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Michigan Court of Appeals Upholds Termination of Parental Rights Where Mother's Boyfriend Abused Child

The Michigan Court of Appeals upheld the Monroe County Circuit Court's order terminating parental rights of a mother to her two children where her boyfriend was the perpetrator of child abuse. In re Messer/Sawyer Minors, unpublished per curiam opinion of the Court of Appeals, issued August 16th, 2018 (Docket No. 341381). Although there was no evidence whatsoever that the mother, Amie Messer, personally abused any of her children, the trial judge did not err in determining that the termination of parental rights to her son and daughter was appropriate.

Amie Messer's life was one that was struck with tragedy. In 2003, she married Christopher P. Messer and subsequently gave birth to a daughter. However, her husband was killed in action during a military campaign in Operation Iraqi Freedom in 2006 and left her a very young widow. She later began a relationship with Aaron Sawyer and gave birth to a son in 2012. Unfortunately, that relationship terminated in 2014 after Mr. Sawyer was incarcerated for criminal offenses related to his controlled substance abuse.

Ms. Messer later began a relationship with Mark Osborn and they began residing together by the beginning of 2015. Mr. Osborn began providing part-time child care to her two children while she was not at home. The relationship was serious enough that Ms. Messer and Mr. Osborn celebrated a "commitment ceremony" in summer of 2016 to declare the permanence of their relationship to the world (a formal marriage would have terminated Ms. Messer's Veterans Administration benefits she received as a result of her husband having been killed in action). Ms. Messer apparently had no concerns whatsoever about the safety of her children in Mr. Osborn's care.

The reality of the situation was that Mr. Osborn was physically assaulting her son on a continual basis over a year and a half. There were warning signs that something was going on. In winter of 2016, her son's body was afflicted with unexplained bruising. A few months later, there was an injury to the boy's collarbone. A few months after that, in the summer of 2016, medical officials noticed even more bruises, in different stages of healing, on the boy's legs, arms and back. Child Protective Services (CPS) investigated the injuries, but could not substantiate abuse.

Finally, in the spring of 2017, Ms. Messer brought her son to the hospital after he began displaying extremely strange and alarming behavior (e.g. thrashing around the bed, could not speak and could not move left side of his body). After an examination, the doctors found that he suffered from "subdural hematoma, brain shrinkage and bowel perforation". The doctors concluded that the injuries, which were extremely life-threatening, were the result of direct, high-impact blows. There was also evidence from calcium build-up that the boy had sustained previous injuries that have self-healed but were likely very painful at the time they were inflicted. Ms. Messer claimed that the injuries were the result of playful roughhousing despite the doctor's opinion of suspected abuse. Ms. Messer further could not believe that Mr. Osborn was the source of these injuries and continued to allow Mr. Osborn to visit the child in the hospital during his two-month stay. Despite receiving information from her daughter and several other family members that they suspected abuse by Mr. Osborn, she still continued that relationship.

The Michigan Department of Health and Human Services (DHHS) filed a petition to remove both children from Ms. Messer's care. In November 2017, at the conclusion of a child protective proceedings trial, Judge Cheryl E. Lohmeyer terminated the parental rights of Ms. Messer to both of her children. Contemporaneously, both Ms. Messer and Mr. Osborn were prosecuted in the criminal division of the Monroe County Circuit Court on child abuse charges. Mr. Osborn pled guilty to first degree child abuse and was sentenced to 12 years in state prison on June 24th, 2018. Ms. Messer pled guilty to second degree child abuse and was sentenced to one year in the county jail, followed by five years of probation, on July 5th, 2018. Her son survived his severe injuries but will likely live the rest of his life with irreversible damage done to his body.

Ms. Messer appealed the trial court's decision to termination her parental rights to the Michigan Court of Appeals. She argued that the trial court erred in finding grounds to terminate her rights because she did not perpetrate any physical abuse against her son and had no knowledge that Mr. Osborn was causing any abuse. She further argued that the trial court erred in finding it was in the best interests of her children to terminate her rights when they were already in the care of relatives that she continued to have a relationship with. Additionally, she argued that she could have engaged in services with DHHS upon her release to rectify the conditions at home, after which the children could return safely to her care.

A trial where a judge must decide whether or not to terminate parental rights has two stages. In the first stage, the petitioner (DHHS) must prove that one or more of the factors, also called "statutory grounds" listed under MCL 712A.19b(3), by clear and convincing evidence. Specifically in this case, the trial court found the following grounds were proven by DHHS:

  • "(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:

(i) The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent's home.

(ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent's home.

(iii) A nonparent adult's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse by the nonparent adult in the foreseeable future if placed in the parent's home.

  • (g) The parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
  • (j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent."

It is sufficient for the petitioner to prove only one statutory ground by clear and convincing evidence to get to the second stage. The trial judge found that, although Ms. Messer did not actually perpetrate the physical abuse, she had knowledge that it was occurring under her own roof. Ms. Messer's testimony was contradicted by her own daughter's testimony that she told her mother about her suspicions of child abuse. Additionally, Ms. Messer was found to have used marijuana in the presence of her children, skipped medical appointments and had little insight into her children's academic performance. Furthermore, the Court found that Ms. Messer's "past behavior is the best predictor of her future ability to care for the children." Despite being presented with evidence of physical abuse, Ms. Messer not only ignored it but tried to explain it away to CPS workers and medical personnel as accidental injuries. The Michigan Court of Appeals determined that the trial judge had adequate evidence to find any one of the statutory grounds as proven so there was no error.

The second phase of the termination trial is where the trial court must decide whether it is in the best interests of the children for the parent's rights to be terminated. The petitioner (DHHS) only has to prove that it is in the best interest to terminate rights by a preponderance of the evidence. The types of factors that the trial court can consider for the best interests standard include, but are not limited to:

  • The child's bond to the parent
  • The parent's parenting ability
  • The child's need for permanency, stability and finality
  • The advantages of a foster home over the parental home
  • The parent's history of domestic violence
  • The child's well-being in foster care or relative placement
  • The possibility of adoption
  • The child's age
  • The opinions of experts such as psychologists, therapists, the foster care caseworker and the lawyer-guardian ad litem
  • The child's wishes if a sufficient age to express them
  • The child's relationships with extended relatives
  • The child's special needs, if any
  • Ethnic and cultural considerations
  • The length of time that the child has been in foster care
  • The bond that exists between siblings (although the court must consider the best interests of each child individually)

Ms. Messer opined that the children were very bonded to her and that the children were safe in relative placements, so there was no harm in allowing her to complete DHHS services to facilitate reunification. The trial court determined that the parent-child bond with the son was exaggerated by Ms. Messer (given that he called her by her first name and became "upset anytime he retuned to her care"). The bond with her daughter was also damaged because of Ms. Messer's refusal to believe that Mr. Osborn was causing harm to her sibling. While the placement of children with relatives is a factor that usually weighs against termination of parental rights (due to the ongoing extended family relationship), that fact was outweighed by Ms. Messer's "intentional ignorance" of the situation at home that led to life-threatening injuries. While Ms. Messer did eventually end the relationship with Mr. Osborn, she had testified that it was due to her personal issues with him and not because of the abuse caused to her son. The trial court determined that there was "no reasonable possibility that [the mother] could rectify these deficiencies in the future such that she will be able to provide the children with a safe and appropriate home". The Michigan Court of Appeals upheld the judge's decision. Ms. Messer's only remaining legal remedy is to file an application with the Michigan Supreme Court and ask them to overturn the decision.

This case is a message to parents that they can't display ignorance to the physical or sexual abuse affecting the children in their home and not expect severe consequences. Parents have a duty to protect their children and the existence of abuse in the home is a failure of that duty, even if that parent is not the perpetrator. It is true that the parent might never see or hear the abuse for themselves, but there is an absolute duty to act upon the information when it is presented to them, even if it is from another child. The primary goal of child protective proceedings is not to protect the rights of the parents, but rather to protect the child from an environment that is physically, mentally and/or emotionally damaging. Parental rights are a fundamental constitutional right and should not be infringed upon without good cause, but parents are also adults who are free to make their own decisions and should have to answer for those choices. Children do not have a choice and are truly the victims in these situations because they cannot defend themselves. The parent MUST be the defender, much like a mother bear will protect her cubs from danger at all costs. A parent that looks in the other direction despite knowledge of abusive behavior is just as complicit as the perpetrator. In fact, that parent may be EVEN MORE complicit as inaction is akin to approval.

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