in Re olive/metts Minors ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In the Matter of OLIVE/METTS, Minors. July 30, 2015
No. 323921
Wayne Circuit Court
Family Division
LC No. 07-473724-NA
Before: WILDER, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.
PER CURIAM.
Respondent father appeals as of right from the trial court’s order terminating his parental
rights to the children under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to
exist); (c)(ii) (other conditions exist that have not been rectified), (g) (failure to provide proper
care or custody); (h) (parent imprisoned and children deprived of normal home for more than
two years); and (j) (children will be harmed if returned to parent’s home).1 We affirm.
Respondent first argues that the trial court violated his constitutional and statutory rights
by placing his children in foster care, requiring him to comply with a treatment plan, and
terminating his parental rights, without adjudicating his fitness as a parent. “Whether child
protective proceedings complied with a parent’s right to procedural due process presents a
question of constitutional law, which we review de novo.” In re Sanders, 495 Mich. 394, 403-
404; 852 NW2d 524 (2014). “[D]ue process requires that every parent receive an adjudication
hearing before the state can interfere with his or her parental rights.” Id. at 415. Once a statutory
ground for termination has been proven, the trial court must find by a preponderance of the
evidence that termination is in the child’s best interests before it can terminate parental rights. In
re Moss, 301 Mich. App. 76, 90; 836 NW2d 182, lv den 495 Mich. 856 (2013).
The children came into care because of abuse and neglect by their mother and
respondent’s inability to care for them because of his incarceration. An adjudication hearing was
held May 19, 2011, where the mother pleaded no contest to allegations in the petition that
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The parental rights of the children’s mother were terminated under a separate order, which this
Court affirmed with regard to the two children at issue in this appeal. In re Olive/Metts, 297
Mich. App. 35; 823 NW2d 144 (2012).
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concerned her. Respondent argues that he did not receive an adjudication finding for his ability
to care for his children. Specifically, respondent argues that the one-parent doctrine, focusing on
the mother’s inability to care for the children, should not apply and her inability should not
deprive him of his parental rights. The Supreme Court has determined that the one-parent
doctrine is unconstitutional. In re Sanders, 495 Mich. at 401. However, contrary to respondent’s
argument, the trial court also adjudicated his parental fitness at the May 19, 2011 hearing, where
respondent testified that he was unable to care for his children due to his incarceration. The trial
court found that the children came within its jurisdiction based, in part, on respondent’s
admission. Furthermore, the one-parent doctrine was not applied here since the court determined
the respondent’s ability to care for the children separate from the mother’s. Respondent’s
argument that his parental fitness was not adjudicated is without merit.
Respondent next argues that the trial court erred in finding that petitioner made
reasonable efforts to reunite him with the children. The trial court’s findings of fact, including a
finding that the petitioner made reasonable efforts toward reunification, are reviewed for clear
error. In re Fried, 266 Mich. App. 535, 541-543; 702 NW2d 192 (2005). A decision is clearly
erroneous only when this Court “is left with a definite and firm conviction that a mistake has
been made.” In re Mason, 486 Mich. 142, 152; 782 NW2d 747 (2010) (quotation marks and
citations omitted). Generally, the “petitioner must make reasonable efforts to rectify conditions,
to reunify families, and to avoid termination of parental rights.” In re LE, 278 Mich. App. 1, 18;
747 NW2d 883 (2008); MCL 712A.18f; MCL 712A.19(7); see also MCL 712A.19b(5). “The
state is not relieved of its duties to engage an absent parent merely because that parent is
incarcerated.” Mason, 486 Mich. at 152.
The trial court did not clearly err in its findings of fact. The evidence in this case showed
that petitioner did make reasonable efforts to reunite respondent with the children. Respondent
argues that petitioner is required to facilitate “regular visits or contact” between him and the
children. Respondent argues no facilitation occurred because no face-to-face visits occurred.
However, respondent did have contact with the children through regular phone conversations
that petitioner arranged. Respondent has failed to provide any authority that contact must be
face-to-face.
Furthermore, petitioner investigated the relatives that respondent suggested as possible
placements for the children during his incarceration. Respondent argues that there is no record
that petitioner followed up with the suggested relatives. This Court’s review of the record
clearly indicates petitioner attempted to contact respondent’s brother multiple times, however
was unable to reach him. Respondent also argues that petitioner made “hasty” decisions
regarding the possible placements with relatives. Specifically, respondent stated that Ms. Kelly
Burdell, a foster care worker, “ignored and disregarded” respondent’s possible placements
because the possibility of relative placements did not sway her recommendation for termination.
However, respondent’s argument of Ms. Burdell’s interpretations is inaccurate and taken out of
context. After actually visiting and investigating the home of a possible relative placement and
speaking with another foster care worker who visited the home of another possible relative
placement, Ms. Burdell determined she did not think the homes were fit for children with special
needs. Furthermore, Ms. Burdell felt the relatives were only recently coming forward, had never
been in the children’s lives before, and did not know the severity of the children’s needs. Thus,
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the possible placements with those relatives did not change her professional opinion for
termination.
In addition, petitioner sent respondent a copy of his treatment plan on at least three
occasions. Respondent also had the opportunity to be present, at least by telephone, at all stages
of the proceedings. Given the circumstances, the trial court did not clearly err in finding that
petitioner made reasonable efforts to reunite respondent with the children. Moreover, we note
that the trial court did not terminate respondent’s parental rights on the basis that he failed to
comply with the treatment plan. Rather, the court noted that respondent complied with the plan
to the best of his ability, but concluded that termination was nevertheless warranted because
respondent was unable to provide proper care or custody for his children during his
incarceration. Respondent has not shown clear error in the trial court’s findings regarding
petitioner’s reasonable efforts to reunite him with the children.
Respondent next argues that the trial court clearly erred in finding that a statutory ground
for termination was proven by clear and convincing evidence. To terminate parental rights, a
court must find “clear and convincing evidence that one or more of the statutory criteria are
met.” In re Rood, 483 Mich. 73, 101; 763 NW2d 587 (2009). This Court reviews a trial court’s
finding that statutory grounds for termination exist under the clearly erroneous standard. MCR
3.977(K); In re Trejo, 462 Mich. 341, 356-357; 612 NW2d 407 (2000). “A finding of fact is
clearly erroneous where the reviewing court is left with a definite and firm conviction that a
mistake has been made.” In re Terry, 240 Mich. App. 14, 22; 610 NW2d 563 (2000).
The trial court did not clearly err in finding that the statutory grounds for termination set
forth in MCL 712A.19b(3)(c)(i), (g), (h), and (j) were proven by clear and convincing evidence.
MCL 712A.19b(3)(c)(i) states that the court may terminate a parent’s rights to a child if
“[t]he conditions that led to the adjudication continue to exist and there is no reasonable
likelihood that the conditions will be rectified within a reasonable time considering the child’s
age.” Respondent had been incarcerated since 2008. At the adjudication hearing in May 2011,
respondent testified that he was incarcerated, with an earliest release date in August 2014, and he
was unable to care for the children. At the time of the permanent custody hearing, which took
place from May through July 2014, the evidence showed that respondent remained in prison, had
received 32 misconduct citations while in prison, had recently been denied parole, and would
next be considered for parole in the summer of 2016. Respondent admitted that he was not
personally able to care for the children because of his incarceration. The relatives that
respondent had suggested as placements for the children either were not suitable or were not
available. The foster care worker testified that it was not appropriate for the children to have to
wait another two years for permanency and stability. Thus, the condition that led to the
adjudication continued and was not likely to be rectified within a reasonable time frame. Given
the age and needs of the children, the trial court did not err in finding statutory grounds for
termination under MCL 712A.19b(3)(c)(i).
MCL 712A.19b(g) states that the court may terminate a parent’s rights if “[t]he parent,
without regard to intent, fails to provide proper care or custody for the child and there is no
reasonable expectation that the parent will be able to provide proper care and custody within a
reasonable time considering the child’s age.” As stated above, respondent admitted inability to
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provide care and custody for the children while he was incarcerated, and the suggested relatives
were not suitable or available to provide proper care and custody for the children. The record
indicates this would likely not change in a reasonable time. Therefore, the trial court did not err
in applying MCL 712A.19b(g) as an appropriate statutory ground for termination.
A court may terminate a parents rights under MCL 712A.19b(h) if:
The parent is imprisoned for such a period that the child will be deprived of a
normal home for a period exceeding 2 years, and the parent has not provided for
the child's proper care and custody, 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.
The adjudication hearing took place in May 2011. In July 2014, it was determined that
respondent’s earliest possible parole date would be August 2016. This exceeds the two
year statutory period. The foster care workers determined given the children’s age and
special needs, the children needed stability and permanency before, at best, another two
years passed. Thus, the trial court did not err in applying MCL 712A.19b(h).
MCL 712A.19b(j) allows for the termination of a parent’s rights if “[t]here 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.” Respondent was
in prison for assault with intent to do great bodily harm less than murder after shooting
the victim in the leg. Respondent was a fourth habitual offender. Furthermore, while in
prison respondent was segregated from the rest of the prison population after 32
misconducts incidents. Based on these facts, the trial court did not err in finding there is
a reasonable likelihood the children would be harmed if placed back in the home of
respondent.
However, the court did clearly err in finding MCL 712A.19b(3)(c)(ii) as
grounds for termination, which states the court may terminate a parent’s rights if:
Other conditions exist that cause the child to come within the court’s jurisdiction,
the parent has received recommendations to rectify those conditions, the
conditions have not been rectified by the parent after the parent has received
notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that he conditions will be
rectified within a reasonable time considering the child’s age.
It was determined at the adjudication hearing that respondent was not able to personally care for
his children due to incarceration. No additional conditions arose that needed to be rectified by
respondent after adjudication, and thus, this section would not apply. Although the trial court
erred applying this section, that error was harmless where other grounds were clearly established.
In re Huisman, 230 Mich. App. 372, 384-385; 584 NW2d 349 (1998), overruled in part on other
grounds, In re Trejo, 462 Mich. at 352-353, n 10.
The trial court also did not clearly err in its determination that termination of
respondent’s parental rights was in the children’s best interests. MCL 712A.19b(5). While there
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was evidence that respondent loved the children and made efforts to be involved in their lives to
the extent possible, there was clear evidence that he had been unable to provide care for them
since they were brought into care in 2011, and that he would remain unable to do so in the
foreseeable future. Although respondent suggested his brother and aunt as possible placements
for the children during his incarceration, the relatives were evaluated and found to be either
unavailable or unsuitable. Considering the ages of the children and their special needs, the court
did not clearly err in finding that the children’s need for permanence and stability outweighed
any bond with respondent.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Douglas B. Shapiro
/s/ Amy Ronayne Krause
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