in Re E Hullihen Minor ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re E. HULLIHEN, Minor. September 27, 2016
No. 332112
Clare Circuit Court
Family Division
LC No. 15-000119-NA
Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.
PER CURIAM.
Respondent appeals by right the termination his parental rights to his daughter, EH, based
upon MCL 712A.19b(3)(h) (incarceration of parent) and MCL 712A.19b(3)(n) (parent convicted
of murder). For the reasons set forth below, we affirm.
I. FACTUAL BACKGROUND
In December 2011, respondent murdered EH’s mother and the mother’s boyfriend.1
Respondent was convicted of two counts of second-degree murder, MCL 750.317, and two
counts of possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. Respondent was sentenced to concurrent prison terms of 37 years six months to 75
years for second-degree murder and two consecutive two-year terms for felony-firearm.
After the murder, respondent placed EH with his parents, signed an appointment of
guardianship form for them, and provided them with a power of attorney. However, EH’s
maternal grandmother filed a competing petition for guardianship and was appointed as the
child’s guardian in April 2012. In December 2015, petitioner filed for termination of
respondent’s parental rights, citing respondent’s convictions and lengthy incarceration. The trial
court terminated respondent’s parental rights and this appeal ensued.
II. ANALYSIS
A. JURISDICTION
1
People v Hullihen, unpublished opinion per curiam of the Court of Appeals, issued May 22,
2014 (Docket No. 315371).
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Respondent first argues that the trial court clearly erred by assuming jurisdiction over EH
because the court erroneously focused on the child’s past, not her present situation.
We review a circuit court’s “decision to exercise jurisdiction for clear error in light of the
court’s findings of fact.” In re BZ, 264 Mich. App. 286, 295; 690 NW2d 505 (2004). “A finding
of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a
mistake has been committed, giving due regard to the trial court’s special opportunity to observe
the witnesses.” Id. at 296-297.
The trial court must find that a statutory basis exists for exercising jurisdiction over a
minor in a child protective proceeding. In re PAP, 247 Mich. App. 148, 152-153; 640 NW2d 880
(2001). “To acquire jurisdiction, the factfinder must determine by a preponderance of the
evidence that the child comes within the statutory requirements of MCL 712A.2.” In re Brock,
442 Mich. 101, 108-109; 499 NW2d 752 (1993).
MCL 712A.2(b) provides the following statutory grounds for a trial court to assume
jurisdiction over a child:
(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age
found within the county:
(1) Whose parent or other person legally responsible for the care and
maintenance of the juvenile, when able to do so, neglects or refuses to provide
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. . . .
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(2) Whose 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. [MCL
712A.2(b)(1) and (2).]
MCL 712A.2 “speaks in the present tense, and, therefore, the trial court must examine the child’s
situation at the time the petition was filed.” In re MU, 264 Mich. App. 270, 279; 690 NW2d 495
(2004).
The trial court did not clearly err by assuming jurisdiction under MCL 712A.2(b)(1)
because the evidence showed that respondent posed a risk of harm to EH’s mental well-being. It
was uncontested that respondent murdered EH’s mother, and the evidence showed that the
murder was a circumstance that existed in EH’s past and present, and will continue into her
future. For example, evidence of EH’s nightmares about the murder of her mother showed that
the trauma continued to impact her mental well-being and EH did not want anything to do with
respondent. The fact that a parent was incarcerated when the petition was filed does “not
eliminate the mental and emotional effect on the child” of a parent’s criminal conduct that
impacts the child. See In re S R, 229 Mich. App. 310, 315; 581 NW2d 291 (1998). The murder
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of EH’s mother, standing alone, was sufficient to demonstrate substantial risk of harm to EH’s
mental well-being.
Respondent argues that there was no risk of harm to EH’s mental well-being because the
maternal grandmother testified that EH eventually stopped attending therapy and did not want to
restart therapy even after her nightmares restarted. Respondent also asserts that the fact that EH
was having nightmares was insufficient support for a conclusion that a substantial risk of harm to
EH’s emotional well-being existed. These arguments lack merit. Acknowledging evidence that
EH’s nightmares can be triggered by visiting respondent in jail, respondent notes that EH has not
visited him in jail for over two years. But the evidence showed that EH’s nightmares have
occurred even when she has not visited defendant. Moreover, the nightmares themselves are
indicative of the persistent negative effect that the murder has had on EH’s mental and emotional
well-being regardless of whether she sought continued therapy.
Additionally, the trial court did not clearly err by exercising jurisdiction under MCL
712A.2(b)(2). It is true that EH is presently residing in a suitable home with her maternal
grandmother. However, the trial court had authority to assume jurisdiction under MCL
712A.2(b)(2) even if the parent is incarcerated and thus not residing in the same household as the
child. In re S R, 229 Mich. App. at 317. To hold otherwise “would lead to the incongruous result
that a petition filed the day before a respondent parent’s conviction would result in the probate
court’s finding of jurisdiction, whereas the same petition filed the day after the parent’s
conviction would not.” Id. Moreover, the murder of EH’s mother certainly qualified as a
depraved criminal act that rendered the home environment unfit despite EH’s appropriate
placement with petitioner at the time the petition was filed. MCL 712A.2(b)(2).
B. STATUTORY GROUNDS FOR TERMINATION
Respondent next argues that the trial court clearly erred by determining that the requisite
statutory grounds for termination were established by clear and convincing evidence.
We review a trial court’s finding grounds for termination for clear error. In re BZ, 264
Mich. App. at 296. “A finding of fact is clearly erroneous if the reviewing court has a definite and
firm conviction that a mistake has been committed, giving due regard to the trial court’s special
opportunity to observe the witnesses.” Id. at 296-297.
The trial court found grounds for termination under MCL 712A.19b(3)(n), which
provides in relevant part as follows:
The parent is convicted of 1 or more of the following, and the court
determines that termination is in the child’s best interests because continuing the
parent-child relationship with the parent would be harmful to the child:
(i) A violation of section 316, 317, 520b, 520c, 520d, 520e, or 520g of the
Michigan penal code, 1931 PA 328, MCL 750.316, 750.317, 750.520b, 750.
520c, 750.520d, 750.520e, and 750.520g. [MCL 712A.19b(3)(n)(i).]
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Here, it is uncontested that respondent was convicted of second-degree murder, MCL
750.317, which is an offense enumerated in MCL 712A.19b(3)(n)(i). The court also noted that
there was a nonexistent parent-child bond, that EH needed stability and permanency, and that EH
flourished under the care of the maternal grandmother. Additionally, the court noted EH’s
desire, as transmitted through reports by the guardian ad litem, that she did not want to see
respondent or have any contact with him. This record clearly supported that termination was in
EH’s best interests because continued contact with respondent would be harmful to EH. There
was uncontested evidence that EH suffered from nightmares relating to respondent’s crime. The
evidence also supported the trial court’s determination that there was no longer any parent-child
bond and that EH wanted no contact with respondent. Continuing the parent-child relationship
under these conditions would likely be harmful and the trial court did not clearly err by finding
that termination was in EH’s best interests.
Because there was one ground for termination, we need not consider the additional
grounds upon which the trial court based its decision. In re Ellis, 294 Mich. App. 30, 32; 817
NW2d 111 (2011).
Affirmed.
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Michael J. Riordan
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