to be weighed now by

the Court of Appeals in terms of whether or

not the children would be safe and whether or

not any dangers exist concerning any

visitation or in fact return of the children.

They try and make it sound like there was no

evidence whatsoever indicating contrary to the

couple of people that testified thet it wasn't

in the best interest of the children.

In terms of security, unfortunately

I think that this case is one that emotions

become high in, and I don't think it's unusual

before this court of any court in Juvenile

Court to have people who are emotionally upset

about a decision. However, my understanding

of this, quote, unquote, "demonstration" was

that one of the parties involved became

sumehaathe ill because of the _ emotional

outcome, and some of the people were upset.

But that doesn't mean to say that these

children were going to be snatched or

anybody's life were going to be in danger or

anything to that effect.

There was visitation throughout most

of this case. There was no indication or no

scintilla of any evidenced that these children

were in any danger, that they were in any

danger of being kidnapped or any other result

that they may want you to believe. There's

nothing to support that.

Unfortunately there's been a ton of

friction of not only between the workers and

my Clients, but between Mr. Ladd personally in

this case. And I would hope that all parties

concerned don't let their personal feelings

towards each other get in the way of

professionalism or the way they do a job.

It's my opinion, based on what I

know about this case, that the Department and

Mr. Ladd representing the children had no

intention ever of letting these children come

back, no matter what the circumstances were.

And that may be one of the basis for the

appeal.

‘Again, I haven't had an opportunity

to read the transcripts and to see what the

situation is. And I am trying my best to keep

this on a non-personal level, hoping that the

other parties would as well.

That point is that should the Court

of Appeals be persuaded that this case should

be either re-adjudicated or that the process

should continue in efforts to return these

children at some point to their parents, it

would be detrimental -- And I don't see how

they can say that it would not be detrimental

to the children to have a total break off in

relationships with their parents on the

possibility -- and there's always a

possibility that the Court of Appeals will ask

that this case should be reviewed or sent back

for some reason.

I don't see the danger in allowing

the visitation that was allowed all the way up

until the point that the order was entered

terminating their rights. I think that during

that time -- And this is a custody case, so

that I would hope, and usually it's the

procedure, that the Court of Appeals tries to

come down with an opinion in this case in a

quick enough manner that any detriment to

putting this off any further would be

minimized. That I don't see the danger in

allowing the visitation as it was at least

before, pending the Court of Appeals decision.

I think that what we have here is

emotional arguments being brought before the

court as opposed to just a hard fact

situation. There's no indication -- The

parents live here. The father is employed.

Their parents are here. There's no reason

that they would leave. There's no reason for

them to try and endanger these children to

make this worse. Hoping that if the case does

come back that they can move toward resolving

this and getting their family back together.

And I would ask the court to

consider it. It's not an unusual motion.

It's not one that is asking for something

that's never been done. And I would ask the

court to consider reinstating the status quo

as it was pending the decision of the appeal.

THE COURT: Without going into

specifics of the case, the court will find

that it is bound by MCLA 710.41 in terms of

any imminent adoption proceeding, so that the

parents can know that there will be no final

adoption in this case until they have

exhausted their remedies.

In terms of visitation, this is

another matter. When the Department files a

petition for permanent custody, at that time

all visitation rights are ceased, because it

is often believed that everything that has

been done to achieve return of the children to

the parents have been exhausted. That I am

approaching it from the Department's point of

view. And at that point they're asking for

termination, and that it would not be then to

the children's benefit to continue to try to

reunite the family. And in some instances it

is to the detriment of the children.

It was very unusual in this case

that the court allowed the visitation to

continue. And in reflecting on the case, I

guess I allowed it to continue for two

reasons: First of all, I was hoping very,

very much that the parents would get the

message of what was expected of them and would

comply and we would be successful in achieving

reunification of this family.

Secondly, I did not ever anticipate

that this case would take as long as it did to

conclude. It took over, I think, a year to

get all the testimony that was necessary to be

able to come to some decision here. And

frankly, that caused the court a lot of

concern.

As has been indicated, this was a

two-prong approach: One relates to the

fitness of the parents, and the other relates

to the best interest of the children. And

when I got to the point of determining the

parents were unfit, I guess I had a whole lot

more trouble deciding whether after having

allowed these children to maintain contact

with their parents, what was I going to do to

the children. Even though their parents were

unfit, was I going to harm them more by-

terminating the rights of unfit parents or

freeing them for permanency.

And I guess in analyzing’ the

testimony that was presented, I ultimately

came to the conclusion that while it might be

69 o

CE LA

Poe A

painful to the children to terminate that

relationship initially, that it was. far

greater for the long run for their benefit,

and that it was indeed to their best interest

that the rights of their parents can be

terminated so they can proceed to a permanent

situation.

I think at this point to reconnect

for any length of time in the future would be

to their detriment, because it would just

maintain that connection that the court feels

is not an appropriate one.

I do believe that there is some

security issues here. I don't believe these

parents are going to necessarily snatch these

kids and run out of state with them. But I do

think in terms of visitation there's a lot of

water that's gone under the bridge here. And

I think that there has been some -- I would

have some concern for the people, the

Department, et cetera; therefore the court

will deny your’ request for stay of

proceedings.

MR. SCHWARTZ: Your Honor, I thank

the court for its consideration.

Just for the purposes -- And I hate

to belabor the court. But just for purposes

of the record for the review, I would ask the

court to indicate what the final -- the last

statement the court indicated, which is in

terms of the concerns of the security, I would

ask the court to at least delineate for the

record what the court is basing those concerns

on.

THE COURT: The court is basing

those concerns on the fact of what occurred

here on the last day. And that there was

quite a -- The parents showed up with a

substantial number of individuals from the

community. And there were threats that were

made to various individuals. The fact that

when the matter was pending the parents did

take advantage and made arrangements with the

foster mother to meet without permission or

knowledge of the Department. And I think once

you begin visitation it's a lot easier for the

parents to trace where children are. And I

have a concern now that the parents realize

what is happening here that they would be even

more inclined then to do something that might

be to their detriment as well as to the

Getriment of the children involved.

MR. SCHWARTZ: Thank you, Your

Honor.

(Whereupon the above-entitled matter

was concluded. )

APPENDIX E

STATE OF MICHIGAN

IN THE PROBATE COURT FOR THE COUNTY OF WAYNE

JUVENILE DIVISION

In The Matter of:

Juvenile Court No. 241,317

MOHAMMED ALI AMER,

SUEHIER A. AMER,

Minors

BEFORE THE HONORABLE

MARTIN T. MAHER, Judge

of Probate, Juvenile

Division, Detroit,

Michigan, December

15, 1986

APPEARANCES :

For the Department

of Social Services: MS. CAROLYN BREEN

Assistant

Prosecuting Attorney

For Respondent

Parents: MR. LAWRENCE STRAUSS

Attorney at Law

MR. JOSEPH LANGO

Attorney at Law

For Minors: MS. K. LONERGAN

Juvenile

Defenders Office

Detroit, Michigan 48207

Monday, December 15, 1986 - at about

2:35 P.M.

(Court, counsel and all parties

present)

THE COURT: Let the record reflect

this is Wayne County Probate Court, Juvenile

Division, case number 84-241,3i7.

Would the parties please identify

themselves?

MS. BREEN: Your Honor, Carolyn

Breen from the Wayne County Prosecutor's

Office.

MR. STRAUSS: May it please the

Court, Lawrence Strauss appearing for Mr. and

Mrs. Amer.

MR. LONGO: Joseph Lango.

MS. LAWSON: Patricia Lawson,

Department of Social Services, Protective

Services.

MS. LONGERGAN: Katherine Lonergan,

substituting today for Bill Ladd, representing

the children in this case.

THE COURT: Okay. The Court's had

an opportunity to talk to the attorneys in

chambers. Based on those conferences the

attorneys have stipulated to and I believe

they have talked to their clients.

What I'm going to do first of all is

take care of the petition number 86-106,345

regarding the matter of the baby girl Amer.

It's my understanding, Mr. Strauss,

that after talking with you and you talked to

your clients that they will stipulate to the

Court making this child a temporary court

ward; is that correct?

MR. STRAUSS: Yes, Your Honor. My

clients understand that's based upon the

considerations that in my opinion would be the

resuit if your Honor had to make a ruling.

That you do have jurisdiction over this child.

And, we're treating this matter as a family

consisting of three children. We would like

211 of the children returned to the parents as

soon as possible, ideally.

However, we would like the

Department to do whatever it could at this

point in time to provide the maximum amount of

visitation with the newborn child so that as

long as we're all entertaining the idea of

having this family reunited. We're concerned

about possible damage being done to the

newborn child by not being with its parents.

THE COURT: The Court will accept

that stipulation also based on case law of In

Re: La Flure and make -- What's the baby's

name?

MS. BREEN: Your Honor, at this

point we would ask the Court to amend the

petition. The child's name is Z-I-N-Z-N-E.D

THE COURT: Is that Z as in zebra?

MS. BREEN: Yes, your Honor. It's

Z as in zebra and then the B is B as in boy.

THE COURT: Is there a middle

initial?

MS. BREEN: It's A, according to the

parents.

THE COURT: The Court will change

the petition from Baby Girl Amer to Zinabe A.

Amer a temporary court ward.

The Court, after talking with the

attorneys -- Well, just a couple of things.

I'm going to give you a statutory rehearing

date. That statutory rehearing date is going

to be March 10, 1987, at 8:30 a.m. Normally,

we would set a statutory rehearing date of

sometime in July. But, I want to keep abreast

of this case, probably more so than my other

cases, to find out what's happening.

At a statutory rehearing what

happens is the Court gets reports. Those

workers, listen, because those reports are

going to be filed two working days prior to

the date of the hearing. And, normally, if I

don't receive those reports at that time I

assess those people responsible for filing

those either $200 or $100, depending on how

much attorney fees are involved.

oh ARO D senate act

The Court listens and looks to see

what the parents have done to have the child

er children reunited with then. That is,

after they have worked with the worker. In

this case, I would assume they're going to

have counseling, parenting classes and those

types of things. And, family therapy.

I'm also going to be looking at what

the workers have done to try and reunite the

family.

The Court's going to order that the

parents give a list of relatives for potential

placement. After the Department of Social

Services has had an opportunity to investigate

these relatives and are assured that they are

convinced that would be a proper placement, at

that time, talk with their attorney, Ms. Breen

and she wili contact the other attorneys for

the child and for the parents. I believe

there's going to be a stipulation at that time

to have those people investigated or report

from the psychiatrist.

The parents are also to provide

names and addresses of Lebanese, Arabic names

for foster care licensing potential and for

potential placement of the children.

The Court as well as the attorneys

for the child and the State are very concerned

with the young child; that there not be too

much psychological damage done. The reason

the Court is not returning to the parents at

this time is because the deceased child was an

abuse ward at a very young age with multiple

broken bones in various stages. So, the Court

is extremely concerned.

It's my ultimate objective to return

the children to the parents as quickly as

possible with the caveat that those children

remain safe.

The children will remain in Foster

Care. The family shall continue in family

therapy and that Mohammed Ali also be involved

in individual therapy.

Is there anything I forgot?

MS. BREEN: Your Honor, will reports

from the parents' therapists be made available

nent

to the Department of Social Services?

MR. LONGO: Certainly.

MS. BREEN: We would ask that be

part of the order.

THE COURT: They're the ones that

want the children back, so I'm going to be

looking at how much cooperation they're

giving.

MR. STRAUSS: We're going to give

you everything we can to try to convince you

and everyone concerned.

THE COURT: Mr. Strauss, is that

correct?

MR. STRAUSS: Yes, Your Honor.

Lastly, if it please the Court, if

the Court could give some consideration to

placing Suehier and Mohammed Ali -- or the

Department, to temporarily in a different

foster home. We are concerned since at least

at this point we all share the goal of

reuniting this family. The fact that this is

on information and believe that Mrs. Moore

does not use the children's given Arabic

- 80

names. And, there are other matters as well

where we feel that she is diametrically

opposed through her actions and omissions, no

matter how well-intentioned they might be,

towards the stated goal of the Court reuniting

this family.

THE COURT: Are the names Suehier

and Mohammed? And, you're saying that the

foster mother is not using those names?

MR. STRAUSS: Right. And, also I

understand that when the children were placed

in foster care they did not speak anything

other than Arabic. Now, they are coming back

allegedly saying things: "Mommy smacked baby"

and things like that in English, which we feel

they must be picking up from a source other

than the parents. And, other things like

that.

Now, Mohammed Ali, when there was at

least some bond between the Amers and their

son when they would visit, now Mr. Amer's son

is telling him, "You're not my father" and

things of this nature.

We feel that these things -- We

don't think they're coming from anyone in the

Department of Social Services. But, they must

be coming from that foster home.

THE COURT: That can be handled in

the therapy and the therapy that Mohammed Ali

is going into. |

MR. STRAUSS: We would like to have

you order Mrs. Moore to refrain from such

conduct, if in fact that is occurring. So

that assuming what I'm saying has merit, that

she does not create more problems in the

interim.

MS. BREEN: For the record, your

Honor, it has been the Department's case plan

for a number of months that the foster mother

does use the proper Arabic names. She is now

using the proper Arabic names for. the

children.

The children when they initially

came into care spoke no English. Over the

course of months they have been learning the

English language through the foster home.

The position of the Department is

that the foster mother is not implanting any

ideas in the minds of the children.

MR. STRAUSS: We understand that

even in front of Dr. Derr that the foster

mother was referring to Suehier as Lee.

THE COURT: Well, I'll order that

the foster mother use the proper Arabic names

for the children.

MS. BREEN: We have no problem

MR. STRAUSS: And, also not take

them to church since they're not Christians.

THE COURT: I have no problem with

that, but I think what's happening here is

when were in chambers I said, “is that the

extent?"

MR. STRAUSS: It really is. But,

these are some concerns that I think I voiced

in there.

I know that this isn't a hearing to

attack the foster mother.

THE COURT: I'm ordering the

Department of Social Services to investigate

ERATOR MO

possible Lebanese and Arabic homes; to look at

the relatives of the parents. Hopefully, that

will alleviate the problen. I don't think

it's proper for Mrs. Moore to take the

children to church other than a mosque.

MR. STRAUSS: Yes.

MS. BREEN: Your Honor, there has

been a hearing before this Court on the issue

of the mosque. The Court allowed it to

continue as Mrs. Moore was following through.

She does not take them to church, is the

information that Judson Center workers

understand.

THE COURT: I'm not going to require

that she take them to a mosque.

MS. BREEN: She is not. According

to the worker, she does not.

THE COURT: Mr. Strauss?

MR. STRAUSS: Mr. Amer is concerned

about if there was any way to take the

children to the mosque during the pendency of

this litigation?

THE COURT: No. Not until at least

the statutory rehearing when I can have a

better feel of how everything is going.

MR. STRAUSS: Thank you, sir.

THE COURT: All right. Is Mr. Longo

going to be on this case or is he just here

for today?

MR. STRAUSS: He'll be on this case

throughout its duration along with myself.

THE COURT: Anybody dissatisfied

with this cpinion has 21 days to appeal. If

they cannot afford an attorney, an attorney

will be provided for then. If they cannot

afford a transcript, a transcript will be

provided for then.

We are adjourned.

(Whereupon, at 2:46 P.M. court was

adjourned.

STATE OF MICHIGAN)

)

COUNTY OF WAYNE )

I, Grethel R. Brown, Certified Court

Reporter of the Probate Court, Juvenile

Division, State of Michigan, do hereby certify

that the foregoing pages 1 throvgh 8,

inclusive, comprise a full, true, and correct

transcript of the proceedings and testimony

taken in the Matter Of: Suehier and Mohammed

Ali Amer, Juvenile Court No. 241,317, on

December 15, 1986.

GRETHEL R. BROWN,

C.S.R. 1127

Detroit, Michigan

February 20, 1987

APPENDIX F

STATE OF MICHIGAN

IN THE PROBATE COURT FOR THE COUNTY OF WAYNE -

JUVENILE DIVISION

FILE # 84-241,317

ORDER

I N T H E MATTER

OF BORN

___AMER: Mohammed Ali 12/11/82

: Suehier Ahmed 11/18/83

>: Zinabe A. 12/9/86

From the findings and recommendations of the

JUDGE MARTIN T. MAHER based on (hearing) on

December 15, 1986, end due notice of the

hearing of the matter having been given as

@irected by the Juvenile Code, respondent

(having not) appeared on the said date in open

Court, in person with parents with Atty. L.

Strauss, Dss Worker, Judson Center Workers

APA C. Breen and K. Lonergan (their) attorney.

IT IS THE FINDINGS of the Court that the

acts complained of in the Petition(s) filed

12/5/85 alleging neglect and abuse on Mohammed

and Suehier and 12/15/86 alleging neglect on

Zinabe (have) been sustained; and

IT IS FURTHER ORDERED THAT as to petition

dated 12/15/86 regarding Zinabe, the parents

stipulate to make the child a temporary court

ward. Child found to come within Juvenile

Code and placed in Foster Care under DSS

supervision. As to petition of 12/5/85

children come within Juvenile Code, continued

in temporary custody of the Court and

remain in their present placement. The

parents are to attend counselling and

parenting classes. The parents are to give a

list of relatives and/or arabic homes for

investigation for juvenile placement. DSS and

Foster Care homes are to use the children's

arabic names. The family is to receive family

therapy with Mohammed Ali receiving individual

therapy. The statutory hearing and report

date are set for 3/10/87 at 8:30 a.m. Reports

due two days prior to Court hearing.

DATE 3/5/87

MARTIN T. MAHER

JUDGE OF PROBATE

JUVENILE DIVISION

APPENDIX G

STATE OF MICHIGAN

FOR THE PROBATE COURT, COUNTY OF WAYNE

JUVENILE DIVISION

In The Matter Of:

Juvenile Court No. 241,317

MOHAMMED ALI AMER,

SUHIER A. AMER,

ZINABE AMER,

Minors

VOLUME I

N - N

EXCERPT

BEFORE THE HONORABLE MARTIN T. MAHER,

Judge of Probate, Juvenile Division,

Detroit, Michigan 48207

October 28, 1986

APPEARANCES :

MS. CAROLYN BREEN, Assistant Prosecuting

Attorney

On behalf of the Department of

Social Services

MR. WILLIAM LADD, Attorney-at-Law,

Juvenile Defender's Office

On behalf of the Minors

MR. HAROLD GOLDBERG, Attorney-at-Law

On behalf of Mr. and Mrs. Ahmed

Amer

Detroit, Michigan 48207

Tuesday, October 28, 1986 - at

about 10:50 a.m.

(Court, counsel and all parties

present)

EXCERPT

THE COURT: The Court after

listening to the testimony of the various

parties first of all will take jurisdiction

of both children. What I'll do is I'll go

under MCLA 712A 2, 1 and 2d. It is the

neglect statute; emotional wellbeing section

of one. Under 2, the neglect. I'm also

going to go under cruelty and I'm also going

to go under depravity and also that the child

was abused.

I'll use the definition of abuse

that is found in Child's Protection Law.

That means a harm or threatened harm to a

child's health or welfare by a person

responsible for that child's health or

welfare which occurred through a non-

accidental physical or mental injury. The

Court will rule that this was not an

accident. The Court's going to address some

of the arguments of the defense attorney,

first. He says that the doctors weren't

there. Well, very rarely in a situation

where somebody causes the death of another

person do you have doctors sitting around

watching what's happening. All the doctors

can do is look at the physical evidence and

try to interpret those for the Court. It's

true that there was nobody there except for

the people and these would be the people that

killed the child. There's not going to be an

admission. At least, there has been no

admission that they in fact did do that. The

defense attorney said that the Koran is not

that important. I did not know what the

Koran was before but I heard testimony of the

father and after listening to him and the

mother I believe it's obvious that the Koran

is an extremely important part of their

religious philosophy. And, the purpose of it

is to protect their children from any harn.

Here, you have a situation where if you were

ever going to rely on that type of belief it

would be the time when the child was injured.

According to the parents' testimony they had

approximately twenty minutes between the time

of the alleged injury and the time that the

EMS got there. I believe in that situation

innocent people are in a state of

helplessness and if they're extremely

religious they rely on their religious faith.

That's one of the things I would think that a

religious person would do. Except, I don't

like to get religious in to this philosophy.

But, the parents brought it in so I'm just

addressing the issue.

The parents say they took Mohammed

to the hospital for his medical condition.

The record and the testimony indicates that

it was after three months of chronic diarrhea

which the Court will not find to be what a

rational person would do when you're taking

care of somebody's medical needs. The

defense attorney says that the medical

doctors did not testify that was the exact

cause of death. There were other hypotheses.

The only two hypotheses I heard was that

there was another child and possibly another

child pushed the deceased. It was the

testimony of the parents that there were no

other children around. The only other

hypotheses that I heard was that the child

would have to be running backwards on a

watersoaked floor and slide into the wall,

which is contrary to the testimony that the

child was in the bathtub. So, neither one of

these possible hypotheses would make any

sense whatsoever.

Attorney Breen is correct when she

Says you have to look at the history in this

case. Here, you have a case from day one or

minute one where the parents for some reason

that identify the child as a child that's

different than the other children. As

opposed to him "jumping from the stomach",

apparently it was a C-section. They

interpreted it to be a negative factor,

apparently. The child did have feeding

problems.

The child eventually, on September

4th of 1984 became a court ward based on

abuse of the fractures. The Court took

temporary jurisdiction of Samier at that time

and pursuant to the Court's philosophy made

efforts to try to reunite the family. It

took approximately a year and a half. The

maternal grandmother assisted the Court in

the gradual transfer of the child back into

the parental home. It was less than a month

and a half later that Samier met his demise.

You have to look at the testimony

of the other witnesses and compare that with

the testimony of the parents,. Here, you

have emergency room doctor at Oakwood

Hospital who says the ambulance driver and

nurse were told of a drowning victim. And,

that there was a diaper and the child's hair

was dry. That does not equal a drowning

situation. I believe the testimony of the

emergency room doctor. He has no reason I

think to fabricate a story. He said that the

hair was dry. One of the things that pops

out to the Court, and sometimes things do and

I don't know why. But, in emergency

situations like that normally you would not

put a diaper and then rubber panties on a

child if in fact the injury did happen in the

bathtub. The hair was dry and given the time

that the doctor understood that the injury

happened, coupled together with the EMS

testimony that there would not have been

sufficient amount of time for the hair to

dry.

Then, you have the testimony from

the Dearborn Fire Department. The run was

that the baby stopped breathing. The call

was 10:16 and that they arrived on the scene

at 10:20. That's approximately four minutes

later. The baby was in the mother's arm and

the baby was not breathing. The baby had

plastic pants on. Again, the Court thinks

that's important. It was over a diaper with

a blanket. Now, the testimony of the mother

was that the baby was wrapped in a towel, not

a blanket. Again, that may go to the actual

place of the injury. But, the child was not

wet and the hair looked dry. Again, given

that the mother screamed, yelled to the

father, the father immediately called the

EMS, there would not have been time to dry

the baby's hair.

The driver of the EMS unit said

that the mother told him the baby was lying

in the water face up. The baby was playing

with another child in the bathroom. The

mother heard the phone ringing and that was

the information he received from the mother.

Of course, the mother's testimony

is different. She says she did not say that.

She says he did not understand or he must be

lying as far as what he said that she said.

But, there were no other children in the tub.

The registered nurse at Oakwood

Hospital: The mother at that time said that

the child and his sister and another child

were in the tub. The water was filling in

the tub when the phone rang. Mother went to

get the phone. She heard a thud. Child fell

on his back and water was below his ear

level. The mother's testimony is that's not

what she told the nurse at that time. I

believe these last two witnesses would have

absolutely no reason to fabricate their

stories. The mother's testimony is

different. That the other two children were

not in the tub at the time.

The pathologist, certified medical

expert in the field of forensic pathology

said the child was about 33 inches and 25

pounds. The autopsy was performed on

November 23rd, 1985. There was a fracture of

the skull and cause of death was from head

injuries. The fracture occurred by the head

being hit by high velocity of speed, injuring

the back of the head. When questioned if it

was a slip in the bathtub that would give

this sufficient speed to this type of injury,

he answered in the negative. If the parent

Gropped the child would that be sufficient?

The doctor answered in the negative. In

order for the type of injury, the extent of

the injury that was caused to Samier he would

have to fall from two or three stories. He

said with that type of injury the child would

have to be taken and swung to cause this type

of injury. That's the speed and velocity

that would be necessary to cause the type and

extent of the fracture as he indicated. He

said that the cause of the injury was one

impact caused on a flat surface.

The director of pediatric intensive

care at Children's Hospital noted also

besides basically paralleling the testimony

of the medical examiner that there was

retinal hemorrhiging. He said that the

history that's given by the parents does not

cause the type of injury that we had in this

situation. He said it's the type of injury

that is indicative of severe force to the

head; direc:t impact similar to if the baby

had fallen from two stories. He said that he

had retinal hemorrhaging and a fracture. He

said it was important because they could have

happened at the same time or they could have

happened at two <ifferent times.

We have the testimony of Ronald

Bunse, Dearborn Police Department. He talked

to the mother and the father. The mother he

talked to at 1:20. The father he talked to

at about 8:30 that evening. Mother said that

she found the chiid in the tub with his face

covered with water. Mother refutes that

testimony and says it's not true. Again, the

Court believes Officer Bunse. I can't think

of any reason he would want to fabricate the

story. He has no interest in the case. He's

just doing his job. That the mother found

the child in the tub with face covered with

water. That the child said, "Oh wad" and

pointed to the wall. The mother denies this

testimony. Again, there's no reason for the

police officer to make this up. When they

interviewed the fa sue , the father's story

pretty much paralleled the mother's, except

there was no testimony regarding the wall.

The officer also testified that the mother

said that the child was submerged in the tub

except for his eyes and mouth.

Patricia Lawson, petitioner for

Protective Services said that the parents

said that the child Samier was a difficult

child with problems since birth. The child

was made a court ward because of fractures

when the child was four months old.

Testimony from Martha

Stanislovaites, registered nurse from

Botsford was that Mohammed Ali was in

Botsford for feeding problems. There were

two different charts. One said that the

parents were feeding the child improperly and

later the parents said they would follow

instructions.

The parents' second witness, that

would be Ms. Chahine was offered at Oakwood

as an interpreter. It's important because

100

she was one of the respondents' witnesses.

She said first of all the mother did not have

any problem understanding English and neither

did the father. And, they could both

communicate well. The Court in observing the

demeanor and the responses to the questions

would also indicate that there's no problem

in understanding or communicating English.

But, the mother at that time said that the

water was running in the tub and that the

children -- the two boys for sure were in the

tub when the water was running and the phone

range. That's consistent with the testimony

that's given by the earlier witnesses put on

by the State and inconsistent with the

testimony as given by the mother.

There's inconsistencies and

differences in testimony as far as who was

the caretaker of the children. But, ona

whole, their stories pretty much paralleled

each other. The Court had an opportunity to

observe the witnesses, observe the demeanor

and tried to pick up any subtleties that I

r01

think are important to myself. One of the

things that I found important was the father

when he was testifying. His emotions pretty

much fit what I would consider appropriate

during the time of his testimony that would

parallel injuries of the child. The mother,

while she was giving testimony up until she

started to actually give testimony of how the

injury occurred or the telephone

conversation, I thought her emotions were

somewhat forced. When she gave testimony of

how the injuries occurred I did not think her

emotions were consistent with what had

transpired at the time. Later on when she

testified as to when Samier died her emotions

-- again, I'm talking about basically her

tears were appropriate and her demeanor also

changed. That when you get to the critical

area of what happened then testimony is

relied on by rote. We heard her orchestrate

what would sound best to the Court, as

opposed to what really happened.

Mr. Ladd is correct. We don't know

102

who did it. It was either the mother of the

father. I have no doubt in my mind it was

one of the two that did it. But, based on

the child's history with the court, the other

parent should have been in a situation to

protect that child from the injuries from the

parent that caused the death of the child.

The Court will further point out

two other things that I think are important.

First is that this mysterious phantom phone

caller never called back. If I called

somebody either on a business line or ona

personal matter and the person lifted up the

phone, said, “hello and then screamed I would

have done one of two things. I would have

called back to identify myself and ask what's

happened. Or, if it was a business phone

call I would have done the same thing. I

would have been concerned. I think an

average person, not merely family or business

would have called back. So, as far as the

parents having no testimony or nobody to

offer as to who was the phantom phone caller,

103

I think is consistent with the story not

being factual.

The mother testified that there was

a sliding door on the bathtub and that

sliding door would have tracks. If a child

was standing in the bathtub that would not be

a slippery bathtub because of these tracks

which would take away from the story of the

child slipping. If the child was in the

bathtub and slipped, that would be

inconsistent because the mother's testimony

was that there was a bathmat in the tub to

prevent a slipping situation.

So, if you take all of the

testimony put together and you just use

common sense this is a situation where one of

these two people is responsible for not

protecting that child. Under the cases as

cited by the Prosecutor the case cited by

Attorney Ladd, the Court will make the other

two children wards of the court. The Court

believes that these children definitely need

protection from both of these parents. These

104

cases are In Re: La Flure, In Re: Ditrich

and In Re: Futch.

Anybody dissatisfied with this

opinion has 21 days to appeal. If they

cannot afford an attorney, an attorney will

be provided for them. If they cannot afford

a transcript, it will be provided for then.

I am making both of these children

wards, temporary wards of the court at this

time.

Where are the children at?

MS. BREEN: In foster care, Your

Honor.

THE COURT: The children will

remain in foster care until disposition.

We'll set a disposition date.

I know Mr. Goldberg was not present

yesterday and I'll assess one hundred

dollars.

If you're dissatisfied with that

opinion you also have 21 days to appeal.

That hundred dollars should be paid within 10

days.

105

MR. GOLDBERG: Your Honor, I never

had an opportunity to address that. Can I do

that now?

THE COURT: No, set it up. I'll

let you address it at another time.

The earliest I can put this in for

disposition would have to be the 18th of

December. Be here at 8:30.

MR. GOLDBERG: Your Honor, I have

another trial on that date. Is Wednesday,

the 17th possible?

THE COURT: No, but how about the

19th? Where's your trial at?

MR. GOLDBERG: In Highland Park.

THE CCURT: Off the record.

(Whereupon, discussion was held off

the record.)

THE COURT: I could fit you in at

1:30 on the 15th. I would ask the worker to

make some type of recommendation in writing

and present that at least two or three days

before so that the other attorneys can have

an opportunity to look it over and see if

106

they're going to have something to counter

indicate that.

What I'll do is I'1il set it for

1:30 on the 15th. I'm only going to be able

to give you about an hour. I have a jury

trial that afternoon.

MR. GOLDBERG: That'll be fine.

MS. BREEN: Your Honor, on behalf

of the petitioner we would ask at this time

for an updated clinic referral. We believe

it would be very appropriate in this case to

determine where placement should be for these

children.

THE COURT: I'll order a Clinic.

If it's contested we'll set another date.

MS. BREEN: Thank you, Your Honor.

(Whereupon, at 11:10 a.m. court was

adjourned. )

STATE OF MICHIGAN)

)

COUNTY OF WAYNE )

107

I certify that this "EXCERPT OF THE

PROCEEDINGS", consisting of 13 pages, is a

complete, true, and correct transeript of the

proceedings taken in this case on October 28,

1986.

Date GRETHEL R. BROWN

CSR1127

APPENDIX H

STATE OF MICHIGAN

IN PROBATE COURT FOR

THE COUNTY OF WAYNE

JUVENILE DIVISION

REPORT AND RECOMMENDATION

OF REFEREE

In the Matter of__AMER: Samier No. 241,317

A child(ren) alleged to come within the

Provisions of Act 54, Extra Session of 1944

as amended

I, the undersigned, a duly appointed

Probation Officer of this Court, acting as

referee in accordance with the Provisions of

Act 54, Extra Session of 1944 as amended, of

the State of Michigan, hereby certify and

108

report that I have this day taken the

testimony of the witnesses and statements of

the parties in interest in the above matter,

and no objection was made by the parties in

interest to the taking of such testimony and

statements; that the testimony and statements

so taken show that: Child(ren) is(are) under

the age of nineteen years;

Samier, born 11/18/83

The matter is before the Court today,

September 4, 1984, for continued adjudication

on a Petition filed April 2. 1984, by Steven

Rose of the Wayne County Department of Social

Services.

Present in Court today are: ctl Pat

Battersby, for the Department; Steven Rose,

petitioner: Cynthia Falkenstein for the

baby; retained attorney, Gary Eisenberg, for

the mother and father, Rehab and Ahmed Amer.

Both parents are present, as well as Ellen

Rumman, Tula Michalakis and Mary Lane, all

three of the International Institute and

109

Betty Glover of the Court's Family Treatment

Unit.

The Court conducted Pre-trial April 16, 1984.

The matter was continued at the request of

counsel for further Pre-trial May 10, 1984.

On May 10, 1984, the Court received four

exhibits that were joint exhibits of the

Department, child and parents, being Exhibit

#1, a letter from Dr. Sheldon A. Schore, D.O.

to Gary Eisenberg, dated April 4, 1984,

Exhibit #2; the medical records of Samier

Amer from Dr. Sheldon Schore, Exhibit #3, an

Affidavit signed by Wafaa Bazzi, May 7, 1984,

and Exhibit #4, being the medical records of

Samier Amer from Oakwood Hospital dated April

24, 1984.

The Court took sworn testimony June 12th from

Paula Fisher, Public Health Nurse; partial

testimony from petitioner, Stevevn Rose, from

Dr. Carolyn Johnson and from Dr. Sheldon

Schore. The Court heard sworn testimony July

110

31st from Dr. David Osher and from Dr. A.

Suarez and completed testimony from Steven

Rose. The Court also received with

limitation, the medical x-rays of the child,

Samier. The Court heard partial sworn

testimony from the mother, Rehab Amer. The

Court, today, heard sworn testimony from the

mother and from Ellen Rumman. The Court also

heard dispositional testimony from Dr. Ruth

Day of the Clinic for Child Study.

Based on the testimony in the record as a

whole, the Court makes the following findings

of fact for purposes of adjudication and

partial disposition:

FINDINGS OF FAC?

(1). Samier Amer was born November 18, 1983,

at Oakwood Hospital. He is a resident

of Wayne County, residing with his

parents, Ahmed and Rehab Amer, at the

time of Court intervention.

111

(2). He has a twin sister, Suehier. He has

(3).

(4).

(5).

an older brother, Mohommad Amer, born

12/11/82.

The child was detained at Oakwood

Hospital as a result of a 3200 filed by

hospital personnel, involving bites, as

well as numerous fractures.

—_ on the testimony of Paula Fisher,

Public Health Nurse, the Court concludes

the. child was difficult to handle with

the family switching formulas. The

child stiffened and screamed when

changed by mother.

Based on the testimony of Steven Rose,

the Court concludes that the Department

became involved as a result of a

referral from Oakwood Hospital. The

child had bite marks on the left side of

his torso, the back of his neck and the

bottom of his feet. The Department of

112

Social Services filed a Petition due

to the unexplained fractures and bites. The

Department never did investigate the

identified babysitter of Wafaa Bazzi nor the

father alone, nor others in potential contact

with the child in the care of the relatives,

Mr. and Mrs. Ayache, also of Dearborn.

‘Department investigation shows the family to

be residing in a fine, clean, suitable home

and shows the family to be close knit, with

bonding and no evidence of marital discord.

(6). Based on the testimony of Dr. Carolyn

Johnson, who is qualified as an expert

in Pediatrics by her educational

experience, the Court finds that Samier

is a much different child than his

siblings. The doctor initially assumed

the child had a milk allergy and,

therefore, changed the child's formulas.

The doctor did arrange for the child to

be admitted to Oakwood as a result of

the mother's continued complaints

113

regarding the child's feeding problems.

The doctor observed that the child had a

fracture in the left femur, the left

tibia and the right humerus. The doctor

conducted a number of tests to rule out

bone problems. There is no medical

reason for the child to have a large

number of fractures. The doctor found

the child to be a very stiff baby who is

hard to manipulate. This trait is

called being hypotonic. A normal baby

is more floppy, like jello.

The doctor, based on her

observations and testing concluded

that there was needed a substantial

height or quire an acceleration

motion in order to break the bone

as the child is a very small mass.

The doctor, based on her

experience, found that a child ci

his age would scream when touched

as a result of these injuries and

114

there would be swelling for several

days that would be observable to

others about the child. The doctor

found the child to be very

attentive to his mother and the

child definitely preferred his

mother to any other person.

(7). Based on the testimony of Dr. Sheldon

Schore, who was qualified as a result of

his practice as a D.O. since 1966, the

Court finds that the family had regular

contact with Dr. Schore from December 5,

1983, through February 1984. The child

was brought in for treatment on a

regular basis. The family did bring the

child to his attention January 20, 1984,

when the child's right arm was limp.

Dr. Schore referred the child to an

orthopedic specialist, Dr. Mandell. The

doctor did not file a 3200. The doctor

noted the child did have continuing

feeding problems and the mother

115

(8).

preferred finally to go back to a

specialist and to have her child at

Oakwood Hospital.

Dr. A. Suarez, per stipulation of

counsel, qualified as a Board certified

Orthopedic surgeon. The doctor observed

the child, Samier, in the hospital, as

well as reviewed the March 13th x-rays.

The doctor based on his expertise found

five areas of fractures, being the right

humerus which is the upper right arm;

the left upper tibia, which is the area

between the knee and the ankle, the

distal and middle left femur which is

the area between the head and the knee

and the left clavicle which is the

collarbone. The doctor, based on his

experience, concluded it to be likely

child abuse. The doctor, based on his

physical and his review of x-rays, found

that fractures, when fresh, result in

pain and swelling and then go into a

116

(9).

lumpy stage. The left clavicle injury

was at the lumpy stage when the child

was at the hospital. The doctor, based

on his experience, found the left

clavicle probably to be the oldest

fracture more than one to two weeks of

age. The child had no pain in any other

part for previous fractures were

evidenced. Based on the doctor's expert

testimony, the Court concluded that the

child or anyone close to the child would

or should notice the injury to the

child. The doctor would place, at the

outside, the injuries at the age of 3

weeks, at most, more likely 1-2 weeks

old.

Based on the testimony of Dr. David

Osher who was qualified as an expert

radiologist by counsel and who took the

x-rays of the child and who wrote a

report for the medical records March 14,

1984, the Court concludes that there was

117

: \) |

extensive periosteal new bone formation.

The observations of the new bone

formation in conjunction with the

observation of the healing fractures

leads the Court to find that these

fractures did occur and are of differing

ages.

(10). Based on the testimony of Conna

Sabo who is qualified as an expert

medical social worker based on her

education and 10 years experience,

the Court finds that the hospital

filed one 3200 initially on the

observation of the bites on the

‘child's body and then a second 3200

as a result of the discovery of the

fractures. Ms. Sabo confirmed the

mother continues to be concerned

over her child from birth and that

she claimed the child jumped out of

her during the C-section. Ms. Sabo

never interviewed the father

118

(11).

regarding any explanation. Ms.

Sabo acknowledged that the mother

is very concerned for her baby.

Through the efforts of Ms. Sabo,

the siblings were examined and they

had no signs of physical abuse.

All three children were up-to-date

on their shots and physicals. The

mother did not, initially provide

the name of the babysitter to the

hospital as she had sworn on the

Koran not to reveal the name of the

babysitter. The mother

subsequently revealed the

babysitter's name.

The mother, Rehab Amer, testified

that her child, Samier, was always

different. That he jumped from her

stomach and screamed on the second

day. The mother wondered why the

child cried all the time. The

mother took her children to Dr.

119

(12).

Schore and to other persons. She

even had to force feed her baby

with a dropper in order to get him

to eat. The mother tried various

kinds of formulas and feedings and

finally resorted to asking that

child be put into the hospital.

The mother is willing to work, and

has been willing to work with Ms.

Rumman of the International

Institute.

The mother was responsible for sole

care of the child. She did not

have her husband watch the baby

alone. The mother knows about the

fractures, but has no explanation

for the fractures. The mother's

position is that she loves her baby

and why would she keep talking to a

doctor if she had harmed her child.

Ellen Rumman, a licensed master

120

(13).

social worker with the

International Institute specializes

in providing counselling in the

Arab community. Ms. Rumman has

visited the mother and baby and

relatives in the family home. She

found there to be good respect

between the mother and father with

a strong family network. She notes

that Mrs. Amer wishes to follow her

own mother's footsteps as a good

mother. Mrs. Amer's mother raised

14 children. Mrs. Rumman saw a

warm relationship between the

mother and the child, Samier. The

mother also responded appropriately

to her other children. Mrs. Rumman

acknowledged that discipline is

part of the cultural background and

that hitting is a sign of caring

within the Amers ethnic group.

Dr. Ruth Day was qualified as an

121

expert in psychiatry based on her

education and experience and she

saw the family on two occasions.

Dr. Day's evaluation was somewhat

limited due to the fact that not

all family members are fluent in

English. Mr. Amer provided some

translation for the aunt, who is

the child's caretaker. Dr. Day

acknowledged that there was

something wrong with the child,

Samier, which would have been

caught by the various doctors who

viewed the child. Dr. Day found

the mother to be carrying the very

heavy burden raising three children

under the age of one year, having

sole responsibility and having no

relief with any babysitters. The

child was comfortable in the care

and custody of his father. The

child, Mohammed, is an independent

child and has no unusual signs in

122

his behavior. Dr. Day believes it

is necessary to have an interpreter

to assist the family in preparing a

final treatment plan. Dr. Day

concludes that the mother, more

likely, had a particular fixation

on this particular child and the

doctor acknowledged that the mother

was substantially overworked. Dr.

Day recommends against return of

the child at this time, to the care

of the parents.

CO W

(1). The Court has jurisdiction over the

(2).

subject matter and the parties.

The allegations made in the Petition

filed April 2, 1984, pursuant to MCL

712A.2(b) have been substantiated, and

the parents wish an adjournment to

present further dispositional testimony.

123

THEREFORE, IT IS RECOMMENDED THAT Samier Amer

be made a temporary Court ward, continued in

the care of his aunt, Mrs. Ayach under the

temporary placement Order of shelter care or

suitable relative pladement under the Family

Treatment Unit supervision, with the case

continued to October 31, 1984, at 9:00 a.n.,

at the parents' request for further

dispositional testimony.

APPENDIX I

Michigan Supreme Court

Lansing, Michigan

ORDER

Dorothy Comstock Riley

Entered: July 31, 1990

Chief Justice

89463 & (93)

In the Matter of MOHAMMED ALI

AMER, SUEHIER AHMED AMER and

ZINABE AHMED AMER, Minors

DEPARTMENT OF SOCIAL SERVICES,

Petitioner-Appellee,

Vv SC: 89463

COA: 114910

REHAB AMER and AHMED AMER, LC: 241-317

Respondents~-Appellants.

124

ol STS

On order of the Court, the

application for leave to appeal is

considered, and it is DENIED, because we are

not persuaded that the questions presented

should be reviewed by this Court. The motion

for stay is DENIED as moot.

I, CORBIN R. DAVIS, Clerk

of the Michigan Supreme

Court, certify that the

foregoing is a true and

complete copy of the

order entered at the

direction of Court.

July 31, 1990

Deputy Clerk

APPENDIX J

Michigan Supreme Court

Lansing, Michigan

ORDER

Dorothy Comstock Riley

Entered: September 28, 1990

Chief Justice

89463 (99)

125

In the Matter of MOHAMMED ALI

AMER, SUEHIER AHMED AMER and

ZINABE AHMED AMER, Minors

DEPARTMENT OF SOCIAL SERVICES,

Petitioner-Appellee,

Vv SC: 89463

: COA: 114910

REHAB AMER and AHMED AMER, Ie: 241-

317

Respondents-Appellants.

On order of the Court, the motion

for reconsideration of this Court's order of

July 31, 1990 is considered, and it is

DENIED, because it does not appear that the

order was entered erroneously.

I, CORBIN R. DAVIS, Clerk of the Michigan

Supreme Court, certify that the foregoing is

a true and complete copy of the order entered

at the direction of Court.

September 28, 1990

Clerk

APPENDIX K

The Children's Home Of

JUDSON CENTER

NATURAL PARENT/AGENCY AGREEMENT

Child's Name: Date of

Placement

Parents:

do agree for my child

to be placed in Foster Care through Judson

Center. I do further agree to:

a. Be an active member of the treatment

team by attending quarterly case conferences

and assisting in treatment planning.

2. Be supportive of the foster parents and

caseworkers in their efforts to work with my

child.

3 Work with the caseworker on establishing

goals for our family and working hard to

achieve these goals, so that a more

127

= sae

permanent placement for our child will be

possible.

4. Arrange for visits with our child with

the caseworkers and follow through with these

visits as planned.

5. Be supportive of our child while he/she

is in placement by maintaining contact and

interest in his/her life.

6. To obtain counseling regarding parenting

skills and grief therapy.

7. To provide Judson Center documentation

of progress in said counseling on a bi-

monthly basis if receiving services from

an agency other than Judson Center.

Parent Date

Agency Foster Care Caseworker Date

128

APPENDIX L

The Children's Home Of

JUDSON CENTER

NATURAL PARENT/AGENCY AGREEMENT

Child's Name: Date of

Placement

Parents:

We,

have stated an interest in regaining care

and custody of our children,

and in order to work toward that goal we

agree to the following activities:

1. Attend quarterly case conferences

to plan goals, help assess progress

and exchange information.

129

Visit on a weekly, supervised basis with

our children.

Meet with the caseworker on a weekly

basis during supervised visits.

To continue to attend counseling to

resolve grief and other feelings

surround the death of our son, Samier

and regarding appropriate parenting

skills.

To attend counseling to acknowledge and

accept responsibility for the severe

abuse inflicted on Samier Amer, now

deceased.

To provide Judson Center releases and

documentation of purpose progress and

attendance at said counseling on a

completed, bi-monthly basis if receiving

services from an agency other than

Judson Center.

We understand that the goals we set and the

progress we make will be used in reports to

the Court. We are also aware that complete

fulfillment of this agreement does not

guarantee (immediate) return of our children,

but will be an important factor in the Judson

Center recommendation to the Court. We also

understand that failure to meet the terms of

this agreement may result in a petition to

the Court requesting termination of parental

rights to our children.

The Judson Center worker, acting on behalf of

the Department of Social Services, agrees to

assist the client in his/her efforts to

regain custody of his/her children and in

order to work toward that goal agree to the

following:

1. Notify the parent(s) regarding

quarterly case conferences.

a Arrange visits on a weekly supervised

131

visits between the children and parents.

36 Meet with the parents on a weekly basis

during supervised visits with their

children.

4. To receive and review by-monthly

counseling reports from the

agency/agencies where the parents are

involved in therapy.

5. This caseworker will supervise weekly

visits between the parents and the

children and if necessary will engage in

limit setting with regard to parental

concerns/ issues.

The above agreement is to insure the proper

care for the children and planning for the

children and family.

It is agreed that this agreement will remain

in effect until jointly amended or if new

132

circumstances and/or information warrants.

It will be reviewed at least quarterly to

determine progress toward meeting the above

goals.

Parent Date

Agency Foster Care Caseworker Date

Appendix M

At the preliminary examination of a

criminal proceeding against Mrs. Amer before

Judge Joseph Burtell, Dr. Suwait, who

performed the autopsy on the body of Samier

was questioned on direct examination as to

his observations. As for external trauma he

answered that there was a small bruise on the

left side of the cheek. As for internal

trauma he testified:

When I did examine the

head, I found that, you

know, there was a bruise

on the back of the head,

about this area (pointing

133

to the back of his head)

that was not seen

externally.

(THE COURT): It was not

seen externally?

(THE WITNESS):

That's correct. When you

open up the scalp, you

know, there's a big

bruise there and

underneath the bruise

there was a fracture of

the skull ....®

The witness continued:

Yes. And when I examined

the brain, I found that

the brain, underneath

that, is bruised,

contused, and also there

was a contusion of the

brain on the front half,

and there is a little bit

bleeding inside the head

on the front part of the

head, and that were all

the injury I have seen in

this particular case.

(T 2/7/86, p. 15-16)and

see (a-5)

Counsel has obtained the

transcript of the

evidence at the criminal

trial of Mrs. Rehab Amer,

found innocent of killing

Samier. As a matter of

public record this Court

should consider taking

judicial notice of it.

It is summarized

below and the transcript

is submitted herewith.

134

The first portion

of the trial was held on

August 7, 1986.

James A. Caputo was a firefighter for

the City of Dearborn and drove an ambulance

to the Amer home on the day Ssamaier died.He

testified that Mrs. Amer never indicated that

she thought the child had drowned or feared

that he had drowned. (T.15) The fire officer

however reported a possible drowning because

the mother had indicated that she found

Samier face up in the bathtub. He

characterized his hypothesis as an

"assumption". (T.18)

The next witness was a Bruce Darr who

was a corporal with Dearborn Police

Department. (T.20) He testified that he

questioned Mrs. Amer who said that the

children were in the bathtub, the phone rang,

she answered it, heard a loud thump, ran back

to the bathtub and found Samier lying face up

in about four inches of water. (T.23-24)

Darr also testified that Mrs. Amer said that

she gave Samier CPR, that he started

135

breathing again, she dried him off and

dressed him and asked her husband to call the

fire department.(T.26) She apparently

notified several other family members who

came over to the Amer home. (T.27)

In response to Officer Darr's questions

Mrs. Amer denied being responsible for the

injuries to the child. (T.32) The two doctors

with whom Officer Darr spoke with were Dr.

Webley and Dr.Derum. (T.35)

Officer Darr indicated that at the time

he had some doubt about the truth of what the

Amer's were telling him. (T.39) Officer

Darr made no follow-up investigation into the

circumstances surrounding the Amer household

at the time of the death of Samier. (T.41)

And did not scrutinize the ccndition of the

bathroom or the bathtub. (T.41) In fact he

did nothing to investigate the condition of

the house. (T.41.42)

The trial continued on August 11th,

1986 with the testimony of Dr. Ashok Sarmaik.

Dr. Sarmaik was the Director of Intensive

136

Care at Children's Hospital and had been

licensed to practice medicine and had gone to

medical school in Bombay, India. (T.3-4) He

was not a specialist in pathology. (T.5) He

was not an expert in determining causes of

death by unnatural means. (T.5-6)

The Doctor testified that Samier arrived

at Children's Hospital on November 2ist, 1985

at about 11:00 o'clock in the morning.T.6-7).

A discussion ensued about the qualifications

of this doctor to testify as to a possible

cause and finally the court indicated that he

could be an expert in a "hypothetical".

(T.13) He testified that he had seen head

injuries of this type of children falling

from second story windows. (T.15) ;that the

type of injury that he observed in Samier was

not consistent with the child falling ina

bathtub. (T.16) ( It should be noted he did

not testify that the type of injury could not

occur as a result of falling in a bathtub

under circumstances where the child had a

history of unexplained fractures and possibly

137

of bone disease. Nor did he explain how it

was that the other indicia of an impact which

would be analogous to falling from a second

story window were not present in this

instance. )

This doctor had not done an autopsy.

(T.17) and had obtained a history of this

incident from a medical resident whose name

was Ellen Christy.(T.18) Of course the

doctor could not speculate as to who would

have been responsible for the injury to

Samier. (T.22) The essence of the doctor's

testimony was that this injury was not

consistent with the fall in the bathtub in

the usual case. Nor could he testify whether

the injury was caused by a person out of an

angry, upset or raging reaction or whether it

was a cool intended action. (T.24)

Putting aside the history as reported

to the doctor by others he could not rule out

a severe accident as being the cause of the

injury. (T.25).

Question: OK,

finally Doctor, just once

138

again to clarify a

point: you can only rule

out when Mr. Wright asked

you about an accident

causing these injuries,

an every day type of

child accident, however

you cannot rule out a

severe accident as being

the cause in this

particular case. Is that

correct?

Answer: Without a history, I

cannot." Page 32.

The next witness was Dr. James Webley.

Dr. Webley was the emergency room physician

at Oakwood Hospital and was on duty November

21st, 1985. He was a certified emergency

physician without any other specialty. It

was unclear to the doctor what had happened

and so he asked the nurse to get the history.

(T.40) The child was not bleeding from

anywhere. No bleeding at the back of the

head and nothing but a bruise on the left

cheek which was not very well

developed. (T.42) The doctor testified that

the story did not make sense to hin. (T.42)

This doctor thought that the history was of a

139

drowning but he did not indicate where he

obtained that information. (T.54) -The

doctor never talked directly to the

parents. (T.46) He could not determine the

time when the child's difficulties began.

(T.48) but he did say that the difficulty

could have been as much as 3 hours prior to

him seeing the child. Dr. Webley filed a

child abuse report but he testified that he

would file such a report even with the

slightest suspicion that child abuse had

occurred. (T.52-53)

The next witness was Dr. Linda Derhun.

She was the house physician at Oakwood

Hospital. She testified that looking

Paul Monberg was a firefighter for the

city of Dearborn. He responded to the

emergency call of the baby not

140

breathing. (T.64) He entered the Amer house

at about 10:20 a.m. on November 2list, 1985.

When he arrived at the house the child was in

the mother's arms. (T.65.66) He testified

that the child was dry; (T.67) and that the

child was not bleeding from anyplace and not

from the back of the head.(T.68) He did not

himself go into the bathroom to see what the

bathroom was like. He assumed it was a

drowning. (T.70) When Monberg arrived at the

Amer house there were many people there, at

least 6.(T.71-72) He could not say whether

the baby had been in water or not.(T. 72) He

didn't run his fingers through the baby's

hair and really wasn't paying attention to

whether the baby was wet or dry.(T.73) When

asked whether his partner had said that the

mother or the father had indicated that the

child had drowned the answer was "I assumed

that". T.76)

Ahmed Amer, the husband of the defendant

Rehab Amer was called as a witness by the

state. He testified he worked at Ford Motor

141

Company and did work on November 20, 1985.

(T.80), and that he went to sleep at his

usual time, about 3:00 o'clock in the morning

after coming home from work. He looked in at

his children and they were fine.

He awoke at about 8:30 or nine o'clock

the next morning. The phone had rung and Mrs.

Amer went to pick it up so as not to wake

him. (T.87) He testified that a rule in the

home was that his wife would make every

effort to make sure the phone doesn't ring in

the morning when he was sleeping. (T.109-110)

That would be on November 21st. He awoke to

his wife's scream. (T.82) He testified that

he saw his wife trying to revive Samier who

had no clothes on.(T.84) The other children

were half way dressed in diapers and

towel. (T.84-85) They both tried to give the

child mouth to mouth resuscitation.

He testified that he had no difficulty

with Samier except that Samier was sick all

the time, (T.89) and that the sickness caused

him to take the child to seek medical

142

attention; (T.91) that Samier was sick all

the time in contrast to the other children,

such as difficulty in feeding (T.101) but

that this posed no difficulty for his wife or

himself in the interaction of themselves with

the child. (T.102) He testified that his

wife was generally a soft spoken

person(T.106) and that she had never told -him

that she hurt or assaulted the child. (T.116)

The next witness was Dr. Sawait Kanluen.

Dr. Kanluen testified that he was employed at

the Wayne County Medical Examiner as an

assistant medical examiner for Wayne County

and he was a board certified in pathology as

well as anatomy and forensic

pathology.(T.118) He was a graduate of the

medical school in Bangkok, Thailand, in 1966

and testified in court once or twice every

week. (T.120) As to the autopsy of Samier:

“When I examined the head

I found that there was a

bruise or contusion on

the back cf his head and

the skull underneath was

broken, a so called a

stellate (sic) fracture.

143

That means that there is

a center area around the

fracture radiated from

that point, a stellate

fracture."

"Question: Let me stop

you right there. You

indicated-that there was

a bruise on the back of

the head.

Answer: Yes.

Question: Was that

visible by looking

externally at the scaip?

Answer: No.

Question: How did you

determine that there was

a bruise on the back of

the head?

Answer: Because we cut

the skull open, make an

incision and we take the

skull back and that when

you know, I begin to see

that bruise.

Question: So there was a

bruise on the inside of

the skull?

Answer: That's right.

He also, after opening

the skull, examined the

brain."

"And the brain was

contused or bruised,

there was bruise in the

front part of the brain.

And there was also

144

hemorrhaging in the

brain." (T.122-123)

So far as any other observations, Mr. Kuwait

said:

"Except the injury to the

head, I did not see any

other thing unusual."

Page 124.

"Question: So there was

no other injuries to this

child other than the

injury to the head, this

bruising on the inside of

the scalp, the stellate

fracture to the back of

the head and the bruising

in the front of the

brain?"

Answer: Right." (T.124)

He answered in response to the question as to

the cause of death as follows:

"The cause of death was

due to his injuries."

(T.124)

And he said in response to the question as to

what caused the

injury:

"The extent of the injury

and the pattern of

injury, both on the skull

and the bruise in the

brain, indicated that,

you know, the injury

happened when the nead

was moving at a great

speed and velocity. And

it hit a big object."

(T.124)

145

He testified that it would have been a

blunt object. (T.125)

"Question: So basically

you are saying that this

blunt object when the

head was moving at a

great rate of speed hit a

fixed object like a wall?

Answer: Like a wall,

like a floor or any flat

surface space. But the

object is stationery and

the head was moving."

(T.125)

He testified that it was possible that

someone swung the child and the head hit the

wall. (T.125) The witness testified that he

Classified this as a homicide. (T.127) He

said he reached his conclusion because this

could not happen from an ordinary fall in the

bathtub.

"If it is due to a fall,

it has to be a fall from

a great height like 2, 3,

4 stories and fell--the

back of the head down."

(T,128)

"If that would happen,

then--you know--the child

would have some outer

injuries, too." Page

128.

146

(There were none, however and the

logical conclusion can only be that such

force did not cause the injury to Samier.) A

complete account of the medical examiner's

report is contained on Page 124 through 129

of the transcript.

The doctor testified on cross examination

that he could not tell that the child's skull

was fractured until the skull was opened

up.(T.133) Dr. Kuwait testified that the

child's head moved at a great rate of speed

and hit a fixed object. But he also then

testified on cross examination that it could

have been a wall it could have been the

floor it could have been anything and it

could have been the top of the

bathtub. (T.134); or the sink or the tile

floor. The doctor testified that he couldn't

tell how far the child's head was from the

object that it hit;(T.136) couldn't tell if

the child was ten feet from an object which

the child hit or two feet.(T.136) but that a

147

great rate of speed was necessary to cause

this type of injury. (T.137) that in order to

swing the child's head so that its head would

hit a fixed object the person swinging the

child would have to have an extreme amount of

strength. (T.137) Dr. Kuwait did not rule

= ibility that the inj la

; b ter See cintde Dinenis

event that the child ran at full speed that

. mility tha

¢) hild sli i i fell bac} is in t}

t —-146

"Question: OK. And if

the child was running at

a great rate of speed,

falls back and hits his

head and rolls or slips

into the tub would that

be consistent where that

eye bruise came from--

that face bruise came

from? That's a

possibility as well?

Answer: Well, anything

is possible.

Question: All right,

that is exactly my

point."

148

"Question: You cannot

rule out that the child

was thrown from a foot of

five feet four inches to

six feet in height by

someone slipping and

projecting them toward

either a bathtub or tile

or wall: you can't rule

that out either, can you?

Answer: I cannot rule it

out, and like I said--"

(T.149-150)

Officer Bunce was a Detective Sergeant

with the Dearborn Police . (T.163) He found

nothing unusual about the bathroom or

bathtub. (T.163)There is no testimony in the

record that any other police officer ever did

any further investigative work in the

bathroom or in the Amer home to determine if

there was any evidence of blood or marks or

any indication of foul play. This in itself

would lead to the inference that there were

no such evidence.

He testified that Mrs. Amer said that

she thought the baby had struck the wall.

(T.168) The detective's report apparently

did not indicate that Mrs. Amer ever said to

149

him that the baby might have drowned. (T.172)

She did indicate that he might have slipped

and hit the wall. (T.169) He indicated the

sentence given by Mr. and Mrs. Amer are

essentially the same. (T.174) Apparently the

detective had no suspicion about the versions

that the Amers had given him, but it was his

job to be suspicious and he relied on the

doctor's report that he didn't feel that the

injuries were consistent with what he had

heard so he went back to check the bathroom

and so forth and he found nothing. (T.176)

So much for the evidence at the criminal

trial.

Appendix N

Litigation Chronology

03/24/84 Samier Amer made temporary ward of

the Court.

11/24/85 Suehier and Mohammed Ali placed in

foster care.

12/02/85 Probable cause hearing, Referee S.

Weherman.

12/13/85 Pre-trial. Referee Drake.

12/17/85 Motion for placement in home of

relative.

150

02/27/86 Neglect Petition.

06/24/86 Parent-Agency Agreement.

08/13/86 Rehab Amer found in Wayne County

Circuit Court not guilty in

death of Samier.

10/28/86 Decision of Martin T. Maher placing

Mohammed Ali and Suehier within the

jurisdiction of the Probate Court.

12/02/86 Motion to replace attorney for

children.

12/02/86 Motion for dismissal of petition.

12/11/86 Neglect petition re: Zinabe Amer.

12/15/86 Dispositional Hearing before Judge

Maher.

12/15/86 Order of Judge Martin T. Maher that

Mohammed Ali Suehier and Zinabe are

within the jurisdiction of the

Court.

03/05/87 Motion to remove William E. Ladd as

guardian ad litem on the grounds of

his racist conduct and beliefs.

03/05/87 Motion to set guidelines re:

"admission of responsibility".

03/09/87 Motion to reunite minor children

with parents forthwith.

5,7,8,29/87 Statutory Hearing held with

Judge Barsamian.

05/29/87 Order of Judge Barsamian after

statutory hearing continuing foster

care and requiring confession of

guilt.

05/29/87 Order barring visitation between

151

06/03/87

06/19/87

12/11/87

12/23/87

Ol/ /88 -

01/09/89

01/30/89

02/06/89

03/07/89

05/31/89

6/12/90

7/31/90

9/28/90

Rehab Amer and Mohammed Ali Amer.

Motion for Reconsideration of Order

re: visitation of Minor Child with

natural mother.

Application for leave to appeal

from statutory review by Judge

Barsamian of 05/29/87.

Petition for Rehearing for

permanent termination.

Petition for Neutral Psychological

Conjoint evaluation.

Termination and Statutory

Hearing held by Judge

Barsamian.

Order of Termination.

Claim of Appeal filed.

Motion for stay of proceedings

permitting visitation pending

appeal denied by Probate Court.

Leave to Appeal to the Court of

Appeals re: visitation pending

appeal denied.

Leave to Appeal to Supreme Court

re: visitation pending appeal

denied.

Court of Appeals opinion.

Supreme Court denial of stay and

denial of application for leave to

appeal.

Supreme Court of Michigan denial of

Motion for reconsideration

152

Appendix O

The essence of such fundamental

unfairness lies not in the mere weakness

of one party's position, but in the use

of a procedure that produces the party's

disadvantage, or that allows an opponent

to benefit from his own improper conduct

producing the disadvantage.

Denney, 536 A.2d 1242, 1248-1249 (1987)

Where a child remains in foster care in

the temporary custody of the court

following the initial hearing provided

by Section 19, the court may make a

final determination and order placing

the child in the permanent custody of

the court, if it finds any of the

following:

zeke

(e) The parent or guardian is

unable to provide a fit home

for the child by reason of

neglect.

(f) The child has been in foster

care in the temporary custody

of the court on the basis of a

neglect petition for a period

of at least two years and upon

rehearing the parents fail to

establish a reasonable

probability that they will be

able to re-establish a proper

home for the child within the

following 12 months.

-.-, when the court intervenes relative

to the other children, the court cannot

just ignore that which has transpired in

the past. Perhaps if the case had

initially come to the court as the

death, the killing, that might have been

more plausible; or, you know, we all

153

want to believe that parents can't do

these things to their children. But in

this case you had a severe injury,

unexplained, cannot be caused by the

child, and then a death. That could not

have been inflicted by the child or the

other children in the family. (T 1/9/89

p 1728)

Mr. and Mrs. Amer present as ‘highly

ritualistic individuals'.Specifically,

the fact that each child is never, by

this PO's observation, without the small

Holy Koran pinned on the inside of their

tee-shirts/undershirts.On a home visit,

Mr. Amer stated that the Koran on the

children's person was absolutely

- This PO did not comment as

this information was not new to her

understanding of the Arabic culture.

(Case History 1/13/86, p 10)

Except as provided herein, the juvenile

division of the probate court shall

have:...

(b) Jurisdiction in proceedings

concerning any child under i7 years

of age found within the county

(1) Whose parent or other person

legally responsible for the care

and maintenance of such child, when

able to do so, neglects or refuses

medical, surgical or other care

necessary for his health, morals or

well being,...or who is otherwise

without proper custody or

guardianship; or

(2) Whose home or environment, by

reason of neglect, cruelty,

drunkenness, criminality or

depravity on the part of a parent,

guardian or other custodia, is an

unfit place for such child to live

SR, ccs

154

Dr.

The court in all cases involving custody

shall state in the order for disposition

or any supplemental order of disposition

whether the child is placed in the

temporary or permanent custody of the

court.

The relevant presentation is that of

blunt injury to the head, to be

described below. There is also a small

bruise noted on the left cheek. The

scalp, forehead, face, neck, trunk and

extremities show no evidence of other

pas t) Sian eatin ol

The remainder of the external

examination is without special note.

DESCRIPTION OF INJURIES. HEAD There is a

contusion over the occipital region of

the head. Examination of the skull

reveals a stellate fracture radiating

from the occipital area into the left

posterior cranial fossa and into the

occipital bone to the right parietal

bone of the skull. There is contusion

with subarachnoid hemorrhage of the

cerebellum, tip of the occipital lobe

and also contusion of the inferior

surface of both frontal lobes of the

brain. Minimal subjural hematoma is also

noted covering both frontal lobes.

INTERNAL EXAMINATION...HEAD The scalp

and skull are incised and retracted; the

brain is removed. The scalp, skull,

meninges and brain show no evidence of

trauma or significant pathological

changes on transections. Trauma changes

are restricted to those previous

described.

Sawait Kanluen testified as follows:

Q. (By Mr. Goldberg, continuing):

You keep mentioning two

to three story building

that would have to be

generating the type of

155

speed if in fact you had

that type of speed. If

there was a fall either

into the bathtub or

hitting the wall wouldn't

you expect to see some

other injuries other than

to the skull?

Yes, if you had fell from

that type of height I

would see some other

injury. Not only one

impact on the head. That

is correct, you are right

Did you see any other

injuries ?

No, I did not.

Did that surprise you?

No, I keep saying two or

three stories to give a

comparison of the speed.

If the child was going at

this type of speed that

you're describing; the

speed that one might fall

from a two or three story

building or a child might

fall and that's the type

of speed that was

generated, at least in

your opinion to create

this skull fracture,

would you expect to see

other injuries?

Yes, I do expect to see

some other type of

injury.

You did not see any in

this case ?

I did not see any in this

case. (T 9/10/86 104-

105)

The reason the Court is not returning to

the parents at this time is because the

156

10.

11.

deceased child was an abuse ward at a

very young age with multiple broken

bones in various stages. So, the Court

is extremely concerned. It's my ultimate

objective to return the children to the

parents as quickly as possible with the

caveat that those children remain safe."

(T 12/15/86 p 4).

The parents are to attend counselling

and parenting classes. The parents are

individual therapy. (Appendix F)

So as long as these parents continue to

believe that this death was accidental

we're going to have a problem about

returning these children to those

parents. And as long as the therapist

that they work with continue to

reinforce that, these parents are going

to not succeed in achieving return of

their children. (T 5/29/87 p. 554-557)

THE COURT: .....Now, the point is that

one of those two people killed a child.

One of them is a killer, the other one

is a cover-upper for a killer. Now,

this kid, if you read the autopsy, I

mean was literally slammed against the

wall. This kid did not drown in a bath

tub. He didn't just drop dead. You know,

something -- somebody -- and these other

kids didn't do it. Some adult did

something to that kid.

Now, part of the problem here is that we

can't get the parents to admit that,

that somebody killed this child. One of

them killed this child and the other is

either covering up for that or can't

believe that the other could do it.

157

kek

THE COURT: But at any rate, I am going to

deny your motion.

(T 1/12/88, p. 19-31)

12. When the case went to hearing on the

permanent custody petition, the issue

was not (sic) whether the death of the

child established the parents’

continuing lack of fitness, but rather

whether the efforts made to rehabilitate

the family had been sufficiently

successful to render the home safe for

the children.

i3. @. So at least at that time

in February you heard

Mohammed Ali tell his

father he wanted to come

home with him?

A. Yes.

Q. In that same evaluation, at

that time was Mrs. Amer

holding Mohammed Ali?

A. Certainly during part of

it, yes.

(T 10/18/88 878-9)

Q. I take it from your

testimony--and is this a

correct observation--that

the question of whether

to terminate parental

rights to these children

is a very close question.

Is that right?

A. Yes. (T 10/18/88 879 )

14. -Q. (By Mr. Baum, continuing) : Doctor

you don't have an opinion to a

158

iS.

16.

reasonable medical certainty that

from the point of view of these

parents their parental rights

should be terminated, do you?

A. I think as I noted, the

other option would be to

see what happened if they

had longer supervised

visits to see what would

occur.

Q. Would it be appropriate,

for example, Doctor, to

have them have

incremental visits in

their home supervised...

A. Ya. (T 12/16/88 at 1622)

RECOMMENDATIONS :

I recommend that we work at

reuniting the family with intensive

therapy. It is very important that

we take into consideration the

culture, language and religion of

the Amer family. I recommend that

the children begin to be taught

their language and begin to learn

about the culture and religion. I

also recommend that the needs of

the Amer family could be best

served in a program such as ACCESS

which is geared towards working

with Arabic families, Lebanese

families, which is sensitive to

their needs." (Children's Hospital

Report at 9)

-ee.--psychiatric department. (T 12/16/88

Exhibit 14 at 8-9)

Mohammed Ali is an Arabic Child

placed in a white foster home. He

is placed with his sister Suehier.

159

17.

18.

Projected length of stay is nine

months, with the next placement

dependent on the outcome of the

mother's murder trial. (Updated

Service Plan 6/30/86, page 3)

Long _ Range Goal

A permanency plan will be developed

dependent upon the outcome of the

second degree murder trial

involving the parents, which is

currently scheduled to begin on

August 7, 1886. (Updated Service

Plan 6/30/86 1986 page 6) (a-12)

As of 6/30/86, the Updated Service Plan

of the Judson Center stated its Long

Range Goal as follows:

A permanency plan will be developed

dependent upon the outcome of the second

degree murder trial involving the

parents, which is currently scheduled to

begin on August 7, 1986.

The same Plan specified as an Objective:

A As per the parent agency

agreement, the parents will

continue to receive counseling from

the Arab Community Center on an

ongoing basis. (Updated Service

Plan,6/30/86 at 6)

5. To attend counseling to

acknowledge and accept.

responsibility for the

severe abuse inflicted on

Samier Amer, now

deceased. (Appendix L).

This parent-agency agreement was

developed following disposition and

findings of fact of the court, in

conjunction with the court's orders and

expectations and what the Department and

Judson Center felt needed to be done in

160

19. Q.

(6/16/88

20. Q.

21.

order to think about returning the

children. (T 10/18/88 at 928-929).

In other words, if their

therapist(Dr. Epstein) were to come

to court and say experientially I

believe they have acknowledged

that, although they have not

verbalized that, and they have

successfully dealt with the

underlying mechanisms that I was

just mentioning before, would that

satisfy your requirement as a

social worker?

My requirement as a social worker

through Judson Center was based on

the court findings and a court

order and compliance with the

Department of Social Services as

well. And I don't know that I can

answer your question.

403)

Well, why shoudn't they be returned

home with regard to Mrs. Amer ?...

I have to combine the whole

Clinical picture. Okay. Because she

experiences loss and separation,

that's traumatic for her. She

already has a psychological pre-

disposition, if you will-- Mr, Derr

can testify further-- to anxiety.

Okay? That combines. Right now I

believe how she experiences

Mohammed Ali's behavior is

rejection. All right? Over the

long run, I think that would be

very difficult for her to deal

with. (T.647)

Because that was exactly what we felt

the court order wanted the parents to

do, and besides that the Department and

Judson Center felt the parents needed to

do it....Abuse has been an issue since

161

22.

23.

24.

25.

the beginning of this case when Samier

first came into care; it's never been

dealt with. (T. $30)

Because abuse is an issue. No matter how

many times we have to say this or try

and get around it, it's always been

abuse, and it will be until it's over

with (T.933)

Because I still have not seen evidence

that any type of abuse or failure to

protect has been acknowledged by either

one of these parents, and I believe it

has been too long. The children deserve

a permanent home and some ending to this

foster care situation that they're in.

(T. 942)

Well, Mohammed has indicated-- He

indicates that, you know, his feelings

for his parents. He loves his father. He

indicates that he kind of-- He doesn't

know how he feels for his mother.

Anytime I try and determine or to see if

he expresses some love in terms of his

mother, he kinds of refrains from that.

The only thing that he has really-- He

misses her. He misses her, which is

normal for a child being away from his

normal parents. But then Mohammed has

during sessions also indicated that he's

very much afraid of her.

(T.1202).

The conditions that led to the

adjudication (by a preponderance of the

evidence) continue to exist and there is

no reasonable likelihood that the

conditions will be rectified within a

reasonable time considering the age of

the child." MCL 712A.19(b) (c) (i);

Other conditions exist that cause the

child to come within the jurisdiction of

the court, the parent has received

to rectify those

conditions have not been

recommendations

conditions, the

-—

’

26.

27.

rectified by the parent..., and there is

no reasonable likelihood that the

conditions will be rectified within a

reasonable time considering the age of

the child. (c) (ii);

The 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

age of the child. (d).

The fundamental liberty interest of

natural parents in the care, custody,

and management of their child does not

evaporate simply because they have not

been model parents or have lost

temporary custody of their child to the

state. Even when blood relationships

are strained, parents retain a vital

interest in preventing the irretrievable

destruction of their family life. If

anything, persons faced with forced

dissolution of their parental rights

have a more critical need for procedural

protections than do those resisting

state intervention into ongoing family

affairs. When the state moves to

destroy weakened familial bonds, it must

provide the parents with fundamentally

fair procedures.

In Santosky, we described the parent's

desire for, and right to, the

companionship, care, and custody of his

or her children as "an interest far more

precious than any property right.

x «kek

Second, .. . [t]he contestants ina

termination proceeding are the state and

individual. Because the state has

superior resources, and because an

adverse ruling in a criminal, civil

163

28.

29.

commitment, or termination proceeding

has especially severe consequences for

the individual affected, it is

appropriate for society to impose upon

itself a disproportionate share of the

risk of error in such proceedings.

--- the probate court did not terminate

respondents' rights solely because they

failed to comply with the treatment

plan. The physical abuse and death of

Samier was clear and convincing evidence

of neglect sufficient enough to

terminate the parents' custody rights in

the absence of any proof that this

behavior would not occur again." Court

of Appeals Opinion, page 5-6.

The touchstone of the Fifth Amendment is

compulsion, and direct economic

sanctions and imprisonment are not the

only penalties capable of forcing a

self-incrimination which the amendment

forbids.

Id at 806.

164

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