In Re Roy Minors ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re ROY, Minors. May 25, 2023
No. 364160
Wayne Circuit Court
Family Division
LC No. 2022-000382-NA
Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating his parental rights to the
minor children, JR and MR, under MCL 712A.19b(3)(h). For the reasons set forth in this opinion,
we vacate the trial court’s termination of respondent’s parent rights.
I. BACKGROUND
JR and MR were both born in Michigan. Respondent and mother lived together with the
children, but eventually then moved in mother, then respondent.
Respondent was arrested while living in Florida, where he had been living with JR. He has
been incarcerated since September 2019 and is serving a prison sentence in the federal system.
After his incarceration, JR moved back to live with his mother and MR in Michigan. Respondent’s
release date from prison is March 11, 2029, but he testified that he had earned time by completing
certain programs while in prison to bring his release date to January 2025, which required that he
stay out of trouble and not gain any infractions while in prison.
Mother died on January 14, 2022. Respondent later called his sister, and asked if she would
take both JR and MR into her care, and his sister agreed. Estelita Horton, an employee with
petitioner, the Department of Health and Human Services (DHHS), in its Children’s Protective
Services (CPS) division, spoke with respondent on March 3, 2022. Respondent indicated to
Horton that his sister could take care of the children.
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On October 4, 2022, the referee held a combined adjudication, statutory-ground, and best-
interest hearing.1 Horton acknowledged that respondent continued to have contact with the
children after being incarcerated. They would talk “all the time” on the phone and the children
had also visited respondent in prison. In response to being asked if termination of respondent’s
parental rights was in the children’s best interests, Horton replied, “Yes.” She did not explain her
answer at the time, but presumably relied on her views that the children needed permanency, that
respondent could not provide proper care and custody while in prison, and that the children’s
caregiver, respondent’s sister, did not have legal authority to provide proper care and custody
either. Horton admitted that she never asked the children about their preferences regarding
whether respondent’s rights should be terminated. Horton agreed that respondent was
“instrumental” in making sure the children were cared for.
Emily James, the foster-care worker assigned to the case, testified that both children have
a strong bond with respondent, as evidenced by their frequent communications. James also did
not ask the children if they desired that respondent’s rights be terminated. James did not think that
ceasing all contact between the children and respondent was in the children’s best interests.
Respondent testified that although he had provided financial support for the children before
his incarceration,2 since then, he has not been able to do so. Respondent also stated that since his
incarceration, he “absolutely” has maintained contact with the children, with one to three calls
taking place each week. Respondent noted that no one from DHHS ever spoke to him about
signing a power of attorney. Indeed, after he was declared the legal father, no options were
discussed except for termination of his parental rights.
During closing argument, although the petition cited multiple grounds for termination,
petitioner’s attorney only relied on MCL 712A.19b(3)(h). Respondent’s attorney, while citing In
re Mason, 486 Mich 142; 782 NW2d 747 (2010), and In re Baham, 331 Mich App 737; 954 NW2d
529 (2020), argued that the evidence failed to meet the requirements of MCL 712A.19b(3)(h). In
particular, he argued that respondent provided care for his children by placing them with his sister.
Respondent’s attorney also argued that with the strong bond between the children and respondent,
termination was not in the children’s best interests.
The court ruled that it had jurisdiction under MCL 712A.2(b). The trial court also
dismissed any reliance on either Mason or Baham, finding instead that § 19b(3)(h) had been
proven by clear and convincing evidence. The trial court also found that termination of
respondent’s parental rights was in the children’s best interests, and terminated respondent’s
parental rights.
1
Although petitioner and respondent jointly requested that the best-interest portion be bifurcated
from the rest of the proceedings, the referee declined to do so.
2
Indeed, according to respondent, he was the sole source of financial support for the children
because their mother did not work and did not receive any other types of benefits.
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Eight days prior to oral argument in this matter, DHHS submitted a motion for peremptory
reversal in this matter alleging, in part, that the error by the trial court was so manifest that this
Court need not consider oral argument or issue an opinion in the matter. This Court denied relief
for the reasons set forth in the order.3
II. ANALYSIS
All parties to the matter have requested this Court grant respondent relief because the trial
court clearly erred by finding that clear and convincing evidence supported termination of his
parental rights under MCL 712A.19b(3)(h).4 We agree, and accordingly we reverse and remand
for further proceedings.
This Court reviews a trial court’s finding whether a statutory ground for termination has
been proven by clear and convincing evidence for clear error. In re Moss, 301 Mich App 76, 80;
836 NW2d 182 (2013). A finding is clearly erroneous when a reviewing court is left with a definite
and firm conviction that a mistake was made. In re Ellis, 294 Mich App 30, 33; 817 NW2d 111(2011).
A trial court must terminate a parent’s parental rights if it finds that a statutory ground
under MCL 712A.19b(3) has been established by clear and convincing evidence and that
termination is in the child’s best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61(2014). The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(h), which
allows termination of parental rights under the following circumstances:
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.
Our Supreme Court in In re Mason held that termination under this ground is allowed only
if three conditions are met: (1) “the child will be deprived of a normal home for a period exceeding
2 years,” (2) “the parent has not provided for the child’s proper care and custody,” and (3) “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.” In re Mason, 486 Mich at 160-1615; see also In re
Baham, 331 Mich App at 753-754.
3
In re Roy, Minors, unpublished order of the Court of Appeals, entered April 27, 2023 (Docket
No. 364160).
4
The lawyer-guardian ad litem (LGAL) for the children also argues that this statutory ground was
not established.
5
The record reveals that the referee was not familiar with our Supreme Court’s holding in Mason
or this Court’s holding in Baham which may have led the court to have either completely ignored
or misinterpreted respondent’s counsel’s argument regarding the applicability of In re Mason.
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Even conceding the first requirement, there was insufficient evidence on which the trial
court could find that the second and third requirements of § 19b(3)(h) were met. As our Supreme
Court has held, parents who are incarcerated nonetheless can provide proper care and custody
because such care need not be personally made by the parent. In re Mason, 486 Mich at 161. The
Court went on to note that “Michigan traditionally permits a parent to achieve proper care and
custody through placement with a relative.” Id. at 161 n 11. In this case, the record clearly shows
that after the mother’s death, respondent contacted his sister about taking care of the children and
worked with DHHS to ensure that placement was made. Further, Horton admitted at trial that
respondent was “instrumental” in making sure the children were cared for. These facts are
strikingly similar to the facts in In re Baham. In In re Baham, this Court reversed an order
terminating the respondent’s parental rights because the respondent, who was incarcerated,
“worked together” with DHHS “to place [the child] with [the] respondent’s brother.” In re Baham,
331 Mich App at 754. It did not matter that the child was placed with DHHS before the respondent
could voluntarily place the child with her brother. Id. Here, respondent actually contacted his
sister prior to being contacted by DHHS and continued to work with DHHS to place the children
with his sister.
Further, the record reveals that the trial court made additional erroneous rulings in this
matter. For example, the trial court found: “Father stated that he has provided no financial support
for these children other than when he received welfare in Florida to provide for one of the
children.” This finding is not accurate. The trial court further found: “He [respondent]could not
even enroll the child into school because he was not the legal father.” Again, this finding is not
accurate. Rather, the record reveals that respondent worked for or possibly owned a cleaning
service for six years in Florida and was the only one financially supporting the children before his
incarceration because, while he worked, the mother did not work and did not collect any benefits.
Respondent also said that he did enroll JR in school in Florida when the mother and MR were
Respondent’s counsel had argued that In re Mason, as well as In re Baham, establishes that three
criteria must be satisfied to terminate under § 19b(3)(h), but the trial court, when addressing the
argument, stated in its opinion:
Father and his counsel claim that the court has no jurisdiction because father
is incarcerated and cites [In re Mason] as legal authority. However, Mason, supradoes not support that contention. Father was present at all hearings via zoom
technology and fully participated in the trial.
The court’s pronouncement is perplexing because respondent’s counsel never contended that the
court lacked jurisdiction. He explicitly stated during closing argument that “I’m not, at this point,
making and [sic] argument in regard to jurisdiction, ah you know, I leave the proofs as they are for
the Court to make a determination as to the temporary jurisdiction.” And later when summarizing
his argument, counsel stated, “Those are the . . . legal analysis provided by Mason and provided
by Baham for the Court to determine whether there’s a basis under Section (h) to terminate his
rights and the -- the petitioner has not met that goal. Has not met that burden of proof of clear and
convincing evidence based on that legal fram -- frame framework.”
-4-
living elsewhere and JR was living with him in Florida. Respondent implied that having JR’s birth
certificate and social security card was all that was needed to enroll him.
Given that all parties have agreed that the trial court clearly erred in this matter, it is
unnecessary for us to discuss additional errors. Suffice to conclude by stating that here, we are
left with a definite and firm conviction that the trial court clearly erred when it found that
§ 19b(3)(h) was proven by clear and convincing evidence. Therefore, we vacate the order
terminating respondent’s parental rights
Reversed.
/s/ Anica Letica
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
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