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STATE OF MICHIGAN 

COURT OF APPEALS 

 

UNPUBLISHED 

In re W. HERZIG, Minor. October 6, 2016 

No. 330918 

Livingston Circuit Court 

 Family Division 

LC No. 2011-013731-NA 

 

Before: RIORDAN, P.J., and METER and OWENS, JJ. 

PER CURIAM. 

 Respondent-appellant (hereinafter “respondent”), mother of the minor child at issue, 

appeals as of right from an order of the family division of the circuit court terminating her 

parental rights to the child.1 We affirm. 

 This case began with a petition filed when the child was approximately one month old. 

The attached allegations included a summary of respondent’s history with Child Protective 

Services (CPS), which had culminated in termination of her parental rights to two children 

approximately 21⁄2 years earlier. The listing of current concerns set forth a recent term of 

incarceration, substance abuse, and mental health issues. The petition concluded with the 

recommendations that the child “be placed out of [the] home” and that “parental rights . . . be 

terminated.” Respondent pleaded to many of the allegations in an amended petition, and the trial 

court assumed jurisdiction over the child. 

 Respondent challenges the court’s assumption of jurisdiction with respect to her. “To 

properly exercise jurisdiction, the trial court must find that a statutory basis for jurisdiction 

exists.” In re BZ & KZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). This Court reviews the 

trial court’s decision in that regard “for clear error in light of the court’s findings of fact.” Id.

 MCL 712A.2(b) sets forth the criteria for a court’s assumption of jurisdiction over a child 

in child-protection cases. Under subsection (b)(1), jurisdiction is proper over a child 

 [w]hose parent or other person legally responsible for the care and 

maintenance of the juvenile, when able to do so, neglects or refuses to provide 

 

1

 The court also terminated the father’s parental rights, but he is not a party to this appeal. 
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proper or necessary support, education, medical, surgical, or other care necessary 

for his or her health or morals, who is subject to a substantial risk of harm to his 

or her mental well-being, who is abandoned by his or her parents, guardian, or 

other custodian, or who is without proper custody or guardianship. . . . 

Subsection (b)(2) authorizes a court to assume jurisdiction over a child “[w]hose home or 

environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a 

parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.” 

 In child-protection cases, 

[a]lthough the respondents are free to admit the truth of the allegations and relieve 

the prosecutor of the need to put forth proofs, the admissions do not establish the 

court’s jurisdiction. The court must make an independent determination of 

whether the allegations are sufficient to permit the court to assume jurisdiction 

over the matter. [In re Youmans, 156 Mich App 679, 684-685; 401 NW2d 905 

(1986).] 

 On appeal, respondent protests that almost the whole case against her involved past 

events, most predating the child’s birth. Petitioner correctly retorts that, under the doctrine of 

anticipatory neglect or abuse, past events relating to how a parent treated a child is competent 

evidence for purposes of determining the court’s jurisdiction in a new child-protection case. See, 

generally, In re LaFrance Minors, 306 Mich App 713, 730; 858 NW2d 143 (2014). 

Respondent’s admissions included her history with CPS, resulting in termination of her parental 

rights to two children. She admitted that she did not follow through with certain services 

pertaining to the earlier CPS case. Significantly, she admitted that she did not complete 

counseling and did not follow up with medication management for her mental health issues. 

 Respondent’s admissions relating to the time of the subject child’s birth and afterward 

included that, when the petition was filed, she lived with the child’s father and with three other 

persons who were involved in criminality, CPS investigations, or substance abuse, and at the 

time knew of the father’s criminal history as well as his outstanding warrants. Respondent 

further admitted that she had mental health issues as well as a history of substance abuse. 

Respondent acknowledged that she had been incarcerated for most of her pregnancy because of 

shoplifting, that she had difficulty following medical advice and appeared anxious, and that she 

had been observed by hospital staff outdoors in her hospital gown after having disconnected 

herself from an intravenous system and monitors. Respondent later clarified that she had been 

found outside wearing only her gown and with her “Foley bag” intact, that the latter was “like a 

catheter,” and that “I had everything in me, my IVs, and everything. I never disconnected 

everything and I took it with me. I walked outside and smoked.” Respondent admitted that a 

nurse reported that respondent had been given instructions on how to bathe her newborn but did 

not do so properly, because she was “holding [the baby] over the basin and the umbilical cord 

was wet[.]” Respondent additionally admitted telling a CPS worker upon the birth of the child 

that she was unemployed and had no income. Respondent acknowledged that she had been 

diagnosed with “anxiety, depression, severe bi-polar, borderline personality, and ADHD,” for 

which she was prescribed several medications. Nevertheless, respondent agreed that recent drug 

screens were negative for all substances, including prescription medicines. She admitted 
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reporting that she was not taking her medications because of pregnancy and breastfeeding, but 

later stated that she was not breastfeeding. 

 A CPS worker testified at the plea hearing that she had learned during her investigation 

that respondent and the father had no income to support the child and no safe, stable housing. 

The worker also testified that respondent had been suicidal in December 2013. 

 We find no clear error in the trial court’s finding that “the factual basis for the plea is 

established by testimony of . . . [the] parents and the [CPS] worker.” The doctrine of 

anticipatory neglect was highly relevant in this case, where respondent lost her parental rights to 

other children in part because of a failure to address her mental health issues. Further, 

respondent had current and serious mental health issues that were not being properly treated. In 

addition, she had recently spent a significant period in jail, she admitted an absence of 

employment and income, and she resided with persons with troublesome issues. At a minimum, 

due to respondent’s past and present issues, the child was “subject to a substantial risk of harm to 

his or her mental well-being,” MCL 712A.2(b)(1), and had an unfit home, MCL 712A.2(b)(2). 

 Respondent argues that there was no basis for removing the child from the home under 

MCL 712A.14b.2

 Contrary to respondent’s argument, she did not preserve this issue below; she 

made no objections to the issuance of the removal order. We review unpreserved issues for plain 

error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). 

 Respondent focuses her argument on the language in MCL 712A.14b indicating that an 

emergency removal pending a preliminary hearing can take place only if immediate removal is 

necessary to protect the child. She emphasizes that CPS workers allowed the child to live in 

respondent’s home for approximately three weeks before removing him, stating that “waiting 

nearly three weeks to take action . . . makes a mockery of the concept of an emergency.” We 

find no plain error on this record, for three independent reasons. First, according to respondent, 

the child was removed on February 12, 2015. The initial petition stated, along with various other 

allegations, that petitioner received, on that date (February 12, 2015), notes from a social worker 

regarding respondent’s purported decision to breastfeed the child. This was important because it 

intertwined with respondent’s need to take psychiatric medication.3

 It is plausible that this 

information was the final straw that pushed petitioner to take action regarding the emergency 

removal.4

 Second, respondent herself admitted during the preliminary examination that workers 

for petitioner had told her that they were performing an investigation before deciding whether to 

remove the child. This was a reasonable decision on the part of the workers. Finally, merely 

 

2

 We note that the preliminary hearing commenced less than 3 1⁄2 hours after the court made the 

MCL 712a.14b removal ruling. 

3

 Respondent stated that “they didn’t want me to breastfeed” because of her need to take 

medication. 

4

 Respondent reported bottle-feeding the child on February 7, 2015, but there was, at least 

initially, a dispute over this issue, in light of the social worker’s report. 
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because removal may have been warranted even earlier does not automatically mean that the 

removal that did occur was unwarranted. Given respondent’s history and current issues, the 

removal decision was reasonable and no plain error is apparent.

 Respondent next argues that the trial court erred in finding grounds to terminate 

respondent’s parental rights. An appellate court “review[s] for clear error . . . the court’s 

decision that a ground for termination has been proven by clear and convincing evidence . . . .” 

In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000), superseded in part by statute 

on other grounds as recognized by In re Moss, 301 Mich App 76, 83 (2013); 836 NW2d 182 

(2013). “Clear error exists when some evidence supports a finding, but a review of the entire 

record leaves the reviewing court with the definite and firm conviction that the lower court made 

a mistake.” In re Dearmon, 303 Mich App 684, 700; 847 NW2d 514 (2014). This Court must 

give regard to the trial court’s special opportunity to observe the witnesses. Id. 

 MCL 712A.19b(3)(j) provides: 

 (3) The court may terminate a parent’s parental rights to a child if the 

court finds, by clear and convincing evidence, 1 or more of the following: 

* * * 

 (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. 

 The trial court had before it the pertinent information regarding respondent’s prior CPS 

case that resulted in the termination of her parental rights to two other children. In that case, 

respondent demonstrated a serious problem with illegal drugs and problems with her mental 

health. She failed to make meaningful progress with services, and the trial court found a 

reasonable likelihood that the children would be harmed if returned to her care. In the present 

case, at the hearing on December 14, 2015, a foster-care worker, Shayna Chapman, testified that 

even though respondent had been prescribed medication for her mental health, she had many 

drug screens that tested negative for all substances. Chapman explained that this “raised [a 

concern] that . . . she wasn’t taking the medication as prescribed[.]” Chapman also stated that 

respondent missed multiple screens and had not presented for a random screening since August 

2015. In addition, respondent failed to follow the recommendations made after a psychological 

evaluation. According to Chapman, respondent claimed that she was involved in individual 

counseling, but could only provide the first name of the counselor, did not state where the 

counselor worked, and provided no documentation related to this counseling. Chapman further 

stated that respondent was not able to “take the cues from the baby” during parenting time and 

had missed a medical appointment for the child. Respondent had expressed an interest in online 

parenting classes but never followed up on it. 

 At the continued hearing on December 15, 2015, Chapman testified that in the earlier 

CPS case, respondent’s parental rights had been terminated “because of serious and chronic 
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neglect.” Chapman stated that, in the present case, there was a reasonable likelihood that the 

child would be harmed if returned to respondent’s care. 

 Given respondent’s CPS history, her failure to make progress with services in the prior 

case, her current mental health problems and failure to comply with treatment plans, the issues 

with her drug screenings, and the issues during parenting time, the trial court did not clearly err 

in finding that petitioner established the basis for termination set forth in MCL 712A.19b(3)(j) 

by clear and convincing evidence. “Only one statutory ground for termination need be 

established,” In re Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d 144 (2012), and we 

therefore do not need to address the additional grounds cited by the trial court.5

 

 Respondent argues that the trial court erred in determining that termination was in the 

child’s best interests. An appellate court “review[s] for clear error . . . the court’s decision 

regarding the child’s best interest[s].” In re Trejo Minors, 462 Mich at 356-357. 

 “If the court finds that there are grounds for termination of parental rights and that 

termination of parental rights is in the child’s best interests, the court shall order termination of 

parental rights and order that additional efforts for reunification of the child with the parent not 

be made.” MCL 712A.19b(5). In explaining its best-interests determination, the trial court 

noted that the child was 11 months old and doing very well in foster care. The court additionally 

noted that respondent had failed to comply with her service plan and had a “demonstrated 

inability” to put the needs of the child before her own. The court further stated that it was not in 

the child’s best interests “to spend years in foster care to see when or even if his parents can be 

rehabilitated.” 

 In arguing this issue, respondent does not attack these specific findings, but, consistent 

with how she framed this issue in the statement of questions presented for appeal, instead 

complains that she was stripped of her ability to establish a bond with the child because he was 

taken from her when only one month old. At issue, however, is whether the court correctly 

assessed the child’s best interests, not whether the circumstances of the child’s removal disrupted 

respondent’s rights. Respondent is essentially asserting that, because she was deprived of an 

opportunity to establish a bond with the child, it was impossible to evaluate what sort of bond 

may have come about. However, respondent cites no authority for the proposition that a court 

cannot determine best interests in connection with a parent who, for whatever reason, has had no 

opportunity to establish a bond with a child. 

 Because respondent’s argument leaves unchallenged the court’s pertinent best-interests 

findings, respondent has failed to show that the trial court clearly erred in concluding that 

termination of her parental rights was in the child’s best interests. 

 

5

 We nevertheless briefly note that the record clearly and amply supported termination under 

MCL 712A.19b(3)(i), and respondent’s argument pertaining to this subsection’s constitutionality 

is unavailing. 
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 Affirmed. 

/s/ Michael J. Riordan 

/s/ Patrick M. Meter 

/s/ Donald S. Owens