Petition for Writ of Certiorari — Eilender v. Michigan Department of Human Services
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Suma Cot US.
09-639 NOV 27 2000
No. OFFICE OF THE CLERK
wee
IN THE
Supreme Court of the Gnited States
DAVID EILENDER,
Petitioner,
U.
DEPARTMENT OF HUMAN SERVICES OF
THE STATE OF MICHIGAN,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO
THE MICHIGAN COURT OF APPEALS
PETITION FOR WRIT OF CERTIORARI
MARTHA A FIELD
Counsel of Record
1575 Massachusetts Avenue
Cambmndge, Massachusetts 02138
(617) 495-2962
Dated November 27, 2009
oP ROUEN Re VaR AD EOP I 8 > oe men : ee RCA CA LERER ICE
HATEMAN & SLADE, INC ROYTUOR. MASSACHL. SETTS
QUESTIONS PRESENTED
This case questions the constitutionality of
Michigan’s procedures for terminating parental
rights Michigan’s termination hearing does require
“clear and convincing evidence” to support a ground
for termination, in accordance with this Court’s
decision in Santosky v. Kramer, 455 U.S 745 (1981)
At the same time, however, Michigan exempts the
termination hearing from its usual rules of evidence
and permits the final termination decision to be
based on hearsay and otherwise inadmissible
evidence MI Rules MCR 3.973(E) The petitioner
has had his parental rights terminated in such a
hearing Moreover, he has, over his objection, been
tried jointly with his ex-wife, increasing the hearsay
and also allowing in much other evidence that was
irrelevant but prejudicial to him.
Two questions are thereby presented
1 Can a State Refuse to Apply the Fourteenth
Amendment's Right to Confrontation to Its
Child Protection Proceedings to Terminate
Parental Rights, Even When Only Adult
Witnesses Are Involved?
2 Did the Family Court Deprive the Petitioner
of Due Process When It Refused to Sever the
Petitioner's Trial for Termination of Ifis
Parental Rights from That of His Ex-Wife who
had, among other things, been Convicted for
Perjured Testimony Against Him?
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TABLE OF CONTENTS
QUESTIONS PRESENTED .. .
TABLE OF AUTHORITIES __..........
COP LINGGAINID BOEBAAI AF « cessnises <u) sau nespensens
JURISDICTION... a... eee . tecaemaen
STATUTES INVOLVED. « « scsesnes se oo seees
STATEMENT OF THE CASE
REASONS FOR GRANTING THE WRIT
I
IT.
This Court Should Grant Review
to Clanfy That In A Parental
Termination Proceeding, The
Admission Of Hearsay Evidence
And The Denial of Confrontation
Rights Is A Violation Of The Due
Process Clause Of The
Fourteenth Amendment. .
Granting Review Would Also
Allow This Court To Emphasize
That Due Process Mandates
Severance Of Termination
Proceedings When, As In This
Case, the Parents Are
teeter
Adversaries And a Denial of
Severance Will Unfairly Expose
One Parent to Damaging
Evidence Relevant Only To The
Fitness Of The Other. __.......
AV
10
.. 16
CAOINGRAIIENIIN cvasecesscsese s 5 a eamend een
APPENDICES
A Michigan Family Court Decision
Terminating Parental Rights
B Michigan Family Court Decision
Pertaining to the Best Interests
ofthe Children. _......
C Michigan Family Court Order
Terminating Parental Rights
D Michigan Court of Appeals,
Unpublished Opinion .... ...
E. Order of the Michigan Court of
Appeals........ 5 Sareea
F. Statutory Provisions and
Michigan Court Rules ...........
la
104a
124a
129a
.. 146a
147a
Vv
TABLE OF AUTHORITIES
CASES:
Inre AJ , 553 N.W.2d 909 (Iowa Ct App.1996).. 15
InreC R , 646 N W 2d 506 (Mich Ct.App 2001). . 3
Crawford v. Washington, 541 US. 36 (2004) _...... 14
In re Gilliam, 613 N W 2d 748
CREC.CAE Bie BG). c cicseces ces aneavanseens 3,13
Inre JG, 699 N.E 2d 167 (1111998)... | a. 15
In re Interest of J S., 417 N W 2d 147
(Neb. 1987) . ..rscr0000 UP a uunaens sir) sansasonsnale 15
Kotteakos v United States, 328 U.S. 750 (1946)... . 17
Lassiter v Dept. of Soc Servs ,
ee BTUs SUPER © pcinnccidics.. . “sanicecvens aa ae
MLB vu S.4.J0 ,619 US 102 (1996)... .......:. 10, 11
Pointer v Texas, 380 U.S. 400 (1965).. s aivaaa 14
Santosky vu Kramer, 455 US 7465 (1981)
sons Swen ae «wee ag a ee
In re Snyder, 566 N.W.2d 18 (Mich Ct.App 1997).... 3
Ex parte State Dep’t of Human Res ,
890 So.2d 114 (Ala 2004) ........... Sanaa 15
Troxel v Granville, 530 US 57 (2000) ..... ee 5
vl
Williamson v United States,
§12 U.S.694(1994). .. =rauevre 14
Zafirov United States, 506 US 534 (1993) ..... 16, 17
STATUTES AND RULES:
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M.C L. 712A 19 a re ee Tey
MCL § 712A 1O(DMCNI)........ccscecceeee Fe ener 2
MCL § 712A 19(b)(3)(g).............. Se, Polen ra 2
Bes CRA ROUT) «5 st sb essesevecceeses ¢ oe a
Pe eo PMR RD 5 5K nse cencvesenes ae a
Ces Ge | . ere a ea, 1
a asada iedenes 1
ts an or eV ceaumanueslat ak. (e 1
MCR 3971..... et ea ie ae
MERC 39736.......:. PA gg eae ben eee res tnd 1
MCR SOTB(E). .. ......cccsccesseees ren cer 1
ee eo ) 4) ) rere ar 3
MCR 3.973(EX2) ... aS eer , 3
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OPINIONS BELOW
The opinion of the circuit court of Oakland
County, Michigan, Family Division finding statutory
grounds to terminate the rights of both David
Eilender and his former wife, Betty Colleen Eilender
(App la) 1s umreported The decision of the same
court finding termination to be 1n the children’s best
interests 1s unreported. (App 104a). The decision of
the Michigan Court of Appeals affirming the
termination of parental mghts as to both parents 1s
unreported. (App 129a). The order of the Michigan
Supreme Court denying discretionary review of the
decision of the court of appeals is reported at 771
N W.2d 725 (Mich 2009)
JURISDICTION
The Michigan Court of Appeals decision from
which review is sought was entered on June 30, 2009
(App.129a). A timely petition to the Michigan
Supreme Court for discretionary review was denied
on September 2, 2009. (App 146a) This Court has
jurisdiction pursuant to 28 U.S.C § 1257(a) over this
petition, which is being filed within the time
permitted by 28 USC § 2101(c) and Sup. Ct R 131
STATUTES INVOLVED
The Michigan statutes and rules involved in
this case, MCLS § 712A 2(b) (2009); MCLS § 712A 19
(2009), MI Rules MCR 3.9438; MI Rules MCR 3.945,
MI Rules MCR 3.965; MI Rules MCR 3.971; MI
Rules MCR 3 973; MI Rules MCR 3 974; MI Rules
2
MCR 3 975, MI Rules MCR 3.977, are reprinted in
their entirety in Appendix F (App 147a-196a).
STATEMENT OF THE CASE
Dr. David Hilender 1s an oncologist practicing
in the State of Michigan He 1s also the father of five
children, Marvin, Charlie, Hannah, Lewis and
Lilhan, currently ages 5-15 years (App 2a-3a) At
the behest of the Department of Human Services,
Dr Ejlender’s parental rights have been terminated
in family court, the holding has been affirmed by the
Michigan Court of Appeals, and the Michigan
Supreme Court has declined review The principal
reasons given for the family court ruling were Dr.
Eilender’s Obsessive Compulsive Disorder
(hereinafter “OCD”), his failure consistently to
acknowledge it, and his tendency to blame others
rather than take personal responsibility for family
problems. {(App.9a, 9la-98a) The termination
grounds were MCL §§ 712A 19(b)(c)(1) (“The condi-
tions that led to the adjudication continue to exist
and there 1s no reasonable likehhood that the
conditions will be rectified within a reasonable time
considering the child’s age ”), 712A 19(b)(3)(g) (“The
parent, without regard to intent, fails to provide
proper care or custody for the child and there 1s no
reasonable expectation that the parent will be able
to provide proper care and custody within a
reasonable time considering the child’s age”); and
712A 19(b)(3)qj) (“There 1s a reasonable likehhood,
based on the conduct or capacity of the child’s
parent, that the child will be harmed if he or she is
returned to the home of the parent.”) (App.101a)
In Michigan a child protection case moves
from a petition for intervention, to a first trial, which
3
is termed an “adjudication,” to “disposition,” which
can last for a long time and can include many
hearings and placements of the children but which
ultimately results in family reunification or, if
necessary, termination. As Michigan has sct up its
procedure, the adjudication is in many ways the
main event The issue 1n that trial is whether the
Department of Human Services [hereinafter DHS]
can prove at least one of the grounds for termination
of parental rights that it alleges in its petition. If
that showing 1s made, the child(ren) “come within
the jurisdiction of” the family court, leaving the court
and DHS, instead of the parents, in control of the
placement of the children and provision for their
care, M.CL § 712A 2(b) The standard of proof DHS
must meet to place the children 1n the family court’s
jurisdiction is a preponderance of the evidence The
rules of evidence apply, and the evidence that
supports the decision must all be legally admissible
Jury trial is available at this stage, as is a full right
to cross examine and confront witnesses.
After the adjudication, however, the usual
rules of evidence do not apply (except with respect to
privileges) MCR. 3.973(E)(1) “All relevant and
material evidence, including oral and written
reports, may be received and may be relied on to the
extent of its probative value.” MCR. 3.973(E)(2).
The state relaxes its evidence standards in this way
only with respect to grounds of termination that the
state has already proved in the (sometimes much
earlicr) adjudication. In re CR, 646 N.W.2d 506,
514-15 (Mich.Ct App 2001), In re Gilliam, 613
N W.2d 748 (Mich Ct.App 2000); Jn re Snyder, 566
NW2d 18 (MichCt App 1997). Thus the
adjudication, although it operates under a standard
of proof of “preponderance of the evidence” operates
to take away rights to confront and cross examine
4
witnesses at the termination, which Santosky vu
Kramer has required clear and convincing evidence
to sustain.
In addition, the adjudication 1s often waived,
as it was in this case, because in return for a plea of
no contest the parent is offered immediate
reunification with his children—the ability to take
his children home. (App 4a-5a ), In cases lke Dr.
Eilender’s, then, no ground for termination was ever
proved by legally admissible evidence, even by a
preponderance of the evidence. Instead the prospect
of immediately reuniting as a family enticed both
parents to waive the adjudication and not to contest
the charges that DHS had earlier leveled against
them.
INITIAL CONTACT, REMOVAL OF
CHILDREN, AND RETURN OF THE
CHILDREN TO THE PARENTS
Dr Ejilender’s children came to the attention
of DHS when the children’s mother accidentally left
the oldest child, then ten years old, at the Salvation
Army. (App 3a) Dr Ejilender was still married to
and living with his wife and children at the time. An
employee of DHS and a policeman came to the home
to return the child and found it in “deplorable
condition,” with the result that all the children were
immediately taken into protective custody (App 3a)
They remained in protective custody for more than
two months, while the father spent a great deal of
time, effort, and money in improving the home to
prepare it for the children’s return ‘The work
involved endless hours of clearing, cleaning, and
repairing When social workers saw it in July, they
said he had performed “miracles” and that the
5
changes that had occurred were “remarkable.”
(App 4a). They recommended that the children be
returned to live there, upon the parents’ signing a no
contest order to the charges against them that
otherwise would be tried in an “adjudication.” The
no contest order, like a finding against parents at an
adjudication, left the children “under the jurisdiction
of? DHS until further services’ were provided and
further decisions were made. On July 29, 2005, both
parents waived their rights to an adjudication, and
all the children returned home to both parents.
(App.5a).
SEPARATION OF PARENTS AND LATER
REMOVAL OF CHILDREN
Just over two months later, however, Dr.
Ei1lender moved out of the family home because of
problems between him and his wife (App 14a). He
maintained regular visits with all of the children
outside the home. Less than five months later, on
February 23, 2006, the children were removed from
the home when the mother proved incapable of
taking care of them, made a suicide attempt, and
was hospitalized. (App 28a, 33a, 35a). The mother
later explained that she had purposely overdosed on
her medication, knowing the social worker was
coming, in order to have the children taken into
protective custody “for their own good” (App.34a)
' The family received services through Easter Seals,
Famihes First, Wrap Around Services, other in home services,
and family reunification services The father further received
individual therapy through Oakland Family Services, and
anger management classes through the CHOICES program
(App 24a)
6
During the few months that the mother alone
had cared for the children there had been eleven
reports to child services (App.27a), and the mother
had to call the police on more than one occasion just
to get the children off to school. (App.30a)
Since the second removal, all of the children
have remained in foster placements. In the
meantime, diverce proceedings were commenced in
March, 2006 Because the mother was hospitalized,
Dr. Eilender was permitted to return to the family
home. He also cooperated with various parenting
and anger management classes that the family court
prescribed for him as a means to carn reunification
with his children. (App.36a)
In April, 2006 the family began court-ordered
therapy with Dr. Tracy Stulberg, whose testimony
was ultimately central to the trial court’s findings
against Dr Eilender. Doctors Stulberg and E:lender
quickly developed a hostile relationship. Dr.
Eilender did not believe in or cooperate with Dr.
Stulberg’s methods, and Dr. Stulberg faulted Dr
Eilender for not being willing to take responsibility
for his role 1n the family problems The hostility was
exacerbated in June when Dr Eilender filed a
HIPPA complaint against the therapist. (App.59a)
By October 2006, Dr Stulberg had convinced the
court that the children’s reunification with Dr.
Filender would not be possible and that he could not
improve, largely because he did not take
responsibility for his own actions. (App 48a)
TERMINATION PROCEEDINGS
In January 2007, the Department commenced
proceedings to terminate the rights of both parents
The grounds for termination were the same as those
7
to which they had pleaded no contest eighteen
months earlier, so Michigan’s rules of evidence did
not apply to protect either of them during the
hearing On March 2, 2007, Dr E:lender sought to
withdraw his no contest plea of July, 2005, but his
motion was denied (App.51la) Still, Dr Eilender
continued to protest the voluntariness of his waiver
of the initial adjudication, the central event in
Michigan’s child protection procedure, at which he
would have had the right to a jury trial, the nght to
full cross examination, and the right to a decision
based upon legally admissible evidence, albeit one
supported by only a preponderance of the evidence
On August 27, 2007, Dr Eilender sought to
sever his termination of rights trial from that of his
ex-wife At this point, he and his wife were in the
midst of a divorce and were on very hostile terms.
Dr. Ejilender’s ex-wife openly admitted that she
intended to prevent Dr. Eilender from maintaining
his parental rights. She had been convicted both of
perjury and of filing false police reports in attempts
to accomplish that goal, offenses for which she had
served time in jail. (App.74a, 108a) Moreover,
maintaining a joint trial meant that the judge
making the determination with respect to Dr.
Eilender would be exposed to much damaging
evidence that was relevant only to his ex-wife.
Nonetheless, the motion was demed (App 132a)
Dunng the proceedings, Dr. Enlender
repeatedly sought to protect the integrity of the
evidence against him and to assert his rights to
confront his accusers. In particular, he sought to
cross-examine for bias a principal witness against
him, Dr. Stulberg, the psychologist assigned to the
family for therapy When Dr. Ejilender’s attorney
attempted to cross examine Dr. Stulberg concerning
any bias she might have against his client because of
8
the HIPPA complaint filed against her, the trial
judge immediately cut off any questioning He
declined to give a ground for his ruling, and he
threatened sanctions against the attorney for
seeking to note an objection for the record. The
judge never explained his refusal to allow cross-
examination, but the court of appeals later justified
this ruling of the tnal court by saying that no nght
to confrontation was applicable in child protection
proceedings in Michigan (App.133a) That court
also justified the trial court’s ruling on the ground
that the tnal judge already knew about the HIPPA
complaint. (App.134a) Even so, the judge was not
aware of the animosity against Dr Eilender that his
counsel] had intended to expose on cross examination
and to reveal as the basis for her damaging
testimony against the petitioner
Dr Stulberg’s testimony, not subjected to the
testing of cross-examination, was both extremely
damaging to Dr. Eilender and persuasive to the
judge (App 5Ga) Less than six months into family
therapy, Dr Stulberg testified that the father had
“gone about as far as he 1s going to go in being able
to deal with the issues that brought this matter to
the Court,” because his refusal to take responsibility
precluded him from making progress (App 48a)
The judge accepted the “opinion of Dr Stulberg that
without father’s acknowledgment of how his conduct
contributed to or otherwise caused the children to
come into care, the chance for recidivism remains
great.” (App 58a) This finding was essential to the
court’s rejection of Dr Eilender as a parent. The
judge repeatedly indicated that Dr Stulberg was a
very influential witness In his opinion he found
neither of the parents “to be particularly credibie In
juxtaposition, the Court found the testimony of Dr
Gonzales, Sydney Smith, Jinelle Manchester, Ms.
9
McCauley, Ms. Romeo-Perez, Marianne Barley, Mr
MacIntosh, Michael Miner and (particularly) Dr
Stulberg to be eminently more believable, persua-
sive, candid and credible.” (App 50a).
As a result of the termination hearing, on May
8, 2008, the court ruled that there was clear and
convincing proof of at least one ground for
termination, as there had been at the time of
adjudication, and that it was therefore mandatory
under Michigan law to terminate both parents’
nights, unless that disposition was shown not to be 1n
children’s best interests. (App 101la). Jn a separate
best interests hearing on August 29, 2008, the same
judge ruled that the interests of the children favored
termination. (App 121a-122a). The order terminating
parental nghts was issued on September 15, 2008
(App.124a)
APPELLATE PROCEEDINGS
Through his attorney, Dr HEilender filed a
timely appeal in the Michigan Court of Appeals,
objecting, inter alia, to the involuntariness of his
July 2005 waiver of rights, the inability to cross
examine Dr Stulberg for bias, and the joinder of his
trial with that of his ex-wife When the court
affirmed the ruling of the tnal court, Dr Ejilender
sought timely review of the same tissues in the
Supreme Court of Michigan Review was denied on
September 2, 2009. (App.146a). Review in the
Michigan courts pertained to both parents, but this
petition concerns only the termination of Dr
Eilender’s parental mghts
10
REASONS FOR GRANTING THE WRIT
This Court should grant review in this case
because a Michigan state court has decided an
important question of federal law in a way that
conflicts with this Court’s developing precedents
governing procedures that Due Process requires at
hearings to terminate parental mghts. This Court,
in a series of cases, M.L.B vu SLJ, 519 US, 102,
116 (1996) (collecting cases), has recognized that
heightened procedural requirements are necessary
in parental termination hearings. Nonetheless
Michigan has adopted a more relaxed evidentiary
standard in termination proceedings than it allows
in standard civil trials Exacerbating this Due
Process violation, the Michigan court also denied
severance of the parents’ hearing, inevitably
exposing Dr. E1lender to damaging hearsay evidence
that was relevant only to his ex-wife This Court
should avail itself of the opportunity this case
presents to clanfy the procedural requirements that
are constitutionally necessary before a court may
deprive a parent of all rights to have any contact
with his children
| 8 This Court Should Grant Review To
Clarify That In A Parental Termination
Proceeding, The Admission Of Hearsay
Evidence And The Denial Of
Confrontation Rights Is A Violation Of
The Due Process Clause Of The
Fourteenth Amendment.
Santosky v Kramer’s requirement of “clear
and convincing” proof for termination of parcntal
nights suggests that, as well as being convincing, the
11
evidence must also be legally admissible and must
be presented at a hearing in which the parent whose
rights are in question has the opportunity to
confront and cross-examine his accusers
“The liberty interest at issue in this case -- the
interest of parents in the care, custody, and control
of their children -- is perhaps the oldest of the
fundamental liberty interests recognized by this
Court” Troxel v Granville, 5830 US 57, 65 (2000)
A final order of termination permanently and
irrevocably extinguishes all legal obligations and
rights a natural parent has with respect to the
children who are subject to the order It eradicates
any rights a parent may have to be consulted about
matters concerning the child’s welfare, to visit the
child, to have any contact with the child, or to be
informed of the child’s whereabouts. Because the
sanction of forever losing one’s child 1s so severe, this
Court has recognized that the Constitution
mandates strict procedural safeguards in
termination cases In Lassiter v Dept. of Soc.
Servs , 452 US. 18 (1981) the Court found that Due
Process sometimes requires the appointment of
counsel for parents facing termination of their
parental rights. Id at 31-32 The Court next found
that Due Process requires a heightened standard of
proof in termination proceedings Because a mere
preponderance standard offered constitutionally
deficient protection to the parent-child relationship,
a “clear and convincing” standard was mandated by
Due Process Santosky v Kramer, 455 U.S 745, 758
(1982). Most recently, the Court has recognized that
indigent parents must be given the opportunity to
exercise an appeal as of mght arising from
termination judgments ML.B vu SLJ,519US
102, 128 (1996).
12
The Michigan court’s statement that there 1s
no right to confrontation in child protection
proceedings,” (App133a) accurately describes
Michigan’s statutory termination procedures
Despite objections made in this and other cases, the
Michigan courts have left untouched Michigan’s
basic rules that permit hearsay evidence to be freely
introduced into the proceedings and that deny
parents Due Process mghts to confront their
accusers These procedures are in severe tension
with this Court’s statement that “[w]hen the State
moves to destroy weakened familial bonds, it must
provide the parents with fundamentally far
procedures.” Santosky v. Kramer, 455 US 745, 753-
754 (1982).
Under MI Rule MCR 3971, Michigan does
require that the evidence used in an “adjudication” —
the proceeding under which a child may be placed
under the court’s jurisdiction—be legally admissible
However, once a child comes under the court’s
jurisdiction, the court may examine “faJll relevant
and material evidence. to the extent of its probative
value” to terminate permanently parental nghts. It
may do so as long as the grounds for termination are
the same as the grounds used to place the child
under the court’s jurisdiction, whether that was done
at an adjudication or whether adjudication was
waived, as in this case, in order to accomplish
immediate return of the children to the family home
Because of these procedures, the grounds for
termination of Dr Enlender’s parenthood were never
proved by legally admissible evidence
These procedures are particularly problematic
because this Court has specifically held that
parental rights may only be terminated if there is
“clear and convincing” evidence to support that
termination Santosky, 455 US at 748 Mhchigan
“
13
seeks to adhere only to the letter of the holding,
while relaxing its evidentiary requirements to
violate the spirit of the Court’s ruling Much of the
“clear and convincing” evidence used to terminate
Dr FEnilender’s rights would have been legally
inadmissible in a civil trial, because Dr Enlender
was denied the opportunity for confrontation. And
even if Dr Eilender had not waived his nght to the
initial adjudication, hearsay evidence could still have
been critical in meeting the “clear and convincing”
standard At the initial adjudication, the state need
only establish its case by a “preponderance of the
evidence.” Thus, the termination proceeding—in
which hearsay is permitted -- 1s the only one in
which the Santosky “clear and convincing” evidence
standard apphes.
One Michigan judge, noticing the
contradiction in the state’s child protection
procedures, has argued that nghts to confrontation
should apply at termination, even to grounds earlier
established by a preponderance of the evidence: “It
seems inconsistent for the statute to require that
petitioner show by clear and convincing evidence
that termination 1s justified, while the rules allow
the use of legally inadmissible and, thus, potentially
unreliable evidence to satisfy this standard. The
evidentiary rules should not undermine the
procedural] protections afforded by the statutel‘s and
the US Constitution’s requirement of clear and
convincing evidence]” In re Gilliam, 613 N W 2d
748, 752 (2000)(Bandstra, CJ, concurring) His
admonition was not accepted by his brethren.
This Court has long recognized that the
admission of hearsay evidence represents a
substantial threat to the integrity of fact-finding in
judicial proceedings “(P]robably no one, certainly no
one experienced in the tral of lawsuits, would deny
14
the value of cross-examination in exposing falsehood
and bringing out the truth.” Pointer v. Texas, 380
U S. 400, 404 (1965) As explained in Williamson v.
United States, the hearsay rule “is premised on the
theory that out of court statements are subject to
particular hazards The declarant might be lying, he
might have musperceived the events which he
relates, he might have faulty memory, his words
might be misunderstood or taken out of context by
the listener” 512 U.S. 594, 598 (1994). For this
reason, “[t]here are few subjects, perhaps, upon
which this Court and other courts have been more
nearly unanimous than 1n their expressions of belief
that the mght of confrontation and _ cross-
examination is an essential and fundamental
requirement for the kind of fair trial which is this
country’s constitutional goal.” Pointer v. Texas, 380
U.S. 400, 405 (1965). As this Court has said in
another context, “Dispensing with confrontation
because testimony is obviously reliable 1s akin to
dispensing with jury trial because a defendant is
obviously guilty ” Crawford v Washington, 541 U.S.
36, 62, (2004)
Michigan’s decision to dispense with these
rights in a proceeding that deprives parents of the
ability even to have contact with their biological
children represents an unconstitutional denial of the
Due Process mghts guaranteed by the Fourteenth
Amendment
Because this problem is embedded in
Michigan’s child protection statutes and rules, it
affects many parents in that state whose parenting
is being questioned Nor is the problem unique to
Michigan Other states diverge widely with respect
to the evidentiary requirements at proceedings to
terminate parental rights Many states, recognizing
the importance of the rights at stake in such
15
proceedings, mandate that evidence must be
admissible under the civil rules, making hearsay
unacceptable. See, eg., Ex parte State Dep't of
Human Res , 890 So.2d 114, 117 (Ala. 2004)
(holding that “hearsay evidence is not considered
competent evidence in an adjudicatory proceeding”),
InreJ G , 699 N.E.2d 167, 175-76 (111.1998) (holding
that the civil rules of evidence must apply in
termination hearings). Some states, however, adopt
an approach similar to that of Michigan, relaxing
evidentiary requirements and denying parents’
confrontation nghts. See,eg.,InreAJ ,553 N W.2d
909, 916 (Iowa Ct. App 1996) (finding that hearsay
evidence may be admitted as long as it 1s relevant
and not unduly prejudicial) The state of Nebraska’s
approach is illustrative of the confusion surrounding
the issue. The Nebraska Supreme Court found that
the rules of evidence do not apply in termination
proceedings, but it simultaneously held, citing
Santosky, that constitutional Due Process mghts
dictate that hearsay evidence may not be admitted
when it interferes with a parent’s right of cross-
examination. See In re Interest of JS, 417 N.W 2d
147, 155-157 (Neb 1987).
Because of the importance of the rights
involved to many persons, and because of the
confusion that reigns 1n many states concerning
acceptable procedures in parental termination
proceedings, this Court should take the opportunity
to clanfy what rules Due Process requires before a
court irrevocably terminates all parental rights to be
with their children
16
Il. Granting Review Would Also Allow This
Court To Emphasize That Due Process
Requires Severance Of Termination
Proceedings When, As In This Case, The
Parents Are Adversaries And A Denial of
Severance Will Unfairly Expose One
Parent To Damaging Evidence Relevant
Only To The Fitness Of The Other.
The trial judge exacerbated the unreliability
of the fact-finding process at the termination hearing
when he refused to separate the trial of Dr Exlender
from that of his former wife Without a severance,
both the quality and the quantity of the hearsay
evidence were such that a reliable fact-finding
process could not take place Granting review of this
case will provide the Court with an opportunity to
elucidate the standard for severance in termination
proceedings
The issue of severing trials of co-defendants is
raised most frequently, although not exclusively, in
criminal prosecutions. A judge may deny a motion
for severance unless the petitioner shows a
substantial msk of prejudice and an inability to
receive a fair trial if severance 1s not granted. See,
eg, Zafiro v. United States, 506 US 5384, 539 (1993)
(“Such a risk mght occur when evidence that the
jury should not consider against a defendant and
that would not be admissible if a defendant were
tried alone is admitted against a codefendant ”) This
case rises to that very strict standard.
In moving for severance, Dr. Eilender
observed that a number of witnesses appearing in
his ex-wife's case were both irrelevant and
potentially prejudicial to Dr Ejilender, even though
they might be relevant to termination for his former
spouse TR 8/27/2007, p 19. He also was barraged
17
by even more hearsay than Michigan’s rules would
have allowed if he had been able to have his own
proceeding, unsavory and distracting material that
had nothing to do with Dr LEilender flooded the
proceeding in which he was to lose all mghts to care
for or to have contact with any of his children
The trial court did not manage to differentiate
between the two cases and which witness was for
whom. It often cited testimony offered in the
mother’s case, e.g, Michael Miner, Exhibit 1, p 14,
against Dr. Eilender in its opinions Given the
weight and severity of evidence introduced against
the mother, there was a risk to Dr. Eilender of the
transference of guilt comparable to that we see in
criminal conspiracy cases. Zafiro, 506 U.S. at 539,
Cf Kotteakos v United States, 328 U.S. 750, 776
(1946) But it was highly inappropriate on the facts
of this case to treat Dr Eilender and his ex-wife as if
they were partners, instead of granting separate
trials to evaluate their substantially different
prospects for reumiting with their children. Dr.
Eilender and his ex-wife had very different problems
as parents. By the time of the termination, they
were offering separate homes, they were divorced,
and they needed to be evaluated separately before
being forever deprived of their children.
Indeed, when Dr Ejilender moved for separate
trials, he noted, through his counsel, that both the
goals and defenses of the co-defendants were
antagonistic Dr. Eilender was very anxious to make
a home for his children and believed he could do so.
Iie had worked hard for several years with that goal
in mind. Dr. Eilender was attempting to show the
court that he is a fit parent and that the children
could be returned to his home. He also claimed that
his ex-wife was primarily to blame for the problems
they had had in their mutual home, during a period
18
when both were there and before the children were
removed,
These goals and defenses were undermined by
his ex-wife’s repeated emphasis on her position that
Dr Ej:lender’s nghts should be terminated Prior to
the termination trial, the ex-wife had been convicted
of peryury for having fabricated false charges against
Dr Eilender She also had been convicted of falsely
filing a police report against Dr Ej:lender. She
served jail time on these charges. The ex-wife
explained her crimes as efforts to keep Dr Eilender
from having parenting time with the children.
(App.74a, 108a)
In fact, Dr. Eilender’s ex-wife had gone so far
as to whisper to the children dumng Dr Stulberg’s
family therapy sessions to tell the doctor that Dr.
Eilender abused them.(App73a) She told one of the
children, Lewis, that Dr. Eilender had knocked out
her wisdom teeth, when he had not. She also told
Lewis that Dr Eilender had burned her and
attempted to put her 1n the oven and that on another
occasion he had put Lewis in the oven She told him
not to tell anyone because she would get in trouble
Lewis was 7 years old at the time (App 75a-76a) The
stories were total fabrications
Given this history, it 1s unsurprising that at
times during the proceedings, the termination of Dr
Filender’s rights seemed to be his ex-wife’s primary
goal; although she did not want to lose all contact
with her children, she was often uncertain that she
would be able to care for them Dr. Eilender was
therefore forced to defend not just across the aisle,
but across his own counsel's table
Thus, Dr. Eilender’s motion for separation
demonstrated the substantial rnsk of prejudice
required to make severance mandatory As a result
of the motion’s demal, not only was Dr FEilender
ly
tainted by an even larger mountain of suspect
evidence than Michigan rules would have permitted
in an independent termination trial, but he was also
treated as the partner of a co-defendant whose object
was to undermine his defense This Court should
grant review to clanfy that demal of severance in
such extreme cases constitutes a deprivation of Due
Process rights
CONCLUSION
Michigan’s procedures for termination of
parental rights blatantly conflict with the
requirements of procedural Due Process. Further,
they directly undermine this Court’s opinion in
Santosky v Kramer This Court should grant the
petition for a writ of certiorari 1n order to clanfy for
all states and all parents facing termination
hearings what procedural protections Due Process
mandates.
Respectfully submitted,
MARTHA A FIELD
1575 Massachusetts Avenue
Cambridge, Massachusetts 02138
(617) 495-2962
November 27, 2009
APPENDIX TABLE OF CONTENTS
APPENDIX A
Opinion and Order of State of Michigan
in the Circuit Court for the
County of Oakland Family Divi-
ee oe tan aeaeenin .
APPENDIX B
Opinion and Order of State of Michigan
in the Circuit Court for the
County of Oakland Family Divi-
BAGEL cccccccccess os « Mr eerririy tt itiy
APPENDIX C
Order Terminating Parental Rights
(Child Protective Proceeding)
APPENDIX D
Unpublished Opinion of Court of Ap
peals of Michigan eae
APPENDIX E
Order of Court of Appeals of Michigan
APPENDIX F
Statutory Provisions
. 1a
. 104a
; 124a
146a
l47a
APPENDIX A
STATE OF MICHIGAN
IN THE CIRCUIT COURT
FOR THE COUNTY OF OAKLAND
FAMILY DIVISION
IN THE MATTER OF MARVIN EILENDER,
CHARLES HENRY NOAH EILENDER, HANNAH
EILEEN ROSE EILENDER, LEWIS ABRAHAM
JOSEPH EILENDER, and LILLIAN SARAH
CLARE EILENDER, Minors
2005-707874-NA
Hon. Leo Bowman
/
AMANDA SWANSON (P67654)
Assistant Oakland County
Prosecuting Attorney
1200 N. Telegraph Road
Pontiac, MI 48341
248-855-0656
BARRY FAYNE (P23634)
Counsel for Respondent, Father
19390 W Ten Mile Road
Southfield, MI 48075
248-529-3385
H ELLIOTT PARNES (P28539)
Co-Counsel for Respondent, Mother
7117 Glenburne Dr.
Clarkston, MI 48346
248-736-4955
Za
PAMELA N BEEGHLY (P36231)
Co-Counsel for Respondent, Mother
20411 W 12 Mile Road, Ste 211
Southfield, MI 48076
248-350-0006
NANCY PLASTERER (P37170)
Guardian Ad Litem for the Minor Children
6632 Telegraph Road, Ste 186
Bloomfield Hills, MI 48301
248-252-0718
PAUL BAKER (P36231)
Guardian Ad Litern for
the Respondent, Mother
2055 Orchard Lake Road
Sylvan Lake, MI 48320
248-882-2055
OPINION AND ORDER
This matter 1s before the Court on Co-Petition
of the Oakland County Prosecutor and the Depart-
ment of Human Services requesting termination of
the parental mghts of respondent father, DAVID
STUART EILENDER, and respondent mother,
BETTY COLLEEN EILENDER.
Respondents, DAVID STUART EILENDER
(hereinafter ‘“father”) and BETTY COLLEEN
EILENDER (hereinafter “mother”), are the biologi-
cal parents of five minor Eilender children, who are’
MARVIN EILENDER (d/o/b June 19, 1994),
CHARLES HENRY NOAH EILENDER (d/o/b De-
cember 29, 1995), HANNAH EILEEN ROSE
EILENDER (d/o/o June 13, 1997), LEWIS
ABRAHAM JOSEPH EILENDER (d/o/b 12/17/99),
3a
and LILLIAN SARAH CLARE EILENDER (d/o/b
November 16, 2004)
Mother is also the parent of three additional
adult children from her prior marriage These child-
ren are not the subjects of these proceedings, howev-
er, for identification purposes they are MARK
MINER (currently age 24), MICHAEL MINER (cur-
rently age 21) and EVA MINER (currently age 20).
BACKGROUND
The minor Eilender children came into protec-
tive care on or about May 20, 2005. This initially
came about because mother left one of the children
(Marvin who was then age 10) alone at the Salvation
Army. As a result of this incident, a CPS worker and
the police went to the family residence on May 20,
2005 and found the same to be 1n “deplorable condi-
tion” At that time the children were taken into pro-
tective custody and, on May 26, 2005, a Petition for
child protective proceedings was authorized in this
action
Included among the allegations contained in
the initial petition were allegations regarding the
unhealthy condition of the family’s residence, as
well as references to multiple prior domestic violence
referrals to CPS (which included allegations of do-
mestic violence by respondent father against respon-
dent mother) and a 2000 OUIL conviction against
respondent mother, during which offence she drove
with at least one of the minor children in the car
Michael Miner testified that when the child-
ren were taken into custody the condition of the
home was really bad One couldn’ t walk in the front
door of the home and there was laundry everywhere
He said you could find anything in any room of the
home, such as toys, food and laundry. At that pornt,
4a
the washer and dryer had not been 1n operating con-
dition since at least 2003 and the toilet downstairs
hadn’t worked for over a year He described the
walls as being covered with food and drawings by the
kids. The carpets were black and dirty dishes were
stacked high in the kitchen. There were holes in the
ceiling and it was no surprise to him that the child-
ren acted like animals and lacked respect when liv-
ing in such an environment.
Michael Miner further testified that there
were rooms which only respondent father was per-
mitted to have access to. These included the fifth
bedroom, the study, areas of the basement, the attic
and a tool shed He indicated that father would lock
the freezer, study and fifth bedroom. In addition to
locking the study, at tames father would also tie a
rope on the study door. Michael Miner candidly indi-
cated that the environmental neglect of the family
residence was attributable to both father and mother
and that neither could point fingers at the other re-
garding thts issue.
From May 20, 2005 until July 29, 2005, the
children remained 1n protective custody. During this
period the family made considerable progress at re-
pairing the home, including, but not limited to repair
of some of the plumbing issues, removal of filth from
the floors, removal of clutter from various areas of
the home (which filled multiple dumpsters), and oth-
er necessary repairs. Although the total removal of
clutter was not yet effectuated, promised upon the
remarkable progress that was made by the family
between May 20, 2005 and July 29, 2005, the child-
ren were returned to both parents’ care Mhichael
Miner testified that he helped his mother clean the
home, as best as he could, and that the progress that
was made during this period was nothing short of a
“muracle”.
5a
On July 29, 2005, the parents plead no contest
to the allegations contained in the initial petition
and the Court took temporary jurisdiction over the
minor Ejilender children pursuant to MCL
712A2(b)(1)&(b){2).
On July 29, 2005, Referee Hand advised the
parents that “just because the home conditions have
been alleviated, does not mean that the underlying
problems are taken care of.” At that time, a referral
was made for family reunification services, as well as
for the mother, father and most of the minor Eilend-
er children to be evaluated by the Oakland County
psychological Clinic.
At or around this time, the first Parent Agen-
cy Agreement (PAA) for this family was formulated '
In that PAA, the following goals and objectives wore
established for respondents
For mother:
Participate in a psychological evalua-
tion through the Court;
° Follow all recommendations of the
psychologist;
Answer all questions from psy-
chologist to the best of her ability,
Complete parenting class;
° Attend every class;
° Actively participate in class,
° Provide documentation of comple-
tion to the worker assigned to her
case;
° The intended outcome of mother’s
participation in these classes was
to permit mother to gain the prop-
er parenting skills to help assist
°
' People’s Exhibit 1
6a
her 1n parenting her children in an
appropriate parent/child role
* Maintain suitable housing;
° Ensure that all utilities are work-
Ing,
° Make sure that the home 1s clean
and appropriate at all times,
¢ Participate in family counseling;
° Attend each session;
° Openly discuss any family dynam-
ics with the therapist;
° Follow recommendations of the
therapist,
The intended outcome of mother’s
participation in this therapy was
for her to be able to have a home
environment safe and appropriate
for the kids.
For father:
* Participate in a psychological evalua-
tion through the Court,
° Follow all recommendations of the
psychologist;
Answer all questions from psy-
chologist to the best of his ability;
* Complete parenting class,
° Attend every class,
Actively particrpate in class,
Provide documentation of comple-
tion to the worker assigned to his
case,
° The intended outcome of father’s
participation in these classes was
to permit father to gain the proper
parenting skills to help assist him
in parenting his children in an ap-
propriate parent/child role;
0
o
°
7a
° Maintain suitable housing,
° Ensure that all utilities are work-
ing;
° Make sure that the home 1s clean
and appropriate at all times;
° Maintain a iegal source of income.
* Participate in family counseling;
° Attend each session;
° Openly discuss any family dynam-
ics with the therapist;
° Follow recommendations of the
therapist;
° The intended outcome of mother’s
participation in this therapy was
for her to be able to have a home
environment safe and appropriate
for the kids.
This PAA was adopted by Order of the Court
on or about October 18, 2005
Respondents’ respective psychological evalua-
tions, conducted pursuant to the July, 2005 order of
the court and PAA, reflected that.
° As to mother, she was found to have
had a slowing of mental and physica!
processes, which was partially attribut-
able to depression, but also suggestive
of a dependent personality disorder and
a generalized anxiety disorder She was
found to be masochistic, have a marked
dependency on others, and anxous to
seek reassurance Her history revealed
prior thoughts of suicide (in order to get
attention), a long term eating disorder
(which dated back to when she was 12),
history of being involved in abusive and
8a
controlling relationships, identity dis-
turbances and low self esteem. She was
also likely to convert stress into physi-
cal complaints, and there was evidence
that she might engage in some antiso-
cial and criminal behavior, as well as
have an inability to internalize societal
rules.
° As to father, he was found to be lacking
in insight into himself or others, hkely
suffering from Obsessive/Compulsive
personality Disorder with Narcissistic
traits, and have a tendency to show per-
fectionism that could interfere with
task completion He was found to be a
person who could be easily upset and
that deviations from his routine might
produce anxiety. It was also indicated
that he was unable to discard worn-out
or worthless objects, even when they
have no sentimental or monetary value,
and during the course of the interview
admitted that he was still storing “two
storage garages” worth of items instead
of throwing them out, even after his
hoarding problems had brought his
children into care * It was also felt that
his underlying psychological issues
* The Court notes that during the course of father’s bankruptcy
proceedings, it was discovered that father continued to main-
tain at least one such storage locker (which was J0’x30’ in size),
paying a fee of $340/month in order to do so ‘his evidences
father’s inability to balance his need to keep worthless things
with his need to provide financial support to his family During
father's testimony, he disclosed that he still maintains two sto-
rage units and that has continued to store his deceased father's
suits at the home for a considerable period of time
9a
were consistent with a person who
would be reluctant to delegate tasks or
to work with others unless they submit-
ted to exactly his way of doing things,
and to be miserly in spending toward
themselves and others, as well as being
rigid and stubborn *
During the psychological evaluations,
the children indicated that father was
quite a collector of items on EBay and
that their mother would buy things
from the Salvation Army on a regular
basis, Mr. MacIntosh, of the Oakland
County Psychological Clinic felt it was
consistent with father’s profile that he
would have difficulty in discarding
items and also that task completion
could be difficult for him as he gets
side-tracked with details that would
cause him to lose track of the main
thrust of the task
Mr. MacIntosh remarked, in his report,
that
“ijt is remarkable that
these two _ individuals
found each other and mar-
ried. Ms Enlender’s sub-
* Interestingly, Dr Muller noted that father had “rigid ego de-
fenses”, someone who might have difficulty “admitting to psy-
chological conflicts and that he may find it difficult to accept
psychological interpretations of his behavior and some of his
ngidly held attitudes”, was a sclf reported “collector” and some-
one who hkes to participate in “do-it—yourself projects” Again,
these “findings” are consistent with time diagnosis of both Mr
MacIntosh and Dr Gonzales (father’s self-selected treating
psychiatrist) of a person who suffers from an obsessive compul-
sive disorder
10a
missive personality and
low self-esteem and her
strong dependence upon
others would jead her to be
one of the only personality
styles that would tolerate
someone who 1s obsessive/
compulsive to the degree
that Dr Enlender is. There
is an old saying that ‘you
can only be walked all over
if you are willing to be a
doormat,’ and that ap-
pears to be the case with
these two individuals It is
as if their pathology was
made for one another Dr.
Eilender’s personality 1s
that of a controlling bully,
and Mrs. E:lender’s pro-
file 1s that of a submissive
martyr. This disturbed
pattern of behavior 1s like-
ly to continue unless both
of these individuals find
serious long-term counsel-
ing, and in the case of Ms
Kilendor, psychratric 1n-
tervention with psycho-
tropic medications for her
anxiety and dysthymia ”
Also contained within Mr MacIntosh’ s
report, are references to acknowledg-
ments made by each of the respondents
that the home began to fall apart when
mother’s three older children moved
lla
away to go to college, and that those
older children had primarily been the
source of stability for this family unit.’
The recommendations contained in the Sep-
tember 26, 2006 psychological evaluation, which
where then adopted by the Court, included the fol-
lowing
. That both Dr. Eilender and Ms. Eilend-
er benefit from individual counseling to
address issues regarding their mar-
riage, as well as individual issues con-
cerning aspects of their personality that
make it difficult for them to be a
healthy couple,
, That both individuals benefit from fam-
ily counseling to learn how to work to-
gether as a couple in order to raise their
children, all of which apparently have
potential,
. That continued case management be
involved with this family for a period of
time in order to be sure that a healthy
system of accomplishing tasks and of
daily living be set up and functioning in
order for this family to continue to
maintain a home in an appropriate
manner
: That Ms Ehilender benefit from contin-
ued psychiatric care, more specifically
for psychotropic intervention regarding
* Reference to this 1s also alluded to in Dr Miller's report as
time reason given by father for reports made by the stcp-
children of adverse behavior by father
12a
her symptoms of dysthymia and anxie-
ty
. That Dr. Eilender find a specialist, e1-
ther psychiatric or psychological, who
addresses Obsessive/Compulsive Perso-
nality Disorder’ and resulting behavior
patterns that make it difficult for an
individual to function on a daily basis
and that are obviously interfering with
the family’s ability to function as a
group.’
Mr MaclIntosh’s report reflected that both
mother and father reported being under the care and
treatment of a psychiatrist at the time of their re-
spective interviews and evaluations At the time of
respondents’ evaluation mother reported being un-
der the psychiatric care of a Dr. Foreman (who had
prescribed Zoloft for her); while father failed to dis-
close who he was treating with.’
’ Hereinafter referred to as “OCPD”
"It 1s evident to tms Court that father was aware of this re-
quirement in that he sought out and obtained a psychiatrist to
treat him for OCPD, a letter was written by his attorney re-
garding the need for father’s treatment with regard to this 1s-
sue, it was raised in at least one 583 referral, and acknowl-
edged as a required course of conduct during at least one
referee hearing (of October 3, 2005)
"The Court notes that dumng the course of the trial, father only
disclosed treating with Dr Gonzales for his OCPD Dr Gon-
zales began treating further for OCPD in June, 2005, but fa-
ther severed treatment with the doctor in July, 2005 after only
seven sessions. Consequently, after receiving the recommenda-
tion for treatment, father failed, refused or neglected to obtain
the same Moreover, father never provided anyone with infor-
mation regarding Dr Gonzales diagnosis or his prognosis, nor
did he supply anyone with true and accurate information re-
garding the nature or status of this treatment Therefore, 1t
appears that through his own conduct father never obtained
18a
Subsequently, an “Updated Service Plan”
PAA was formulated and adopted by the Court.* In
the “Updated” PAA added goals and requirements
for these parents, included the following
+ Participate in Domestic Violence class,
° Follow all recommendations of the
program administrators,
The intended outcome of her par-
ticipation was for her to learn
ways of escape from being abused.
For father.
* Participate in domestic violence and
anger management class;
° Attend and participate in sessions
to help him with his anger and
abuse;”
Utilize and demonstrate the cop-
ing skills that he has learned;
The intended outcome was that he
would be able to effectively com-
municate without abuse
This PAA also included required conduct of
respondents with regard to the children The Court
notes, in particular, that the discipline technique
the level of therapeutic intervention needed to address underly-
ing problems caused by his Obsessive/Compulsive personality
disorder “OCPD”)
* People’s Exhibit 2
"The Court notes that in August, 2007 (long afler father had
completed the anger management course) he continues to deny
that he has or ever had any problems with anger management
or that he ever engaged in domestic violence See Defendant's
Exhibit “O”
l4a
which the parents were to utilize were to be to take
away privileges, make use of time outs (and for Lil-
lian, also utilize naps) as a form of discipline.
From the end of July, 2005 until October 3,
2005 (during which period the children were in both
of the respondents’ care), protective services re-
ceived four additional complaints of domestic vi-
olence, which were premised upon the alleged ac-
tions of the father. ‘wo of the complaints received
during the period of August, 2005 until October,
2005 related to allegations of domestic violence by
father against mother, while two of those reports re-
lated to domestic violence by father against Hannah.
Ms. Romeo-Perez (of DHS) reported that two of the
four reports were found to be substantiated One of
the substantiated reports related to domestic vi-
olence by father against a child, while the other re-
lated to domestic violence by father against mother
(which incident 1s reported to have occurred 1n Sep-
tember, 2005)
On October 3, 2005, the father was removed
from (and thereafter remained absent from) the fam-
ily residence, and the children were left in the care
and custody of their mother from that date until
February 23, 2006, at which time the children were
again taken into protective custody due to mother’s
suicide attempt
Following hearings held on October 3” and
10", 2005, services through Families First were put
into place in the home In addition, Ms. McCauly
(who had been employed by the Eilenders in August,
2005) remained in the home to provide in-home as-
sistance 1n caring for the children Further, in addi-
tion to these in-home services, Referee Hand indi-
cated his behef that the family needed to bring
another family member (such as mother’s mother)
into the home to provide additional] assistance to this
l5a
family (over and above Ms McCauly and the services
provided through DHS), given his concerns over
mother’s ability to effectively handle and parent the
children at that time (it having been observed by the
Court that mother appeared to be in an extremely
precarious and fragile state during the course of var-
ious Court proceedings) By order of the Court, dated
October 18, 2005, the parents wore directed to 1m-
mediately procure some type of (additional) in-home
assistance, but this was never done ™
The Court also notes that the transcript of the
October 3, 2005 review hearing discloses that.
[wjJe are asking that the parents par-
ticipate 1n and complete a parenting
class, maintain suitable housing, partic-
jpate in family and individual counsel-
ing and domestic violence counseling for
both parties And they did complete the
psychological evaluation and I am also
asking for psychiatric treatment for
both parents. However, DHS does not
pay for psychiatric treatment so we’ re
asking that the parents be ordered,
however, and perhaps they have insur-
ance to cover that; Mr Enilender’s in-
surance will cover that.
(Transcript at p 5)
Further, when referee thereafter asked (on the
record and in father’s presence as 1s reflected by the
record why DHS was asking for psychiatric counsel-
ing for father, Ms Burnette responded that
0 ad J . |
” Tins 1s indirect contravention of the self-reported behavior
relayed by father to Dr Miller
16a
“{bJasically it was part of the clinic—” (See transcript
at pp 6-7)”
On October 10, 2005, 1n addition to the Parent
Agency Agreement (“PAA”), father was ordered to
refrain from telephoning the home or the children,
due to inappropriate contact which he had imtiated
with the children during the period between the Oc-
tober 3" and October 10" 2005 hearings During the
early October, 2005 contacts between father and the
children, he blamed mother for all of the problems
faced by the family. Referee Hand also indicated his
concerns over father’s refusal to provide the family
with any financial funding or assistance following
the October 3, 2005 hearing.
While father has continuously placed the
blame for the family’s situation on others and con-
tinues to contend that the failure to complete the
cleanup of the home was not attributable to his ac-
tion (as well as to assert that the clean-up of the
home had been completed before he left the home on
or about October 3, 2005), the testimony presented
by numerous other witnesses contradicts his asser-
tions * Father's continued inability to recognize and
'' These references, when taken in the context of the case as a
whole, demonstrate to the Court that father knew that psychia-
tric treatment was not only a requirement in this case, but was
his obligation to procure and pay for
* The Court notes for the record that during the course of the
tral, the issue of the admission of Exhibit “J”, and subsequent
suppression of this cxhibit, came into question Omnginally, fa-
ther represented (through his counsel that this exhibit
represented the condition of the home when father returned to
the home with his attorney on March 8, 2006, and that the pic-
tures were taken contemporaneously therewith Premised upon
this representation, the pictures were admitted into evidence
Subsequently, this was established not to be the case and,
therefore, the Court found that a sufficient foundation for the
admission of the photos had not been established The Court
17a
address his tnvolvement and responsibility for the
issues that brought (and kept) the children in care
remains problematic and clearly impaired father’s
ability to move forward and correct troublesome con-
duct throughout these proceedings * Obviously, if
one 1s unable to recognize and acknowledge proble-
matic behaviors, one 1s not truly able to rectify such
behaviors
While father attributes his contribution to-
ward the children being taken into care to his pas-
sivity and, therefore, inability to protect the child-
ren, he continues to ignore active behavior on his
part which contributed to and/or otherwise caused
the children to come into (and remain) in custody
Ms Manianne Barley, a neighbor and the par-
ent of one of Marvin’s friends, testified that Marvin
reported incidents of abuse, by father, that were di-
rected toward the children and mother. These re-
ports related to pro-petition incidents, which in-
cluded allegations by Marvin that father had
dragged the children down the stairs, locked the
children in their rooms, and physically forced the
children not to move. It also included allegations of
father generally hurting mother. Marvin indicated
that he was afraid to speak of such things and that
further notes, for the record, that the dates on the pictures, as
date stamped by the photos behe the testimony presented for
their admission, 1n that some photos have no date stamp, while
others are date stamped 3/19/06, 8/3/06, 8/4/06 and 8/6/06
’ While this Court did not find Dr Muller’s testimony to be
credible, it nonetheless notes that when specifically asked
questions by the doctor regarding the allegations that brought
the children into care (and to which father plead no contest)
father continued to deny any and all responsibility or involve-
ment, and still lacked any insight into his own behaviors de-
spite services having already bcen provided (as recommended
in the report)
18a
he had been directed to never disclose what was
going on in the Eilender home to others. The Court
cites this testimony here only as a backdrop against
post-adjudication incidents and father’s continued
denial of abusive behavior.”
Ms Barley testified that she and her husband
came to the E.lender family’s assistance after the
children were removed She testified that she (and/or
her husband) helped with the lawn and assisted in
cleaning the Ealender home. On one such occasion,
when she was present to assist mom in cleaning up
the interior of the home, during a period shortly af-
ter the children were removed, she noticed that nu-
merous doors were off their hinges She indicated
that mother told her that father had taken the doors
off the hinges to eliminate the children and mother
from being able to seek shelter from father
Ms Barley also testified that on another occa-
sion, after the children were returned to the care of
both respondents, she returned to the home to help
mother clean the family room. She testified that this
occurred sometime in August or September of 2005,
after mother returned from the hospital. At that
time she observed clothing and dirty laundry every-
where Ms. Barley attempted to determine which
clothing still fit the children and to assist with the
laundry, which she indicated appeared had not been
done in some time,
Michael Miner testified that when he was
there to help clean the home, the garage was never
‘It 1s also mentioned in juxtaposition to father’s contention
that the children were lying about incidents only after family
therapy, which rather insinuated was attributable to and/or the
result of vindictive behavior by Dr Stulberg, who was trying to
somehow “get back” at father for having filed an (unfounded)
grievance against the doctor.
19a
touched, as it was “David's territory” He also indi-
cated that despite the fact that the kids were re-
turned home, there was still a lot to be done in the
home, such as addressing holes in the walls and
clearing areas of the basement.
In October, 2005, following father’s removal
from the family residence, Ms. Barley testified that
she again returned to the home upon receiving a call
from mother who was seeking Ms. Barley’s assis-
tance in cleaning out additional rooms which had
been within the sole purview and control of father
until that time These rooms included a bedroom and
a study which were locked. At that time, mother was
attempting to accommodate Marvin’ s desire to have
his own bedroom, up until that point Marvin had
shared a room with his younger brother, Charlie
When Ms. Barley unlocked and entered the
bedroom, she found hundreds of cameras and expen-
sive camera equipment, men’s parka’s, sleeping
bags, and other men’s items. She described the
room as “over-flowing with men’s stuff”. Although
Marvin wanted lis own room, she reported that
Marvin was visibly upset about the prospect of hav-
ing his father’s items removed from the room be-
cause “we can’t touch, its dad’s stuff” Ms. Barley
testified that she spent four hours taking things out
of the “locked bedroom”. During this process, she
found toys that wore stuffed into items on the
shelves in that room Ms. Barley testified that she
was told that the toys were in that room because
they had been taken away from the children by dad,
when the kids were being punished
When the second locked room (the study) was
unlocked, Ms. Barley observed “tremendous clutter,
paper, boxes, and mail everywhere”. She indicated
that she was only able to make a path into the room.
20a
The Court found Ms Katie McCauly (who had
been hired by the Ejilenders after the children were
returned to the parents’ care), testified that she met
the Eilender family at the Jewish Community Cen-
ter, to be extremely credible She testified that she
became employed by the Eilenders In August 2005 to
assist them in the care of the children Her employ-
ment with the Eilenders spanned a period during
which both parents were residing in the home with
the children, as well as a period following father’s
removal from the home. When she started to work
for the Eilenders, in August, 2003, the home looked
“ok on the surface”. However, she reported that
there was clutter in the home when she came to
work there, animal feces present, and maggots 1n the
couch. She indicated that she would regularly docu-
ment things and fax information to St Francis until
the day that she resigned
Ms. McCauly also testified that during the pe-
riod following father’s removal (in the beginning of
October, 2005) until November, 2005 (when she re-
signed sometime around Thanksgiving), she did not
notice the condition of the home deteriorating
Ms McCauly testified that during the period
of her employment (from August, 2005 until Novem-
ber, 2005) there were always people coming in to
check up on things, and there was someone who
would come to work with mom and the kids “to help
them adjust things.” Ms. McCauly further testified
that there was often someone there “trying to help
we (NS
them get things together as a family”.
_ -
'* While various witnesses testified to the level of services being
provided to the farmly dumng this period of time, the Court
notes that father’s contention dumng his testimony that servic-
es were not being provided during this period, therefore, ap-
pears to the Court to be incredulous
2la
Michael Miner testified that mother received a
lot of outside help during this period of time. He in-
dicated that the minor children were happy with the
organization in the home as well as with the new
things that were 1n the home. Although he reported
that there was still some clutter in the home, he in-
dicated that things looked a lot better.
Ms. McCauly testified that while she was em-
ployed by the Eilenders there were certain rooms
that were locked and which were not accessible by
anyone other than father. There were also locks on
certain items, which made items unavailable to any-
one 1n the family other than father These items in-
cluded the air-conditioning, thermostat, freezer, cer-
tain doors and the “den”. Often the temperature in
the home was “very cold” At one point, she reported
to work and found that the thermostat had been
pulled out. She testified that this all occurred while
father was still residing 1n the home.
She reported that there were days when there
was no food available for the children or mother Al-
though Ms. McCauly testified that she discussed this
issue with father, his conduct was not remedied
while she remained in the Ealender’s employ As a
result, Ms McCauly reported times when she would
have to buy food for the family out of her own funds,
and on occasion had to also purchase diapers for Lal-
lian, because there would be none in the home for
her use. She also testified that she would personally
have to supply the children with their lunch money,
because no funds would be made available for the
children.
Ms. McCauley testified that father would have
special “expensive” food that was different from the
food that he would make avanulable to the family
Mother also testified to this situation as well
22a
On some days during Ms McCauley’s em-
ployment with the Eilenders she would arrive and
find the children’s rooms locked from the outside,
while on other days the doors would be found to be
off of the hinges. She further testified that the family
was never allowed access to two of the rcoms while
father was still residing in the home, which included
the den and one of the bedrooms upstairs
Ms McCauly said she witnessed daily physi-
cal violence between the children, which included
their use of objects (such as knives), striking each
other, sitting on each other and other threatening
conduct She testified that the children acted out in
ways which were consistent with the behaviors they
had observed and, therefore, learned She also testi-
fied that father would say and use words 1n front of
the children, which Ms. McCauly thought to be in-
appropriate, and then she would be witness to the
children repeating the words that they had heard
from their father.
She testified that she regularly witnessed vi-
olence between mother and father. This included
verbal and physical abuse Although she testified
that mother generally “tried to appease” abusive
conduct would still come into play
She characterized father as an “absentee par-
ent” while in-home services were being provided to
the family. She also reported that he would require
her to work hours which were well beyond what she
was hired to cover, and that this occurred on a regu-
lar basis Because Michael Miner had taken on an
authoritative role with the children when he lived at
home with his mother, he indicated that there would
be times (during this period of time) when his moth-
er would call him for assistance She would say,
“Marvin is kicking me”, and his mother would put
Marvin on the phene and Michael Miner would at-
23a
tempt to deal with it over the phone, because he
“was hke the dad to these kids since they were
born”.
Ms McCauley testified that when the parents
would communicate, their voices woulu be raised or,
conversely, there would be no communication at all
She also testified that there were times that she
would witness father take mother’s purse away
from her and lock it up in his study She said this
occurred two or three times while she was in the E1-
lenders’ employ Other times, mother would report
that she had no funds and that father had taken
away her credit cards
Ms McCauley testified that she was in-
structed to “sit on the children and press them”, but
she refused to do so, because she “didn’t believe in
that” She indicated that both parents said that they
did this as a form of discipline, and that she saw
such discipline utilized by both parents on the child-
ren She particularly recalled incidents of this form
of discipline involving Charle and Hannah She tes-
tified that when these parents would engage in this
form of discipline, it could occur wherever they were
at the time, which included it happening on the floor,
steps, chair, and the couch In Ms. McCauley’s opi-
nion, she viewed such discipline as being “excessive
punishment”
Ms McCauley also witnessed incidents when
father would lock a child into his room. She saw fa-
ther do this to Marvin and to Charhe.
Ms. McCauley further testified that she was
called into the school to address such issues as “why
dad had pulled Hannah and hurt her arm”
When the parents would attempt to impuse
their disciplinary tactics upon the children, the
children would yell, try to run away and cry. At onc
point, even the youngest child (Lillian), who was
24a
about two years old at the time, ran out into the
street naked From her observations, the two oldest
children essentially viewed themselves as the par-
ents in the household As a result, the children
didn’t like being disciplined because they felt that
they were the “adults”. Ms. McCauley testified that
the family’s inappropriate and violent conduct oc-
curred so often 1t was “like normal fare”
Ms. McCauley also testified to two separate
occasions (between August and October, 2005) when
she had to take the mother to the hospital. One time
was because mother had a miscarnage, while anoth-
er time was because she was so badly bruised on her
arms and in her private area and was loosing blood
that Ms. McCauley had to convince father (who in-
itially didn’t want mother to go) that mother had to
be permitted to go to the hospital. During this occa-
sion father did remain home to care for the kids It
was Ms. McCauley’s recollection that on this occa-
sion mother was required to remain in the hospital
for some period of time (which might have been for
upwards of one week).
Ms McCauley testified that mother had in-
formed her that the bruises had been caused by fa-
ther. These bruises were around mother’s vaginal
area, her inner thighs and on her arms. Ms McCau-
ley said that these injuries were reported to have oc-
curred during what was relayed to be a standard
dispute over “one not wanting and one feeling they
were entitled”
Ms McCauley testified that the downstairs
half bath still hadn’t been repaired during the pe-
riod that she was employed by the E:lender family.
She said it would back up so badly that one could
smell it though-out the house She testified that
when she left the Eilenders’ employ, in November,
25a
2005, the bathroom plumbing for that toilet still was
not repaired.
Ms. McCauley testified that during the period
that she was in the Eilenders’ employ, there were
periods when the only operating phone in the home
was her own cell phone.” She personally tried to as-
sist mother in managing finances due to the delin-
quent state of utilities, and mother’s constant fear
following the father’s removal that the utilities
would be shut off. Although Ms. McCauley didn’t
know for certain when the utility arrearages oc-
curred, she was certain that a portion of the same
emanated from a period prior to father leaving the
family abode because shutoff was being threatened
in October or November, 2005, before she left their
employ
Ms. McCauley also testified that while she
was rendering services there were periods during
which she simply wasn’ t paid (and still has not been
paid).
As of November 7, 2005, there were some en-
couraging signs regarding mother’s ability to parent
the children (with substantial outside assistance).
DHS reported that with in-home services in place
the children were doing well following father’s re-
moval from the home As of November, 2005, father
was afforded supervised visits with the children. On
November 7, 2005, the Court appointed a special ad-
vocate for the children, with such individuals to be
designated by the Child Abuse and Neglect Coun-
cil’s Janice Morganroth Advocates for Children
(JMAC) program.
* While father acknowledged that he was to be responsible for
the payment of the utilities, he attempted to explain away his
failure, by indicating that mother had failed to send him copies
of the bills so he could pay them
26a
On November 30, 2005, father began to attend
individual therapy with Oakland Family Services.
However, in his intake assessment, father failed to
disclose his diagnosis of obsessive compulsive perso-
nality disorder, nor did he acknowledge any of the
behaviors which contributed to the children being
brought into care In essence, father continued to
place the blame for the family’s situation upon
mother, and only indicated that his responsibility
was limited to his inaction and merely amounted to
(in his mind) a failure on his part to protect the
children from mother’s neglectful behavior More
importantly, father misrepresented the nature of his
treatment with Dr Gonzales, and indicated that he
had an ongoing therapeutic relationship with the
doctor for addressing issues of anxiety, which he ap-
peared to portray as merely being situational in na-
ture.
" The Court notes that Dr Gonzales (who was called by father)
testified that he treated father for problems with obsessive
compulsive personality disorder for seven wecks spanning a
period from Junc, 2005 through July, 2005 Therefore, as of the
time that father initially saw Ms Winter-Long at Oakland
Family Services, father had already unilaterally terminated his
treatment with Dr Gonzales, in direct contravention of the
Court’s order, that he engage in such therapy Father had indi-
cated to Dr Gonzales that he would no longer require his ser-
vices as the Court would be providing him with such therapy
(which representation 1s 1n direct contradiction with (the record
in this case) While father now pleads ignorance of any diagno-
sis of OCPD, this also appears to be incredulous, inasmuch as
father’s own counsel divulged the diagnosis to Dr Gonzales and
the evaluation of the psychological clinic provided that treat-
ment for this disorder was to be part of father's treatment plan
Furthermore, although father admitted to hoarding items
(when interviewed by Mr MacIntosh, he failed to disclose to
any subsequent service provider any of his activities in this re-
gard
27a
As of November 30, 2005 father reported to
Ms. Winter-Long that he had filed for bankruptcy
court protection, and as of December 9, 2005, plead-
ings were filed by father’s retained counsel (in this
case) requesting that a court appointed attorney be
provided for father, alleging that father had report-
edly filed for bankruptcy court protection ™
As of February 2, 2006, the Court provided
DHS with discretion to permit father to have unsu-
pervised visits with the children, over the objections
of workers involved in the case At this time, mother
was also ordered to comply with Wrap Around Ser-
vices through DHS while the children remained in
her care in the family’s home As of February 2,
2006, DHS reported that there were fifteen protec-
tive service referrals since the children came into
care in May, 2005 (which represented an additional
eleven referrals since father’s rernoval from the
home in October, 2005) As of February, 2006, many
of the additional referrals related to mother’s un-
usual behavior, although as of the February 2, 2006
none of the referrals relating to mother’s behavior
had as yet been substantiated
At the February 2, 2006 review hearing there
was great concern regarding mother’s then current
mental health status as well as concern which st1)]
existed over father’s refusal to pay for standard
home expenses and other issues During this period
the Court struggled with 1) trying to balance the fact
that the children appeared to be doing better being
placed together and living with mother (despite the
precarious nature of her mental health status) than
they had done while they were 1n foster care, with 2)
" However, a review of the Bankruptcy Court pleaaings reflects
that father didn’t file for Chapter 7 bankruptcy protection until
February 24, 2006
28a
the disconcerting reports 1t was receiving regarding
the behavior of both parents and concerns which the
Court was left with after observing first hand the
conduct of the parents during the numerous review
hearings conducted up to that point in time.
By court order of February 9, 2006, the par-
ents were required to reimburse the costs associated
with the children’s Guardian Ad Litem (“GAL”),
the cost of their respective court appointed counsel,
the cost of the children’s out of home care, as well as
the children’s medical care, for the period from and
after May 20, 2005
Various witnesses testified that father’s re-
fusal (during the period between October, 2005 and
February, 2006) to provide necessary financial sup-
port for the famaly placed mother 1n a position where
she had to beg for food and gas meney, and mother
had to donate time 1n order to obtain clothing from
the Salvation Army for the children,
On February 23, 2006, the Court ordered the
emergency removal of the children, as a result of
mother’s attempted suicide and contemporaneous
hospitalization At the time of the removal, the
Court noted that despite the provision of “very sig-
nificant in-home services provided to the family”,
there have been a number of protective service refer-
rals since the children came into care, and it had be-
come evident “it 1s contrary to the welfare of the
children to remain in the home dunmng the pendency
of the hearing because mother is now unable to care
for the children in this ongoing neglect case”.
From May, 2005 until February, 2006, the
family had been provided with services through Eas-
ter Seals, Families First, Wrap Around Services, 1n-
home services and family reunification services
Mother, Marvin and Charlie had been attending
weekly individual therapy at Haven, and mother,
29a
Hanna and Lewis had attended group therapy also
at Haven.
During this time period, father had individual
therapy through Oakland Family Services, and saw
Dr. Gonzales on a private pay basis for seven ses-
sions during June and July, 2005
Father had also attended Anger Management
classes through the CHOICES program, there had
been regular home visits”, and (from November,
2005 until February, 2006) father had weekly super-
vised parenting with the children at St Francis in
the presence of a CASA worker During this same
period, mother received group support through the
children’s school, the JCC and members of the
neighborhood (of both an emotional and financial na-
ture), in addition to receiving foster care services.
During November and December, 2005, and
January and February, 2006, Jinelle Manchester, an
Oakland County CPS worker, also worked with
mother, while the children were in mother’ s care in
the family home. She testified that, on average, she
saw them at least one time each weck.
'* While it was reported that father eventually became fully en-
gaged and positively participated in a 26 week course of Anger
Management classes, through which he demonstrated in his
class partictpation and written homework assignments that he
had internahzed and derived some benefit from attending the
course, question was raised (during the testimony of Mr
Kicinstiver as to whether father was able to fully integrate the
lessons of this class and, therefore, benefit to the extent neces-
sary to permit him to properly parent the children) based upon
his actual conduct following the completion of the course Mr
Kletnstiver’s testimony indicated that father’s subsequent re-
fusal to take responsibility for his conduct which contributed to
and/or caused the children to come into care, and his continued
use of physical disciphnary tactics did not indicate that had
actually received the necessary level of benefit
30a
During her weekly meetings with mother, Ms
Manchester indicated that mother was often nervous
and scared about various issues, including, but not
limited to financial issues, and particularly whether
or not utilities would be shut off, and she was “very
scared, always, that she wasn’t able to properly care
for the kids ” Ms. Manchester testified that after
their sessions mother would always feel strong and
secure, but then a day or so later she’ d again be un-
certain and scared Mother testified that during this
period (between October, 2005 and February, 2006)
she often could not control the children, and would
have to call the police just to get the children off to
school
During these weekly sessions, mother would
always be grateful for and report who had helped her
out, but she was clearly overwhelmed by the help
she was already recetving and she “never asked for
more services”.
DHS reported to the Court that at the time of
removal (on February 23, 2006), the home was in a
state of “disarray”
Jinelle Manchester was the CPS worker who
found mother and called 911 on February 23, 2006.
Ms. Manchester had become involved with the E1-
lender family in or around November, 2005, in her
capacity as a CPS assigned to Oakland County.
From November, 2005 until February 23, 2006, there
were six or seven referrals which were assigned to
her to investigate She indicated that some of these
referrals were substantiated, but since services were
already in place nothing was really done with regard
to such referrals
By the time Ms Manchester was involved in
the case, the family had already received counseling
and Families First had already come and gone The
family had already had the benefit of Easter Seal re-
3la
ferrals and Wrap Around Services were about to
commence. Therefore, pursuant to Ms. Manchester’ s
testimony, there had been multipie hours per day,
and multiple days per week of services provided in-
home with regard to this family before she even be-
came involved with this family.
Ms Manchester reported that some of the re-
ports she was assigned to investigate related to the
children beating each other up, as well as the child-
ren beating up mother, mom being drunk, mother’s
eating disorder, sexual abuse by father against
mother and/or the children and a report that father
had previously choked a child
As a result of these investigative referrals, the
children were taken to (and interviewed at) Care
House Although no sexual abuse against the child-
ren was substantiated, allegations that what the
family called “crabbing” (which was characterized
by physical violence that could entail suffocating,
cutting off a child’s circulation and/or otherwise
physically inhibiting the child’s ability to move)
were substantiated “ During the Care House inter-
view, the children characterized their father as being
“mean” and reported that “he hurts people” The
children indicated that “crabbing” occurred on a
fairly regular basis. During the interview, the child-
ren reported seeing father choke Charlie in the past
Other abusive behavior engaged 1n by father, as re-
” Father has characterized “crabbing” as something that
“started out as a playful term when | was playfully and benign-
ly wrestling with my children and got distorted into all levels of
physical abuse, but at most it amounted to minimal, accepta-
ble, temporary restraint of a child to avoid injury to that child
or another child” (See page 10 of Exhibit “O”) Dumng the trial,
father admitted that the chi!dren might have perceived these
actions as something eJse and may have felt (at times) as if
they couldn't breathe dumng these hmnuted occasions
32a
ported by the children, was more “emotional” in na-
ture ”
When father was interviewed by Ms. Man-
chester, on February 9, 2006, he generally denied all
of the allegations. Father reported that “crabbing”
was more like a bear hug to calm the kids down”
Father did admit that he did use “crabbing” as a
mechanism of restraint and acknowledged that the
kids “may hurt themselves when they try to get out
of the hold” Ms Manchester indicated that while
father would generally deny allegations levied by his
wife, as to other allegations he would “dance around
issues and not answer directly” Father blamed a lot
of the family’s circumstances on mother, and said
that she was “sick”, without providing Ms. Man-
chester with a diagnosis or indication of what illness
mother suffered from
Although Ms. Manchester wasn’t responsible
for monitoring the family’s financia] situation, she
was informed that father had filed for bankruptcy
and mother was having difficulty managing on the
limited funds provided It was clear to Ms. Manches-
ter that mother was disclosing too much adult in-
formation to the children, and the children reported
to Ms Manchester that “mom 1s sad because daddy
won’t pay the bills” Marvin also reported being
fearful that bills wouldn’ t be paid, and said his fears
were based on things his father had told him about
not paying the bills.”
* Again the Court notes that all of those accusations by the
children of physically and emotionally abusive behavior by fa-
ther, pre-date any therapeutic intervention by Dr Stulberg
* While father attempted to caste aspersions on Charhe’s alnh-
ty to provide reliable information to Dr Stulberg, no such in-
sinuation was made with regard to Marvin's propensity toward
veracity
33a
Ms Manchester testified that at the February
9, 2006 interview father reported that he had al-
ready gone to Anger Management/Domestic Violence
classes, individual counseling, and parenting classes.
He reported doing the things necessary to complete
the PAA, but Ms Manchester was left with the 1m-
pression that father was simp'y going through the
motions
When Ms. Manchester arrived for a pre-
arranged visit on February 23, 2006, she found that
mother was unable to care for the children. When
Ms. Manchester arrived, mother was in a distressed
state, and mother was indicating that she was “a
horrible mom” and she ‘couldn’ t do it”.
Upon arrival at the home, Ms. Manchester
found some of the children cleaning, and one child
was in the kitchen with a neighbor making “mac
and cheese”.
When Ms. Manchester encountered mother
(who has an acknowledged eating disorder) it was
evident to her that mother had “purged a lot” as she
was covered with vomit Mother was crying, ap-
peared distraught, and indicated that she had taken
too much of her medication Ms Manchester indi-
cated that she decided to take mother to Common
Ground for an assessment, and sent mother to her
room to change out of her vomit covered clothing
When mother didn’t return within what Ms Man-
chester perceived to be a reasonable period of time,
she went upstairs to check on mother, since mother
had been threatening suicide.
Ms Manchester testified that she found
mother passed out, partially dressed, and laying on
broken glass. She then checked to make sure that
mother hadn’t cut herself (given her suicide
threats), and was able to determine that mother had
not cut herself Ms Manchester then testified that
34a
she phoned 911 for mother’s care and the children
were removed from the home and taken to Child-
ren’s Village
When examined (during the course of these
proceedings), respondent mother testified that she
overdosed on her medications with the specific intent
of having the children taken into protective custody
“for their own good”, and that she specifically timed
the incident to coineide with the anticipated arrival
of foster care workers and/or someone from CPS fora
scheduled (and previously confirmed) visit Mother
testified that she thought that by trying to kill her-
self, the children would get the care they needed in
foster care, since she recognized that she could not
care for the children on her own.
Ms Manchester indicated that despite the fact
that the “home wasn’t the cleanest” on February
23, 2006, the condition of the home (at that time)
would not have caused removal of the children
Mother’ s room was “really bad” and the rest of the
home “looked lived in”. On February 23, 2006, Ms
Manchester felt that the condition and clutter in the
home (other than in mother’s room) was consistent
with what she had encountered on her prior visits to
the home, and was not to the state evidenced by the
May, 2005 pictures (which Ms Manchester had
viewed in the past) ”
* Although father introduced various sets of pictures with re
gard to the condition of the home at vanous points 1n time, no
pictures were provided by father that demonstrates the state of
the home on February 23, 2006, the Court, therefore, has relied
upon the testimony of the various witnesses with regard to the
condition of the home at the time of the second removal, which
testimony has consistently portrayed a picture of the home be-
ing in a fairly consistent state following the return of the child-
ren to the family abode (which covered a period when both par-
ents resided in the home with the children)
35a
Ms Manchester also testified that when she
went to get the children’s car seats (in order to
transport the children to Children’s Village), there
were no vehicles in the garage, and while there was
“stuff in the garage” it looked hke (and was no
worse than) most other garages. At that time, there
were two vehicles parked outside of the garage.
Throughout her involvement in the case, Ms
Manchester indicated that there were concerns over
mother’s ability to care for herself (because of her
eating disorder and mental health issues). However,
since mother didn’t seem to directly be hurting the
children, Ms. Manchester indicated that her supe-
riors felt it was a “grey line” that simply meant that
CPS didn’t get involved with mother’s personal 1s-
sues until they became a danger to the children on
February 23, 2006 (given that services were already
being provided through foster care and the courts)
During Ms Manchester’s involvement, the abuse
which was reported related more to the children ab-
using mother, than the other way around, and the
children were then in the process of learning tech-
niques to respect their mother Ms Manchester indi-
cated that she did observe the boys, during this pe-
riod, not obey mother, but she never observed the
boys hit mother The children did engage in a lot of
“rough housing” in the house. Once the children
were again placed into temporary custody, CPS
closed out its investigation without making further
findings, as the children were already removed from
any danger as of February 24, 2006. As a result
there was an administrative closure of the then out-
standing CPS referrals (in April, 2006) due to the
existence of both foster care and court services for
the children.
It appears that from February 23, 2008 until
April 10, 2006 mother was hospitalized as a result of
36a
her February 23” suicide attempt. During and fol-
lowing this period, since the children had been re-
moved from the home, father was permitted to re-
turn to the home and utilize the same as his
residence
Despite the period of time that had passed
since the children had come into care (in May, 2005),
and the numerous CPS referrals that had been made
regarding this family following the Court exercising
jurisdiction over the children, because of father’s
general compliance with the terms of the PAA, as
well as the additional counseling he had obtained,
the Court continued efforts to effectuate reunifica-
tion of this family, and family therapy was ordered
and commenced. However, despite father’s general
PAA compliance, the Court was still extremely con-
cerned for the safety of the children, and a deliberate
course was mapped out 1n order to facilitate possible
reunification of the children with their father The
services included with an eye toward reunification
included individual therapy of the children with Dr.
Stulberg and family therapy with Dr. Stulberg, so
that significant outstanding issues (between father
and the children) could be addressed
In large part, a review of the Court file reflects
that the family therapy sessions were put into place
to specifically address outstanding issues between
father and the children “
The PAA dated December 30, 2005” appears
to be the first agreement which was actually ex-
ecuted by father. However, this PAA was not ex-
ecuted by mother, because she was in Havenwyck at
“ See Order Following Permanency Planning Heamng (Child
Protective Proceedings), dated Apni 11, 2006
* People’s Exhibit 3
37a
the time father executed the same (on February 28,
2006) and at the time of adoption by the Court
This PAA, added additional requirements for
these parents, in what clearly had been a fluid and
ever changing situation, as more of the underlying
root problems which lead to the environmental neg-
lect became evident The additional and/or expanded
requirements of this PAA, included, the following:
As to mother
* Obtain and maintain emotional stabil-
ity and coping strategies
°
Participate in counseling sessions
at the Haven;
Maintain 100% attendance and
participation during sessions, and
be open and honest with counse-
lor;
During Individual counseling ses-
sions she must focus on the specif-
ic problems that interfere with pa-
rental role performance She is
responsible for learning improved
personal/social responsibility for
child care, logical and responsible
decision-making, reduction of fam-
ily conflict, development of age
appropmate expectations, display-
ing greater parent/child affection
and trust, appropriate expression
and control of feelings, opening
and strengthening of the family
support system, improvement of
communication skills, being a role
model and taking responsibility
for behavior;
38a
Follow all recommendations of the
counselor,
Complete all necessary paperwork
and sign release of information,
Participate in domestic violence
group counseling sessions at Ha-
ven,
° Comply with psychiatric services
and medication prescribed;
° Obtain appropriate parenting
skills,
Participate in parenting classes
through Haven;
° Display appropriate parenting
skills learned through parenting
classes in the home on a daily ba-
sis;
° Be responsible for learning’ beha-
vioral management, praise, how to
use time-outs, choices and conse-
quences, how to express feelings
and needs by assuming ownership
of behavior and appropriate age
development
Provide/maintain a clean, safe nurtur-
ing environment for all of the children,
with the environment to remain free of
domestic violence and conflict;
Provide transportation for a list of ac-
tivities outlined in the PAA,
Allow caseworker visits twice per
month,
Provide adequate structure and discip-
line for the children that include mon-
itoring their development Discipline
was to include time-outs, grounding,
verbal reprimands, rewards and an
39a
explanation of why the child is being
rewarded or disciplined for their ac-
tions, and all physica! discipline was
prohibited.
As to father’
¢ Obtain and maintain emotional stabil-
ity and coping strategies.
Participate in counseling sessions
at Oakland Family Services,
° Maintain 100% attendance and
participation during sessions, and
be open and honest with counse-
lor;
Focus on the specific problems
that interfere with parental role
performance, and be responsible
for learning Improved personal/
social responsibility for child care,
logical and responsible decision-
making, reduction of family con-
flict, development of age appropri-
ate expectations, displaying great-
er parent/child affection and trust,
appropriate expression and control
of feelings, opening and streng-
thening of the family support sys-
tem, improvement of communica-
tion skills, being a role model and
taking responsibility for behavior,
Follow all recommendations of the
counselor;
Complete all necessary paperwork
and sign release of information.
«+ Obtain appropriate parenting skills,
40a
Participate in parenting classes
through the Alpha Family Coun-
seling,
° Display appropriate parenting
skills learned through parenting
classes 1n the home on a daily ba-
sis,
Be responsible for learning beha-
vioral management, praise, how to
use time-outs, choices and conse-
quences, how to express feelings
and needs by assuming ownership
of behavior, appropriate age devel-
opment and effective disciplinary
methods providing alternatives to
corporal punishment,
° Follow all recommendations made
by provider,
° Complete all necessary paperwork
and sign release of information,
* Obtain and maintain healthy relation-
ships,
° Participate in domestic violence
counseling through the Choices
program,
° Learn alternative ways to express
his anger;
° Improve communication _ skills
with his family;
Complete all necessary paperwork
and sign release of information.
Thereafter, in the PAA dated April 3, 2006",
the following goals and objectives were added, or
** People’s Exhibit 5
4la
otherwise expanded those already in place under
prior PAAs:
As to father’
* Complete individual and domestic vi-
olence counseling;
° He was to continue in and satis-
factorily complete therapy, both
individual and as to domestic vi-
olence, and meet all his treatment
goals, through Alpha Family
Counseling and Choices;
Demonstrate learned techniques
from this counseling in his daily
life and in interactions with the
children and mother;
Attend all therapy sessions, inte-
ract appropniately, participate and
be on time;
Sign a release to ensure that the
worker could receive any progress
reports,
The expected outcome was that he
would learn and utilize appropri-
ate coping skills and address 1s-
sues regarding domestic violence
, Obtain appropriate parenting skulls,
He was to attend and participate
in all parenting classes through
Alpha Family Services;
Demonstrate learned parenting
techniques in his interactions with
his children;
Successfully complete and benefit
from classes,
Submit a completion certificate,
0
42a
The expected outcome was that he
would display appropriate parent-
ing skills.
Maintain and develop a further bond
with the children,
0
He was to attend all visitations at
the agency,
Be on time for all visitations;
Demonstrate appropriate interac-
tions with his children during the
visits;
The expected outcome was that he
would maintain any existing bond
with his children and develop fur-
ther relationships with the child-
ren necessary for reunification.
As to mother.
She was to take necessary steps to en-
sure healthy and stable mental health;
°
She was to continue to receive
therapy for her diagnosed cating
disorder, Bipolar and stress,
Follow all directions of her therap-
ist/doctors and take medications
as prescribed and directed,
Demonstrate learned therapeutic
techniques in her daily life;
Be on time for all appointments,
participate in and complete all
therapy goals;
Receive domestic violence services;
Sign any necessary releases so
that worker could obtain informa-
tion for case management;
The expected outcome was that
her medication would be regulated
43a
and she would demonstrate stable
mental health
* Develop and utilize appropriate pa-
renting skills;
° Attend and participate in all pa-
renting classes through Catholic
Social Services;
Demonstrate learned parenting
techniques in her interactions
with her children;
Successfully complete the parent-
ing class;
Submit completion certificate to
worker;
The expected outcome was that
she would learn and implement
appropriate parenting and beha-
vior medication in dealing with
her children
+ Maintain and develop a further bond
with the children;
° She was to attend all visitations at
the agency;
Be on time for all visitations,
Demonstrate appropriate interac-
tions with the children during the
visits;
The expected outcome being that
her bond with the children would
remain strong.
On June 7, 2006, following a review hearing
where inappropriate communications from the fa-
ther to the children were again reported, father was
again ordered not to discuss the case with the child-
ren (or in their presence). ‘This order and the other
orders of the Court regarding such behavior have
44a
remained in place and were continued throughout
the pendency of these proceedings.
At a review hearing on July 14, 2006, father
was reported (and acknowledged) engaging in tape
recording the children during his extended parenting
time with them This activity made the children feel
extremely uncomfortable and was also found to be
inappropriate behavior. Father was ordered to dis-
continue this practice Moreover, at this time father
was refusing to engage in family therapy with Dr.
Stulberg Consequently, the Court reminded father
that his participation in family therapy was Court
ordered and he was required to participate in such
therapy if he desired to have a chance of reunifica-
tion with his children ” On July 14, 2006, father and
mother 1t was again reiterated that neither of the
respondents were to discuss the case with (or in the
presence of) the children
Although both respondents were found to be
in compliance with the PAA during the next report-
ing period (which ended August 25, 2006), such a
finding does not preclude this Court from concluding
that respondents had failed to benefit from the ser-
vices provided and, in fact, the Court noted (at that
time) that considerable work remained to be done by
respondents before the children could be returned to
either of their care
” Although father thereafter returned to family therapy (pur-
suant to the court order), it 1s apparent that he did not do so
with an open mind, and that this (together with his refusal to
accept responsibility for his own actions) significantly impaired
his ability to benefit from the therapy provided Therefore, the
failure of father to benefit from such therapy 1s not Dr Stul-
berg’s fault (or that of DHS as argued by father), but rather the
direct result of father’s own lhmitations and inability to be open
to such therapy and/or to accept responsibility for his own
wrongful conduct
45a
In the reporting period preceding the Septem-
ber 27, 2006 review hearing, father had again en-
gaged in conduct which resulted in yet another CPS
referral This referral emanated from an incident
where father had “grabbed Charlie’s wrist”. Al-
though the Court did not act to limit father’s visita-
tion at that time, father’s continued physical discip-
linary actions were clearly problematic given the
facts and circumstances of the case, and demonstrat-
ed (to the Court) the hmited benefit derived by fa-
ther from ‘the services rendered as of that time
(which had in part focused on teaching father ways
to discipline the children without resorting to physi-
cal force)
The parties’ last PAA was one dated October
5, 2006”. In this PAA the following goals, objectives
and/or requirements were added.
As to father:
¢ He was to attend family counseling;
° This therapy was to be with the
children;
He was to participate in the family
therapy;
He was to demonstrate learned
parenting techniques 1n his inte-
ractions with the children;
The expected outcome of this ther-
apy was for father to accept re-
sponsibility and gain understand-
ing about how his behavior affects
his children, as well as to display
appropriate parenting skulls.
* Obtain and maintain’ appropriate
housing,
” People’s Exhibit 4
46a
He was to obtain and mazntain
suitable and appropriate housing;
Allow case worker to do an as-
sessment of the home;
Maintain a clean and safe home;
Allow the case worker into the
home a minimum of quarterly,
The expected outcome was that he
would provide the safest and least
restrictive environment for the
children,
Obtain and maintain financial secuni-
ty;
o
Provide all necessary paperwork
pertaining to his bankruptcy;
Provide verification of his current
income;
Provide verification of his current
financial situation;
The expected outcome was that he
would become financially secure in
order to provide for his children
Maintain contact with the case work-
er;
9
9
Maintain a minimum of bi-weekly
contact with the case worker via
telephone, mail, e-mail and/or
face-to-face contact;
Communicate any progress or con-
cerns with the case worker,
Submit all verification of progress
to the case worker in a timely
manner,
The expected outcome was that hr
would be able to communicate and
work appropriately with the case
worker
Ava
As to mother’
With regard to taking the necessary
steps to ensure healthy and stable
mental health, the requirement that
she receive therapy for her past alco-
hol/prescription drug problems was
added.
Obtain and maintain appropnate
housing,
° Obtain and maintain suitable and
appropriate housing;
° Allow the case worker to do an as-
sessment of the home;
Maintain a clean and safe home;
° Allow the case worker into the
home a minimum of quarterly;
The expected outcome was that
she would provide the safest and
least restrictive environment for
the children
Obtain and maintain a legal source of
income;
° She was to continue to try to ob-
tain employment as not to depend
on her alimony in order to pay
rent,
Continue to work at the Salvation
Army;
Provide venfication of income to
the case worker;
° The expected outcome was that
she would be able to provide, at a
minimum, for her children’s basic
needs
Manntain contact with the case work-
er,
48a
Maintain a minimum of weekly
contact with the case worker via
telephone, mail, e-mail and/or
face-to-face contact,
° Communicate any progress or con-
cerns with the case worker;
Submit all verification of progress
to the case worker in a timely
manner;
° The expected outcome was that
she would be able to communicate
and work appropriately with the
case worker.
At the review hearing of October 30, 2006, tes-
timony indicated that father still had made no
progress in family therapy by that date. Dr. Stulberg
testified that father’s (continued) refusal to take re-
sponsibility for any of the past problems with the
children, including mentally or physically abusive
behaviors 1n the home, precluded him from making
any progress in family therapy, and that such con-
duct (by father) was extremely frustrating to the
children Therefore, despite the provision of numer-
ous services, it appeared to the Court (premised
upon the testimony presented) that “father has gone
about as far as he 1s going to go in being able to deal
with the issues that brought this matter to the
Court”, which did not appear to be sufficient to re-
mediate the issues and provide sufficient safeguards
against reoccurrence. At the time of the October 30,
2006 review hearing, 1t appeared that the only real
progress that had been made had been made by
mother (but even that was tenuous at best). Since
the parents were then separately planning for the
children’s care, it was then hoped that if mother
would get help from other family members to provide
49a
care for the children, and also get her mental health
issues under control, there might be a possibility of
reunification However, this has not occurred and at
the present time the children have now been under
the Court’s temporary jurisdiction for almost three
years.
Given mother’s conviction for perjury (a fact
which she regularly referred to during the course of
these proceedings and alluded to as being justified
on the stand as a means to eliminating the possibili-
ty of father again obtaining unsupervised time with
the children) this Court has carefully listened for
substantiating and/or other corroborating evidence,
rather than basing its findings on the allegations
made by mother against father Additionally, from
the Court’ s careful review of the bankruptcy records
(and pleadings contained therein”) and testimony of
father in these proceedings, 1t also appears that fa-
ther has considerable problems with veracity ” In
this regard, the Court bias considered the totality of
the record in these proceedings, certain incredulous
statements by father, father’s failure to fully dis-
close and/or misrepresent information to various
service providers, as well as father’s failure (in the
bankruptcy proceedings) to disclose the existence of
numerous assets, misrepresentations regarding his
actions with regard to accessing safety deposit boxes,
and the potentially fraudulent transfer of assets to
his mother in order to avoid obligations which he in-
* See People’s Exhibit 12 (also marked as Defendant’s Exhibit
H)
* At the conclusion of the tral, father asserted that his prob-
lems with veracity stem from his “disability” if one 1s to believe
him he suffers from OCPD, and should, therefore, somehow be
excused
50a
curred” As a result, neither of the respondents are
found to be particularly credible. In juxtaposition,
the Court found the testimony of Dr, Gonzales, Syd-
ney Smith, Jinelle Manchester, Ms McCauley, Ms
Romeo-Perez, Marianne Barley, Mr MacIntosh, Mi-
chael Miner and (particularly) Dr Stulberg to be
eminently more believable, persuasive, candid and
credible.
On January 30, 2007, the Court found that
sufficient progress toward alleviating or mitigating
the conditions that caused the children to be placed
or to remain in temporary foster care had not been
" With regard to the bankruptcy proceedings, this Court par-
ticularly refers to (in this regard) the Trustee’s Objections to
Debtor’s Motion to Dismiss Chapter 7 Proceedings, dated De-
cember 22, 2006, as well as Trustee’s Objections tc Debtor’s
Amended Exemptions Also of note, are father’s continued at-
tempts to place his omission of assets and key facts upon res-
pondent mother, claiming that she had taken financial records
during a period when the records were not sent to the manital
home, but instead to a post office box held solely in father’s
name, and while father was residing outside of the mantal
home (with his own mother), such that the records would not
have been accessible to respondent mother (See also Debtor’s
Response and Bnef in Opposition to Trustee’s Objections to
Debtor’s Amended Claimed Exemptions) The fact that the
bankruptcy court found mert in the Trustee’s position (and
that father’s position was lacking 1n credibility) 1s evidenced by
the Court’s order denying conversion or dismissal of the bank-
ruptcy proceedings in an order dated February 1, 2007 Add-
tionally, given formal adversanal proceedings which were
brought against father in regards to the bankruptcy proceed-
ings (which resulted in a compromise settlement requiring fa-
ther’s payment of $130,000 to the bankruptcy trustee following
a settlement dated March 20, 2007 emanating from father’s
musrepresentations) it appears that considerable credence may
be found in the Trustee's allegations that father engaged in
perjury and fraudulent conduct duriny the course of his bank-
ruptcy proceedings
5la
made in accordance with MCL 712A 19(7), and that
returning the children to the parents would cause a
substantial risk of harm to the children’ s hfe, physi-
cal health, or mental well being. Consequently, pro-
ceedings were initiated to terminate the parental
rights of both respondents to the children in this ac-
tion Based upon the record of the January 30, 2007
review hearing and testimony of DHS, Sydney Smith
and a CASA worker, as of January, 2007 father was
still refusing to accept responsibility for any of the
actions that brought (and had kept) the children in
care, and that the children were no closer to being
reunified with father (after considerable services had
been rendered) than when they were taken into cus-
tody.
On March 2, 2007 father filed a motion seek-
ing to withdraw his plea of responsibility under the
May 2005 Petition, alleging essentially that respon-
sibility for his current situation (with regard to po-
tential termination of his parental rights) should be
placed upon his prior counsel (who allegedly violated
his procedural mghts) and DHS and Dr. Stulberg
(who allegedly made misrepresentations and acted
in bad faith with regard to respondent father) These
allegations were determined to be unfounded, and
father’s motion to withdraw his plea was demied on
March 8, 2007.
On March 13, 2007, a Supplemental Petition
(Child Protective Proceedings) was filed in this ac-
tion, seeking the termination of both respondents’
parental mghts to the five minor children who were
still under the Court's temporary jurisdiction The
Supplemental Petition sought termination of the
respondents’ rights under MCL 712A 19b(3)(c)i),
(3)(g) and (3)(j)
On October 31, 2007, a First Amended Sup-
plemental Petition (Child Protective Proceedings)
52a
was filed in this action, secking termination pre-
mised upon the same statutory basis as set forth
above, but alleging additional facts and circums-
tances as outlined in that amended Supplemental
Petition.
In separately reviewing each respondent’s
compliance with the various PAAs involved in this
case, the Court notes the following.
As to mother
She completed and cooperated. in the
referral evaluation done by the Oakl-
and County Psychological Clinic Al-
though she did miss her first ap-
pointment, she ultimately did appear,
attend and cooperate with Mr MaclIn-
tosh at the rescheduled appointment,
and the evaluation was completed as
of September, 2005
Mother was hospitalized on multiple
occasions during the pendency of these
proceedings, duo to her inability to
maintain stable mental heaith status.
These hospitalizations included at
least three separate hospitalizations
(some at Sinai Grace and others at
Havenwyck) since February, 2006
She attended nine Individual therapy
sessions between October 2005 and
February, 2006 at Haven.
She attended a Survivors of Domestic
Violence Support Group two times
through Haven
Mother continued, throughout the
pendency of the proceedings to have
difficulty following through with ap-
53a
pointments and maintaining mental
health stability.
As of April, 2006, she had only at-
tended 4 out of 10 Parenting Under
Stress Classes, and an exception was
sought and obtained 1n order to permit
mother to complete this training
As of July, 2006, she completed her
parenting skills classes through Cath-
olic Social Services.
When not incarcerated, mother has
maintained regular contact (at least
bi-weekly) with her treating psychiatr-
ist, Dr. Dabbagh, and self reported to
the doctor that she was being medica-
tion compliant.
However, 1n late 2006 or early 2007,
mother self reported to the case work-
er that she had once again begun
purging and was not always medica-
tion compliant
Mother reported attending an Eating
Disorders Support Group at Beaumont
Hospita!
She attended various classes and re-
ceived various services through do-
mestic violence shelters during her re-
sidency at the same
There were periods of time that moth-
er failed to exercise parenting time
with the children, either due to hospi-
talizations, incarcerations and/or due
to her inability to follow through and
implement steps necessary to facili-
tate her attendance at such parenting
time sessions
54a
When mother did attend parenting
time at St Francis, she was generally
reported to be very nurturing and to
have a close bond with the children,
and although she has (at various
times) made considerable progress in
demonstrating knowledge gained from
the various services provided. it is
clear from the record that she never
attained a functioning level (after
February, 2006) which would justify
return of the children to her care, giv-
en the considerable problems which
she still experienced 1n both her pa-
renting skills and ability to maintain
mental and emotional stability. Many
of these concerns are addressed in
greater length below.
As to father
He completed and attended the refer-
ral evaluation, as scheduled, through
the Oakland County Psychological
Clinic, and his evaluation by the clinic
was completed as of September, 2005.
He attended individual therapy with
Oakiand Family Services from No-
vember 30, 2005 until March 27, 2006.
According to Defendant’s Exhibit E,
this therapy was ended (not because
he met his treatment goals, but ra-
ther) because he would be continuing
therapy through Alpha Family Coun-
seling In father’s final progress re-
port generated by Oakland Family
Services, father was reported to have
attended all sessions and was found to
55a
have been making an effort with re-
gard to his treatment. In a February
28, 2006 letter generated by Oakland
Family Services, it was reported that
father was making progress toward
his goals (although the final report
merely reflected that an effort was be-
ing made), and it was recommended
that after he completed his individual
treatment, that the family engage in
family counseling to continue to ad-
dress issues which were effecting the
family.
He completed attending all of his pa-
renting classes, and achieved a score
of 100% on his post test. During pa-
renting time visits father was able to
demonstrate better control of the
children, as compared to periods pro-
dating his participation in the parent-
ing classes.
Ile attended all visits with the child-
ren and generally arnved either on
time or early for those visits For con-
siderable blocks of time, father was
able to demonstrate appropnate con-
duct with the children, however, con-
cerns which arose during’ visitations
shall be addressed elsewhere in this
opinion.
He completed his parenting skills
training through Alpha Family Coun-
seling in February, 2006 and contin-
56a
ued on with Alpha for individual coun-
seling with Ian Lloyd.”
- He completed his Domestic Violence
training program through Choices in
June, 2006
* He was compliant with the require-
ment that he maintain regular contact
with the worker assigned to the case
+ Father never provided DHS or St
Francis with the records relating to
his bankruptcy or proof of his income
* The Court notes that Ian Lloyd appears to have aligned him-
self with father, and may have lost sight of the issues which
father needed to have addressed, instead apparently focusing
on what father needed to do to extmcate himself from his rela-
tionship with mother, as opposed to gaining insight into his
own active behaviors and need for change relative to time vari-
ous issues which brought the children into care, as well as the
ongoing issues which were responsible for the children remain-
ing in care Nonctheless, given the level and extended nature of
services provided to father (and this family) in this action, with
regard to this failure in services the court 1s not of the opinion
that the same should be (1n and by itself) determinative of time
outcome in ths case The Court also notes that this Court
found Mr Lloyd's testimony to (at best) be unrehable and/or
incredulous The Court finds Mr Lloyd's testamony regarding
his August 1, 2006 report, which was in direct contravention
with his testimony to be disconcerting, as well as his unilateral
decision to ignore information provided as to father’s pnor d)-
agnosis of OCPD, simply because he didn't see symptoms of
this problem im the disclosures provided by father The Court
further notes that father admitted that he was famihar with
the DSM Clearly, father once aware of a diagnosis, and being a
medica) doctor, could choose to avoid disclosures which might
tend to support a diagnosis of a particular problem, as he con-
tinued his pattern of behavior intended to portray himself in
the best hght while he constantly tned to undercut mother and
minimize his responsibility for the conditions which brought
the children into care
57a
and financial stability. The mere fact
that father is (and/or was) employed
as an oncologist, does not (in and of it-
self) demonstrate financial stability.
- Father commenced treatment with Dr
Gonzales for OCPD in June, 2005, but
unilaterally terminated this treatment
in July, 2005.
Despite completing various service requirec-
ments, of key concern to this Court is the extent to
which each respondent has individually benefited
from the services provided
With regard to father, areas which indicated
that he has failed to ben: 4t from the services pro-
vided included, but were not limited to, father’ s con-
tinued discussion of issues relating to the case with
the children, as well as his failure to preclude other
members of his family from discussing such issues
with the children, all of which was in direct contra-
vention of specific orders of the Court prohibiting
such conduct. Of further concern was his conduct,
during parenting time, which indicated that he
might lack the ability to provide a nurturing envi-
ronment for the children Father’s decision to tape
record extended visits with the children certainly
calls into question his decision making ability, as he
failed to consider the impact that such conduct could
have upon the children. Father’ s inability to dispose
of items, correct deficiencies 1n the home (on a timely
basis) and place the need to support the children
over the need to retain worthless things 1s still dis-
concerting But, more importantly, father’s repeated
and continued use of physical and/or corporal pu-
nishment (such as grabbing Charlie’s arm [which
resulted in a referral to CPS], father’ s continued use
of “crabbing”, and an incident during the course of
58a
supervised parenting time when he forcibly placed a
child in a chair as a form of punishment} raise consi-
derable concern over the extent to which father has
been able to benefit from the services that had been
provided to him throughout the course of these neg-
lect proceedings. All of these concerns are then fur-
ther buttressed by the opinion of Dr Stulberg that
without father’s acknowledgment of how his con-
duct contributed to or otherwise caused the children
to come into care, the chance for recidivism remains
great.”
Although father completed all of the classes,
appeared timely for all of his visitations and was
able to improve his scores from his pro-test to his
post-parenting class test, concern continues to exist
as to father’s ability to (and the overall extent of)
his benefit from the services rendered.
Again, as already indicated above, much of the
Court’ s concerns relative to the extent of benefit de-
rived by father’s participation, stems from father’s
inability to accept any responsibility for the situation
he and his family found themselves in. When con-
fronted by his children about damaging behaviors 1n
which he had engaged, father was found to be dis-
honest, dismissive and tended to minimize both the
* Also of some concern was father’s failure to disclose and,
therefore, otherwise address his own behaviors which brought
the children into care Instead, 11 now appears from the testi-
mony of Ian Lloyd, that father continued to place the blame for
the family’s “disengagement” upon mother, and portray himsclf
as a passive victim of her mental illness which lead to his ina-
bilhty to address the children’s needs As a result, the underly-
ing “active” behaviors of father which contributed to and/or
otherwise fostered some cf the problems which lead to the
children being brought into (and/or remaining 1n care over an
extended penod of time) could not be appropnatcly addressed
through individual! therapy
59a
behavior itself and the adverse impact it had had on
the children.“ This was extremely upsetting to the
children Father also had unrealistic expectations
and little insight of the potential benefit of integrat-
ing suggestions made for improvement into his ac-
tual functionality with the children as well as the
risks associated with his failure to do so He ap-
peared to beheve that if he merely went through the
required steps that everything would be fine, as op-
posed to recognizing the need to identify and rectify
behaviors which led to the need for the children’s
removal.
During the initial period of family therapy, fa-
ther set up obstacles and other road blocks to
progress. He filed complaints regarding Dr. Stulberg,
alleging a HIPPA violation (as opposed to addressing
his own behavioral issues) ”
Ultimately, father’s HIPPA violation com-
plaint was dismissed, and father’s conduct only in-
hibited his own compliance and/or ability to benefit
from the advice and assistance which Dr. Stulberg
“ See People’s Exhibit 8 and testimony of Dr Stulberg
© The Court notes that DHS specifically selected Dr Stulberg
(from the preferred list of professionals) because father had ex-
pressed concerns regarding relhgion (and wanted someonc Jew-
ish), and because they were attempting to accommodate fa-
ther’s requests relative to educational level for the therapist
selected (and Dr Stulberg was both Jewish and had a PD )
The allegations regarding the HIPPA violation were filed by
father on or about June 15, 2006, but ultimately determined to
be unfounded Interestingly while father complained about the
presence of a CASA worker at the imitial goal setting meeting
with Dr Stulberg (which fermed the basis of his HIPPA viola
tion allegations), he later requested that the Court re-appoint a
CASA representative and permit that representative to attend
therapy sessions (which request was denied by order (dzeted
March 12, 2007)
60a
was attempting to provide for the benefit of the m1-
nor children
Father constantly pointed his finger at others,
as he tried to place the blame for the family’ s predi-
cament at the feet of others. Throughout father’s
testimony he minimized his own behaviors and con-
versely attempted to interject narrative answers
which attempted to place the blame for the family’s
predicament on others. Father’s failure to accept
responsibility and modify his own behavior jeopar-
dized father’s ability to change and/or address 1s-
sues in order to avoid their reoccurrence. As a result,
during parenting sessions problematic behaviors
would reappear Some of these troubling behaviors
included, but were not limited to, father’s use of
physical force to make Charlie sit down for a time
out even while still engaged 1n supervised parenting
at St. Francis), despite having been told that given
the reasons that the children came into care, no
physical force could be utilized to discipline the
children, as well as a situation where father grabbed
Charhe by the arms, such that a CPS report was is-
sued. Also of note to the Court was that father’s re-
sponse to the incident was to attempt to place the
blame for the incident upon the children and to
make them fecl badly for having disclosed the situa-
tion. Consequently, rather than taking responsibih-
ty, father made the children feel as if they were the
ones to be blamed for the family’s situation. ‘This
behavior continued in both direct and indirect ways.
Not only was it demonstrated by direct comments to
the children (such as the case with the disclosure by
the children regarding the above referenced alterca-
tion), but also 1n his punitive conduct toward Charlie
(who was the most vocal of the children regarding
6la
father’s assaultive behavior) in the implementation
of a point system.”
Father has continually attempted to undercut
the Court system and degrade mother, in his at-
tempts to place blame on others Additionally, he has
continued to and repeatedly discussed the case (in
front of the children) 1n inappropriate ways (in direct
violation of this Court’ s orders). .
From April 27, 2006 until July 20, 2006, fa-
ther refused to participate in family therapy and
during this period he simply didn’t show up for the
appointments. This was particularly upsetting to the
children. Additionally, during this period, he told the
children that he was “getting Dr. Stulberg off the
case”. At another time (in the fall of 2007) he in-
formed the children (in an attempt to undercut their
therapeutic relationship with Dr Stulberg) that Dr.
Stulberg had lied and that he had proof (which he
had himself authored) of such conduct. He further
attempted to convince the children that the reason
that they were removed from his care was for the
State’ s financial gain (and not because he had done
anything wrong) because the foster care system
makes $45,000 for each child they take *
Even during the course of this trial, father at-
tempted to place blame upon others, as opposed to
—
“ See People’s Exhihnt 8, report dated January 26, 2007
* Jody Romeo-Perez testified that father tried, at various
times, to have both Dr Stulberg and the CASA worker as-
signed to the case removed
“ As a result of this conduct father’s parenting time was sus-
pended The Court notes that dumng the course of these pro-
ceedings, father attempted to place the blame for his inappro-
pmate conduct and viclation of pmor court orders on Dr
Stulberg and Marvin, who 1s one of the minor children
62a
accepting any responsibility ” Issues raised regard-
ing the children’ s difficult behaviors, although being
acknowledged as troubling and problematic, are not
the focus of these proceedings. Rather, what 1s of
concern to this Court is whether respondent(s) can
correct their own past unacceptable negligent and
damaging behaviors so that they can take an active
and appropriate parental role in their children’s
lives
Throughout those proceedings father contin-
ued to deny that he ever engaged in assaultive beha-
vior, This 1s juxtaposed against a record that 1s rep-
lete with testimony regarding (and reports of) such
conduct having been engaged 1n by father As to con-
duct he didn’t directly deny, father continued to
place blame on others for the situations or otherwise
minimize his conduct. In this regard, Dr Stulberg
testified that when father was confronted by the
children with having “pad-locked” the refrigerator,
his response was “so what was the color of the pad-
Jock?” While having denied the occurrence during
the family therapy session, he admitted to having
once done so during the course of the trial.
When father was confronted by Hannah at his
having removed all of the light bulbs from light fix-
tures in her room, and having closed her in the room
while ignoring her cries, father had merely respond-
ed that “he wasn’t aware that she was afraid of the
* The Court notes that such behavior appears to permeate oth-
er areas of father’s hfe In his bankruptcy proceedings, father
certified that his petition fur relhef was accurate Later, in
pleadings dated November 10, 2006, he claims that the omis-
sion of assets valued at in excess of $70,000 was not his fault,
but instead the fault of his attorney. This theme 1s reiterated
by father in an additional motion in the bankruptcy proceed-
ings dated December 1, 2006 See People’s Exhibit 12/ Defen-
dant Exhibit HH
63a
dark” Yet during the course of the trnal, he denied
having engaged 1n such conduct.
Throughout the course of the family therapy,
Dr Stulberg asked father to supply her with pro-
posed “family rules”. Father didn’t do this until
December 12, 2006 Father now contends that he felt
he was appropriate in delaying submission of the
family rules because he wanted to formulate them
with the children. However, father fails to under-
stand or acknowledge the consequences of his con-
duct and the impact that such delays may have had
in delaying progress with therapeutic interventions
Father’s repetitive conduct in tending to mi-
nimize and explain away his problematic behaviors
clearly indicates that he fails to comprehend the
gravity of the behaviors and the adverse impact they
have had upon the children, which therefore increas-
es the likelihood that such behaviors will be re-
peated. In this regard, Dr Stulberg reported that:
. lam extremely concerned that
David has taken very little responsibil-
ty for ns abusive and neglectful beha-
vior, and continues to do so. Without
taking responsibility, understanding
the behavior and how it developed,
showing remorse, learning new skills,
fine-tuning and then testing these new
skills, there is a good chance that the
behavior will continue once the honey-
moon period is over with the children
and they test his patience, authority
and parenting on a consistent basis In-
deed, 1t took only a 12 hour visii where
there was an altercation between Han-
na and Charlie for Dr. Eilender to use
physical force Based on the abave men-
64a
tioned concerns and lack of change in
insight, responsibility and behavior
there is a high probability of recidivism
People’s Exhibit 8, Report of Octcher 26, 2006.
Not so dissimilar from mother, father also
placed the children in a parental responsibility role.
Where mother placed the children in the position of
having to parent each other as well as her, father
placed the children in a position of responsibility for
each other. In this regard, father placed the children
in the position of having to be responsible for deter-
mining whether Lillian was buckled into and/or oth-
erwise stayed in her car-seat. Often, his attention
would be directed to Lillian, and it appeared that she
was the only child with whom he could engage in a
loving and spontaneous interaction during the
course of visits, yet she was the child with whom he
evidenced the most problem in establishing and
maintaining appropriate boundaries
With regard to the issues of environmental
neglect, father had considerable difficulty in ac-
knowledging his contnmbution to (the deplorable)
condition of the home (and 1n fact continues to refuse
to accept responsibility for the same) Despite having
the chilcren removed from his care in May, 2005, he
acknowledged that he was unable to part with at
least two storage sheds of items, despite such items
having had no sentimental or monetary value.”
Based upon the testimony presented, it is clear to
the Court that the condition of the garage, tool shed,
areas of the basement, the study, and upstairs bed-
* As indicated elsewhere in this Opinion, father paid a consi-
derable sum to continue to store such worthless items during a
period when he claimed an inability to provide financial] assis:
tance for the benefit of the children
65a
room were clearly attributable to father, as were the
various failures to repair certain problems in the
home
In April, 2006, after mother had been absent
from the home since February, 2006, the home was
still found to have broken windows, the toilet (which
hadn’t been repaired even before father left the
home in October, 2005) still wasn’ t repaired, signifi-
cant amounts of trash were found to be present in
both the home and the garage, repairs were not ef-
fectuated to the kitchen floor, and the floors (having
been cleaned in preparation for the children’s re-
turn in July, 2005) were again in significant need of
attention. Additionally, the paint issues and draw-
ings on the walls that existed before the children
were removed in May, 2005 still had not been reme-
died, the kitchen was 1n need of cleaning, laundry
needed to be done and clothing put away for the
children’s benefit, smoke detectors needed to be put
in operating order, and clutter still needed to be re-
moved from various areas of the home (and particu-
larly the garage)
By August, 2006 some improvements to the
condition of the home had been effectuated, but the
issue of clutter and problems associated with the ha-
zardous level of items 1n with the garage (which was
clearly attributable to father) remained at issue."’ In
August, 2006 two screens still hadn’t been fixed
(and the reports reflect that father only proceeded to
fix them while the assessment was being done).” De-
spite repeated reminders of items which required at-
tention as of October 14, 2006 (although progress
had been made), numerous areas of concern (which
*” Which included (as reflected in father’s bankruptcy plead-
ings) two inoperable vehicles
“See People’s Exhibit 6.
66a
had been brought to father’s attention as requiring
repair before a recommendation for the return of the
children could be made) still had not been taken care
of by father “ As of the final home assessment, Ms
Smith (of St Francis) felt that the garage was still in
such a hazardous state that she would no longer
conduct assessments of its condition out of concern
for her own safety 1n doing so.
Dr Gonzales (who is not only a psychiatrist
and psychoanalyst, but also father’s witness) testi-
fied that in June, 2005 he diagnosed father with a
personality disorder Father was apparently referred
to Dr. Gonzales by father’s counsel in this case Dr.
Gonzales testified that father has Obsessive Com-
pulsive Disorder (“OCD”), with other traits, msing
to the level of being a personality disorder which
makes treatment difficult. Dr Gonzales shared this
opimon with father and told him that it would take a
considerable period of time in order to treat father’ s
OCD Father was advised by Dr Gonzales that he
needed help and also needed to take action, but fa-
ther was paralyzed and unable to take the necessary
steps to rectify his behavior because he couldn’ t or-
ganize himself to take action.”
“ See People’s Exhibit 6, October 14, 2006 report which still
outhnes three areas of concern before the return of the children
could be considered The Court notes that by this time, mother
had been absent from the home for almost 8 months (and well
over 182 days)
“ The Court notes that while the referral to Alpha Counseling
referenced the concerns regarding father’s diagnosis of OCD,
father failed, refused and/or otherwise neglected to disclose to
lan Lloyd that he had been so diagnosed or otherwise sought
treatment for such disorder, or to indicate that its believed this
to be an issue which Mr Lloyd would address, given the fact
that father had terminated treatment with Dr Gonzales on the
stated premise that he would be undergoing court ordered indh-
67a
Dr. Gonzales described father as a person
with very little insight, who was often surprised
when things happened because he could not see how
his participation or actions caused things to happen.
Given that lack of insight, he was unable to take re-
sponsibility for things that happened During the pe-
riod that father treated with Dr. Gonzales, father
made no progress.
Dr. Gonzales also described father as a person
who must keep all things under control and has no
capacity to address emotions. Dr. Gonzales opined
that addressing father’s OCD would be a long
process, as his disorder represented a long standing
way of functioning for father He described the cha-
racteristics of father’s disorder as being so deep-
seated that they even impacted the way he would get
dressed If you changed the order in which father
* was to get dressed, it would create panic and moving
items would create anxiety.
Dr. Gonzales also testified that father had
problems with changes in routine, which would
make parenting five children “tough” He described
father as a person who lacked flexibility to address
children’s needs, because he would become preoccu-
pied with the details and unable to see the big pic-
ture ~
vidual) therapy As a result, father’s dismissive and manipula-
tive behavior in failing to openly acknowledge and address un-
derlying problems made father his own worst enemy, which
essentially inhibited his ability to demve the necessary level of
benefit from the treatment being provided
“ Dr Gonzales’ opinion in this regard 1s 1n direct contravention
of that opined by Ian Lloyd, wherein Mr Lioyd felt that father
had the ability to learn and respond flexibly Since the Court
found Mr Lloyd's testimony not to be credible, the Court con-
cludes based upon a!) of the other testimony and evidence pre:
sented in this case, that Dr Gonzales (and not Mr Lloyd) was
68a
Dr Gonzales testified that, in his opimons fa-
ther would need close supervision to parent his five
children, and he would need in-home therapy, be-
cause it would be hke teaching him to walk again.”
Dr Gonzales felt that although father had the desire
to parent, he didn’t have the ability to parent and
would need significant assistance in learning the ne-
cessary skills to do so. In essence, father would need
treatment for his OCD as well as significant coach-
ing, in the home, to learn to parent his children In
Dr Gonzales’ opimon it would take years of therapy
to address father’s OCD issues, and at a minimum
one year of therapy. Despite father being advised by
Dr. Gonzales (a physician which father sought out
and treated with) that treatment would be a long
process, father ended his contact (and treatment)
with Dr Gonzales after only seven sessions.
During the course of his treatment of father,
Dr Gonzales indicated that father never gained in-
sight into how his conduct might have contributed to
the situation in which the family now found itself,
nor did he ever acknowledge (or otherwise indicate)
that he was abusive toward his family in any way “
correct 1n his assessment of father’s :mabality to be flexible and
to effectuate true change Moreover, Mr Lloyd did acknowledge
that if father had an obsessive compulsive personality disorder,
that such a trait would not make him amenable to treatment
and at best would require long term treatment to address the
same
* Again, the Court refers back to the testimony of Ms McCau-
ley, whom noted that during the penod that such services wero
being provided, father easentially chose to absent himself from
such services, choosing instead to work long hours and volunta-
nly not be present in the home when the services he so needed
were being rendered
* Although Dr Gonzales tended to doubt that father would
have been able to assert himsclf to even take physically abusive
action Following this treatment, father failed, refused and/or
69a
The Court notes that it found father’s testi-
mony (which was 1n direct contravention of the tes-
timony presented by Dr. Gonzales) not to be credible,
particularly the Court does not believe father when
he testified that he was never provided with any no-
tice of an OCD or OCPD diagnosis
Mr MaclIntosh testified that the form of OCD
suffered by father would be particularly difficult to
treat because persons with OCD, with narcissistic
tendencies, don’ t feel they have any problems. This
appears (from al! of the testimony) to be especially
true of father
The Court finds it noteworthy that father in-
dicated to Ms. Winter-Long, at the commencement of
has individual therapy through Oakland Family Ser-
vices, that he was then still receiving therapy
through Dr Gonzales for (situational) anxiety Dur-
ing his intake interview, not only was father less
than truthful about the reason for and period of
treatment with Dr Gonzales, but he also failed to
disclose information regarding his diagnosis of ob-
sessive compulsive personality disorder as well as
many other facts which might have permitted Ms
Winter-Long to address the underlying causes that
led to the children coming into care (environmental
otherwise neglected to address or otherwise acknowledge that
his use of physical discipline and/or domestic violence could
have been a contributing factor to the removal of the children
from his (and/or the parents’ care) when undergoing individual
therapy with Ian Lloyd Therefore, because of father’s faalure to
honestly address or disclose information to lan Lloyd, the plan
which father developed was not reality based, and tended to
exhibit father’s belief that if he could simply remove mother
from the care plan (via divorce) the problems which brought the
children into care would simply evaporate
70a
neglect being merely a symptom of the parties’ more
deep-seated psychological and emotional issues).”
The Court also notes that although certain of
father’s debts were discharged from bankruptcy on
or about April 16, 2007, father (throughout these
proceedings) failed, refused, or otherwise neglected
to provide DHS with evidence of the bankruptcy
and/or his income, in order to establish his ability to
provide financial stability and support for the child-
ren Father’s current earnings, as testified at trial,
are not material to the determination of whether, at
the time of the supplemental petitions father had
maintained financial stability.
More important to the analysis of whether an
ongoing potential for neglect exists, is the fact that
father has failed, refused and/or otherwise neglected
to provide for and/or otherwise support the children
during the course of these proceedings Despite nu-
merous orders of the Court, by father’s own admis-
sion (as contained in his December 1, 2006 Motion to
Voluntarmly Dismiss Chapter 7 case or, 1n the Alter-
native, to Convert Case to Chapter 13") he admits
that he failed to pay (as of that date) $19,361.92 in
Court ordered resmbursement (support) for the mi-
nor children, as reflected on Exhibit B, Schedule F,
to his Amended Declaration Concerning Debtor’ s
Schedules.
Concerns raised as to the benefit that mother
derived from the extensive services provided to
“Ms Winter-Long acknowledged that because their treatment
model was primaniy based upon self-reporting, the ability to
benefit from such treatment turns on the extent to which a per
son (accurately) discloses Again, and although she indicated
that third party information might be helpful, beneficial thera-
py really hinges on the clients ability and need to recall and
acknowledge problems tn order to adequatcly address them
” People’s Exhibit 12
Tla
mother occur on multiple levels. Mother had a great
deal of difficulty controlling herself and refraining
from discussing the case and/or making comments
about the case (or father) within earshot of the child-
ren, despite orders of the court precluding such be-
havior. It was not uncommon for mother to have a
great deal of difficulty separating from the children,
and she often became tearful and clingy, so much so
that she would create scenarios where the children
were encouraged to have to take care of her, as op-
posed to her engaging 1n behaviors that set her apart
from the children and placed her in the role of a par-
ent
From February 24, 2006 until April 3, 2006,
mother did not attend any parenting time visits with
the children. During this period, there were at least
three visits which were scheduled, for which mother
failed to call and failed to appear This conduct often
scared the children, who then would worry about
mother’ s safety
When mother was referred to Impact, it took a
considerable period of time for her to comply with
and attend those counseling sessions Between Octo-
ber, 2006 and January, 2007, mother attended 10
out of the 11 scheduled impact sessions, and from
January, 2007 until March, 2007, she only attended
one such session
During the period from January, 2007 until
March, 2007, mother was to see A.J. Kitchen for 1n-
dividual therapy. During this period, no progress by
mother was reported to have been made. In March,
2007, Sydney Smith (of St Francis) was finally able
to make contact with mother’s psychratmst, Dr.
Dabbagh, who although having treated mother since
February, 2006, was then still unaware that mother
had five minor children for whom she would be re-
sponsible for care
72a
With regard to the requirement that mother
obtain and maintain suitable housing, the Court
notes that from February 23, 2006 until August 14,
2006, mother essentially had no housing. During this
period she was either being treated 1n in-patient res-
idential care, lived 1n her car, or lived at various do-
mestic abuse shelters. Although mother was able to
secure an apartment in August, 2006 (with the assis-
tance of one of her adult children), as of August 24,
2006, mother had not obtained the necessary furni-
ture and furnishings to provide adequate housing for
the children in that apartment
Moreover, when St Francis attempted to con-
duct home assessments, three of these assessments
were cancelled by mother On the occasions when St
Francis could access the apartment to conduct an as-
sessment, mother was still having difficulty keeping
areas from getting cluttered.” After residing in the
apartment for approximately eight months, mother
moved to a hotel, which again placed her in a posi-
tion of being unable to provide adequate housing for
the children
Although the Court acknowledges that it took
a considerable period of time for mother to obtain
and receive support from father, it also notes that
the stated goal was for mother to be able to obtain
employment that would at least provide her with a
sufficient income to provide for some of the child-
ren’s most basic needs. From the records and testi-
mony presented, it doesn’t appear that mother was
ever able to achieve the level of mental or emotional
stability necessary for her to obtain (and maintain)
“ Sydney Smith testified that the clusets had become filled with
clutter to the extent that they were filled from the floor to the
ceiling and there would have been no place for the children to
then place their clothing and belongings
73a
such employment. Also of some concern to the Court
is that when she did obtain employment running er-
rands for a woman who suffered from a closed head
injury, the disabled woman was then placed in the
position of having to help mother out financially and
emotionally. As was so often demonstrated during
the pendency of the case, this employment further
reiterated mother’ s modus operand of placing those
for whom she had assumed a position of responsib ili-
ty of care, 1n the position of having to care for her
On a positive note, during the course of family
counseling mother (unlike father) was able to accept
responsibility for her neglectful behavior, including
her alcohol abuse, eating disorder, putting the child-
ren in the middle of her marriage, boundary and
personal space issues that forced the children to be
the adults and manipulative behavior including
whispering to the children during sessions to en-
courage them to tell Dr. Stulberg of father’s abusive
conduct However, mother often had to be repeatedly
reminded to discontinue many of these behaviors
(even after acknowledging that they existed and the
damage they had caused) as such behaviors resur-
faced during the course of the very same sessions
Although, at times, mother would make progress in
setting and respecting boundaries, she still had con-
siderable difficulties even when receiving direct su-
pervision and input from professionals *' Further,
although mother was thought to have made corsi-
derable progress in learning to define her role as a
parent and to differentiate herself from the children,
* On October 16, 2006, some five months after family therapy
was commenced, mother was still upsetting the chiidren by
sharing information regarding a medical condition for which
she placed blame upon father during the course of family ther-
apy sessions See People’s Exhibit 7
V4a
during the period of November 7, 2006 until January
9, 2007 mother again exhibited other disturbing and
disconcerting behaviors
It was during this period that mother made a
false police report regarding father which behavior
ultimately resulted 1n her conviction for the false re-
porting of a misdemeanor” and she also committed
perjury relating to testimony regarding father’s ac-
tions (resulting in a conviction in the 6th Judicial
Circuit Court)” Mother testified (and attempted to
justify her behavior) by indicating that she specifi-
cally falsified charges against father to keep him
from having parenting time with the children. In
mother’s mind her behavior was justified as she was
engaging 1n the same for the protection of her child-
ren
Although mother progressed to the point that
she was allowed unsupervised visits (when she was
able to demonstrate some ability to withhold certain
information from the children), mother remained so
emotionally fragile and unstable that all visits (even
those that were unsupervised) continued to occur at
St Francis, so that emotional support and parenting
assistance could be provided, as needed, throughout
the duration of these visits Often mother would ad-
mit to workers, following a visit, that she still didn’ t
feel confident in her ability to control the children,
and mother even testified that she still believed that
foster care was providing better care for her children
than she could provide Mother’s behavior, at vari-
ous times, was reported to be erratic. On one visit
the staff believed mother to have been intoxicated,
and on other visits she arrived late or not at all. Al-
though there were periods of marked progress
* See People’s Exhibit 9
~ See People’s Exhnbit 10
75a
(where mother’s conduct was appropriate and she
was punctual and appropriate) there were other pe-
riods were she appeared to digress and be unable to
generally function in an appropriate manner.”
When Dr. Stulberg witnessed mother’s beha-
vior and demeanor during the course of family ther-
apy (in April, 2007), she noticed a marked difference
in mother’s affect, and Dr Stulberg indicated that
mother was often (again) tearful and functioning at a
significantly reduced capacity (from that which she
had exhibited in January, 2007) Dr. Stulberg fur-
ther testified that after April 30, 2007, mother’s
compliance became problematic, and she failed to
appear at therapy meetings without any forewarn-
ing.”
During mother’s July 8, 2007 visitation with
Lewis, mother (who had recently undergone the re-
moval of her wisdom teeth), inappropriately told the
child that father had knocked her teeth out, it was
during this very same visit that mother told Lewis
that father had burned her and in the past tried to
put her (and on an earlier occasion Lewis) in the
oven.” Although Lewis was able to write the incident
“The Court notes, for the record, that it personally witnessed
such fluctuations during the extended course of these proceed-
ings, where mother would at times exhibit her inability to even
control herself within the confines of the Courtroom
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