# Appendix — Amer v. Department of Social Services > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1655%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 499 U.S. 970 ## Text Supreme Court of the United States October 1990 Term REHAB AMER and AHMED AMER, Petitioners 7. 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 M. N. 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, rrr Te ee TT Te eee eT Excerpts from Criminal Trial..... Litigation Chronology............ Indented Quoted Material......... 16 48 51 73 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 a 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 ee 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 10 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 1i 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 12 ee 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 13 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, 14 | 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. 15 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 16 ee 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 17 re 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 18 a ae 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 19 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 20 ——— Oo 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 21 ae pene een en 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 22 a 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 23 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 24 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 25 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 26 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 27 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 28 ee ae, ee ee ee ER 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 29 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. 30 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 31 a 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 32 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, 33 a 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 34 | 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 35 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,. 36 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 37 inner vs isaeoimn ee 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 38 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 39 ~~ iti hin i i eS ie ee 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 40 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 41 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. 42 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 43 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 44 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 45 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 46 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.) 47 ee 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) 48 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) 49 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 50 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 51 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, 52 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 53 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, 54 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 55 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. 56 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 57 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. 58 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 59 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. 60 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 61 | 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 62 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 63 lh 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 64 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 65 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. 66 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 67 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. 68 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. 70 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 71 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. ) 72 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 73 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 74 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 75 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? 76 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. 77 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 78 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 79 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. 81 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. 82 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 83 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 84 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 ) 85 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 86 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 87 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 88 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 a 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 89 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 90 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 91 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 92 . 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 93 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 94 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 95 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 96 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 97 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 98 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