in Re Merriman Minors ( 2019 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re MERRIMAN, Minors. January 3, 2019
No. 344114
Hillsdale Circuit Court
Family Division
LC No. 16-000479-NA
Before: SWARTZLE, P.J., and SAWYER and RONAYNE KRAUSE, JJ.
PER CURIAM.
Respondent-mother appeals as of right the trial court’s order terminating her parental
rights to the minor children AM, RM, and TM under MCL 712A.19b(3)(c)(i) (conditions of
adjudication continue to exist), (j) (reasonable likelihood that children will be harmed if returned
to the parent), and (n)(i) (conviction of an enumerated crime).1 Respondent does not challenge
the trial court’s findings that the above grounds for termination were satisfied. Rather, she only
challenges the trial court’s finding that termination was in the children’s best interests. We
affirm.
I. FACTUAL BACKGROUND
In July of 2016, the Department of Health and Human Services (DHHS) filed petitions
seeking jurisdiction over the children, alleging that TM was born positive for THC, respondent
repeatedly tested positive for methamphetamine and THC; respondent and her boyfriend, Jeremy
Barron, had engaged in multiple domestic violence incidents; the children had been left
unsupervised for extended periods and one of the children nearly drowned in a lake; the children
were going unfed; mother and her boyfriend used drugs and alcohol heavily; and the children
were afraid of Barron. The children’s father was incarcerated at the time. After the children
were taken into custody, respondent began engaging in therapy and services, making some
progress despite continued positive drug screens. In April of 2017, respondent was arrested for
the murder of Barron. She eventually pled guilty to second-degree murder for her role in
Barron’s death, which was an execution-style slaying in which she participated along with
1
As of June 12, 2018, MCL 712A.19b(3)(n) is now designated as MCL 712A.19b(3)(m). See
2018 PA 58.
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another boyfriend, Jay Clark.2 Thereafter, the trial court and DHHS changed their goals from
reunification to termination. In January of 2018, respondent was sentenced to 25 to 40 years’
imprisonment. The trial court held a hearing during which it took extensive testimony, and it
concluded that the above statutory grounds were established and that the children would be
endangered by remaining in respondent’s care. It therefore ordered respondent’s parental rights
terminated, and this appeal followed.
II. STATUTORY GROUNDS FOR TERMINATION
Because respondent does not challenge the trial court’s determination that statutory
grounds for termination were established, we may assume that the trial court did not clearly err
in making that determination. In re JS and SM, 231 Mich. App. 92, 98-99; 585 NW2d 326
(1998), overruled in part on other grounds by In re Trejo Minors, 462 Mich. 341, 353; 612 NW2d
407 (2000). While we are concerned that the trial court may have improperly considered the fact
that respondent was a victim of domestic violence, In re Plump, 294 Mich. App. 270, 273; 817
NW2d 119 (2011), it is clear from the record that any improper concern with respondent’s
victimization was at most peripheral. Rather, the children were severely traumatized by repeated
instances of exposure to domestic violence, some of which they witnessed and some of which
were perpetrated directly against the children by respondent herself. The children were also
traumatized by instability in their lives, respondent’s use of drugs, and respondent’s apparent
disinterest in caring for the children or protecting them from harm despite opportunities to do so.
Respondent’s continued inability to provide a safe and healthy environment for the children, her
continued use of illegal and dangerous drugs, and her continued engagement in her own acts of
violence are all proper concerns.
In any event, only one statutory basis for termination is sufficient. In re HRC, 286 Mich
App 444, 461; 781 NW2d 105 (2009). The primary factual predicate for MCL
712A.19b(3)(n)(i), conviction of an enumerated crime, was clearly established by respondent’s
guilty plea to second-degree murder. The trial court did not clearly err in also finding that the
children would be harmed by a continued parent-child relationship with respondent.
We are not precluded from considering an issue merely because a party chooses not to
raise it. See Mack v City of Detroit, 467 Mich. 186, 206-209; 649 NW2d 47 (2002). However,
we are satisfied from our review of the record that it is unnecessary for us to do so. Despite
some misgivings about some of the trial court’s reasoning, our review of the record reveals no
clear error regarding the trial court’s conclusion that at least one statutory ground for termination
was established. See In re Olive/Metts, 297 Mich. App. 35, 40; 823 NW2d 144 (2012). The trial
court was therefore required to terminate respondent’s parental rights if it found that termination
2
Clark was convicted of first-degree murder for his involvement in Barron’s death. Clark’s
appeal from that conviction is presently pending before this Court in Docket No. 343607.
Respondent sought to withdraw her plea, which was refused by the trial court. She sought to
appeal that refusal, which was denied by this Court and by our Supreme Court. People v Hoath,
unpublished order of the Court of Appeals, June 29, 2018 (Docket No. 343918); People v Hoath,
___ Mich ___; 919 NW2d 75 (2018).
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was in the best interests of the children. MCL 712A.19b(5); In re Moss, 301 Mich. App. 76, 86-
90; 836 NW2d 182 (2013).
III. BEST INTERESTS OF THE CHILDREN
We review the trial court’s decision regarding best interests for clear error. In re Trejo
Minors, 462 Mich. at 356-357.
It was not disputed that respondent seemingly made meaningful progress up to the point
at which she was convicted of, and incarcerated for, the murder. For example, early in the
proceedings, AM, who was eight years old at the time, testified that she believed respondent was
totally untrustworthy and had been given “too many chances” already, and that AM flatly did not
want to go back with respondent, “ever.” By the time of respondent’s arrest, however,
respondent was participating actively in counseling with the children, and even AM reported that
she wanted to see visits with respondent increased.
Nevertheless, the trial court correctly recognized that the bond between respondent and
her children did not exist “in a vacuum,” and it alone could not overcome the negative factors of
drug use and violence. The trial court observed that AM’s eventual desire to return to
respondent was qualified by, “if [respondent] made good choices.” The majority of respondent’s
random drug screens were either positive or “no call/no show,” and she continued to associate
with drug users. Furthermore, despite respondent’s apparent progress in her domestic violence
services, her participation in the murder reflects poorly on her ability or inclination to “make
good choices” or to protect the children from sustaining even more violence-related trauma. A
psychological evaluation of respondent indicated that respondent’s own history of trauma, and
her established behavior patterns, made her an “extremely difficult case” for effectuating positive
change. There was testimony that the children were extremely traumatized, and several
experienced attorneys described AM’s testimony as disturbing or chilling, further reflecting the
deep and lasting harm the children sustained while living with respondent.
Neither incarceration alone nor criminal history alone are sufficient bases for terminating
a parent’s parental rights. In re Mason, 486 Mich. 142, 160-165; 782 NW2d 747 (2010).
However, they are certainly relevant to the best interests of the children, especially given the
testimony that the children, who had already experienced considerable disruption in their lives,
needed permanence and stability. The earliest possible date of respondent’s release is in 2042,
long after all three children have reached the age of majority. In the meantime, although
respondent sent regular letters to the children, there were some concerns that the contents of
those letters were not consistently appropriate, and in any event, it is not possible for respondent
to provide any kind of home life for the children. No suitable relatives could be found for
placing the children other than, possibly, their father. The children’s father’s parental rights
were not terminated “yet,” but the trial court made it clear that the father was only being given
one final chance, with no guarantee that his rights would not eventually be terminated. In any
event, each parent’s rights must be considered individually, without consideration of the fitness
or unfitness of the other parent. In re Sanders, 495 Mich. 394, 422; 852 NW2d 524 (2014).
Therefore, the permanency that the children’s father may be able to provide has no bearing on
the fact that respondent cannot provide permanency, stability, or safety for the children.
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IV. CONCLUSION
We do not find clear error in the trial court’s finding that, paraphrasing AM’s statements,
respondent “doesn’t make good choices,” and its finding that the children would be in “great
danger” if returned to respondent’s care. A child’s “interest in maintaining a relationship with
[his or her parent] exists only to the extent that it would not be harmful [to the child].” In re MU,
264 Mich. App. 270, 282; 690 NW2d 495 (2004). Respondent would be incapable of providing
the children with the permanence, stability, and safety they need. In contrast, the trial court
recognized that the foster family is a good fit for the children, that the children were placed
together, and that the foster family was willing to provide permanence by adopting the children.
There is no dispute that the foster family provided the children with proper care. The trial court
did not clearly err by finding that termination of respondent’s parental rights was in the
children’s best interests.
Affirmed.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Amy Ronayne Krause
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