in Re Garcia Minors

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UNPUBLISHED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 GARCIA, Minors. August 27, 2019
No. 347162
Saginaw Circuit Court
Family Division
LC No. 17-035078-NA
Before: GADOLA, P.J., and MARKEY and RONAYNE KRAUSE, JJ.
PER CURIAM.
Respondent father appeals as of right the order terminating his parental rights to two
minor children under MCL 712A.19b(3)(a)(ii) (desertion of child), (c)(i) (conditions leading to
adjudication continue to exist and no reasonable likelihood of rectification), (g) (failure to
provide proper care or custody and no reasonable likelihood of providing proper care and
custody), (j) (likelihood of harm to child if returned to parent), and (m)(i) (parent convicted of
murder and continuation of parent-child relationship would be harmful to child). We affirm.
I. BACKGROUND
The two children were born in 2004 and 2005. Respondent has been incarcerated in
Louisiana since early 2006, following his participation in a horrifying and gruesome kidnapping,
rape, beating, and murder. See Louisiana v Garcia, 108 So 3d 1, 6-12; 2009-1578 (La 11/16/12).
In 2008, a jury unanimously convicted respondent and returned a sentence of death. Respondent
has expressed optimism for his appeal; nonetheless, he has been on death row since that time.
Respondent also admitted that nobody from his family had seen the children since 2008. Even
before respondent’s incarceration, he had not seen the oldest child since the child was
approximately six months old, and he had never even seen the youngest child. As of the date of
the termination hearing, his total involvement in the children’s lives consisted of a few letters
from prison. In the meantime, the children resided with their mother, LB. The instant
proceedings commenced in July of 2017, due to LB’s husband’s threats to shoot the children and
due to LB’s drug use. LB is not at issue in this appeal. The court terminated respondent’s
parental rights based on his history of violence, his incarceration, the little interest he had shown
in the children, and his failure to support or provide a care plan for them.
II. STANDARD OF REVIEW
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To terminate parental rights, the trial court must initially find, by clear and convincing
evidence, a statutory ground for termination, MCL 712A.19b(3); this Court reviews for clear
error the trial court’s factual findings and its ultimate determination that a statutory ground has
been established. In re Mason, 486 Mich. 142, 152; 782 NW2d 747 (2010). This Court also
reviews for clear error a lower court’s decision that termination is in a child’s best interests. In
re Olive/Metts Minors, 297 Mich. App. 35, 40; 823 NW2d 144 (2012). A finding is clearly
erroneous if, even if some evidence supports it, the reviewing court is nevertheless left with the
firm and definite conviction that the lower court made a mistake. In re Mason, 486 Mich. at 152.
“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). However, constitutional issues raised for the first time on
review are reviewed for plain error affecting substantial rights. In re TK, 306 Mich. App. 698,
703; 859 NW2d 208 (2014). A plain error is an error that is “clear or obvious.” People v
Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999).
III. DUE PROCESS
Respondent first contends that his due-process rights were violated because petitioner
allegedly treated him differently from how it would have treated a non-incarcerated parent.
Respondent did not raise this constitutional issue below.
There are two types of due process: procedural and substantive.
Procedural due process requires notice and a meaningful opportunity to be heard
before an impartial decision-maker. The essence of a substantive due process
claim is the arbitrary deprivation of liberty or property interests. Ultimately, due
process requires fundamental fairness. [In re TK, 306 Mich. App. at 706.]
Respondent’s primary contention is that petitioner did not investigate his relatives for placement
of the children and that this was unfair because petitioner would have done so for a person who
was not incarcerated. The record shows otherwise.
At the July 2017 preliminary hearing, respondent stated that his mother, his father, and
his sister could be considered as possible placement options for the children, despite admitting
that no members of his family had seen the children since 2008. LB objected to placement of the
children with respondent’s family, indicating issues with domestic violence and restraining
orders against respondent. However, the trial court directed petitioner to “follow up on that.” At
a subsequent hearing, the foster care worker, AD, reported that “the CPS worker” had looked
into “fictive kin” placements for the children and found “no available relatives for placement.”
AD stated that she would look into placement with respondent’s family members “if people were
provided to [her].” Respondent participated by telephone in several further hearings without
mentioning any relative who might be available for possible placement, either personally or
through his attorney. At one hearing, LB mentioned some of her own relatives, and respondent’s
attorney’s subsequent statements made no mention of potential placements with respondent’s
relatives. In addition, AD stated that respondent had not “offered a care plan” for the children.
Under all these circumstances, respondent has not shown any plain error concerning the
potential placement of the children with his relatives. He made a single, vague reference to his
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father, his mother, and his sister as possible placement options. However, he never followed up
with any further indications that such relatives even existed, despite numerous opportunities to
do so and an express statement by AD that she would investigate relative placements if she
received any names. The record shows that the only reason petitioner did not investigate
respondent’s relatives for placement had nothing to do with respondent’s incarceration. We find
no clear error or unfairness regarding the issue of relative placement.
Respondent additionally contends that “his attempts to communicate with his children
were also met with resistance.” At the initial disposition in January 2018, respondent’s attorney
noted that respondent wanted to have contact with the children. The court indicated that such
contact could occur if a therapist deemed it appropriate. By February of 2018, no therapists had
yet been contacted. However, by May of 2018, the children had been approved for contact by
letter with respondent, and both children would be assisted by a therapist in addressing
correspondence from respondent. Respondent was then permitted to send letters to the children.
Considering the negligible to nonexistent history of contact respondent had with the children and
respondent’s death sentence, petitioner had every reason to exercise caution and care. We are
therefore unpersuaded that petitioner engaged in unfair or improper delay.
Finally, respondent states that “the criminal status of the parent is not a sufficient basis by
itself for the . . . court to assume jurisdiction.” Respondent’s mere criminal status was not the
sole basis for jurisdiction. Instead, the court relied on respondent’s admissions that he could not
provide care or any physical, financial, or emotional support for his children because he was
incarcerated on death row. No plain error is apparent concerning the assumption of jurisdiction.
We finally note that respondent or his attorney participated in all hearings, and AD testified that
she was maintaining contact with respondent by way of mail.
IV. STATUTORY GROUNDS
Respondent next argues that the trial court erred by finding statutory grounds for
termination and by finding that termination was in the children’s best interests. We disagree.
As noted, the trial court found grounds for termination under MCL 712A.19b(3)(a)(ii),
(c)(i), (g), (j), and (m)(i). MCL 712A.19b states, in relevant part:
(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:
* * *
(a) The child has been deserted under either of the following
circumstances:
* * *
(ii) The child’s parent has deserted the child for 91 or more days and has
not sought custody of the child during that period.
* * *
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(c) The parent was a respondent in a proceeding brought under this
chapter, 182 or more days have elapsed since the issuance of an initial
dispositional order, and the court, by clear and convincing evidence, finds . . . the
following:
(i) The 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.
* * *
(g) The parent, although, in the court’s discretion, financially able to do
so, 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.[1]
* * *
(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.
(m) 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 . . . MCL . . . 750.316 . . .
* * *
(iii) A federal law or law of another state with provisions substantially
similar to a crime or procedure listed or described in subparagraph (i) or (ii).
Only one statutory ground is required for termination of a parent’s parental rights. In re Ellis,
294 Mich. App. 30, 32; 817 NW2d 111 (2011).
Initially, respondent does not challenge the trial court’s factual findings under MCL
712A.19b(3)(a)(ii). Consequently, we need not grant him any appellate relief. Derderian v
Genesys Health Care Sys, 263 Mich. App. 364, 381; 689 NW2d 145 (2004). Nevertheless, the
trial court did not err in finding this ground established by clear and convincing evidence. As
noted, even before respondent’s incarceration, he had no contact with the youngest child at all,
1
Subsection (g) was amended by 2018 PA 58, effective June 12, 2018. Because, as will be
discussed, we need not address subsection (g), we also need not address the significance of the
amendment.
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and only “some contact” with the older child for the first few months of the child’s life. He had,
in the meantime, provided no “alternative care plan for his children.” It was adequately proved
that respondent deserted the children for 91 or more days and did not seek custody of them
during that period. MCL 712A.19b(3)(a)(ii).
Furthermore, respondent’s undisputed conviction of first-degree murder in Louisiana in
violation of La Rev Stat § 14:30, see Garcia, 108 So 3d at 5, is a “law of another state with
provisions substantially similar to” MCL 750.316. MCL 712A.19b(3)(m)(i) and (iii).
Considering the evidence of respondent’s violent nature and disinterest in the children, even
beyond the depraved nature of the entire Louisiana offense, clearly supports the trial court’s
finding that “continuing the parent-child relationship with the parent would be harmful to the
child.” MCL 712A.19b(3)(m).
Under MCL 712A.19b(3)(c)(i), the conditions leading to adjudication were that
respondent could not provide care or financial, physical, or emotional support for the children
because he was lodged on death row. These conditions continued to exist at the time of
termination. 2 Although respondent claimed that his chances on appeal were “pretty good,” a
contention we find dubious, he had been sentenced in July 2008, and as of the termination
hearing in December 2018, he was still incarcerated. Furthermore, even if he prevailed in an
appeal, the evidence shows that his tendency toward violence and neglect will not have changed.
Meanwhile, the children are now aged 14 and 15. The court did not clearly err by finding “no
reasonable likelihood that the conditions [leading to adjudication] will be rectified within a
reasonable time considering the [children’s] age[s].” MCL 712A.19b(3)(c)(i).
Because there were at least three statutory bases for termination amply proved by clear
and convincing evidence, we need not analyze whether termination was appropriate under MCL
712A.19b(3)(g) and (j).
V. BEST INTERESTS
“If a trial court finds that a statutory basis for terminating parental rights exists by clear
and convincing evidence, it is required to terminate parental rights if it finds from a
preponderance of evidence on the whole record that termination is in the children’s best
interests.” In re Brown/Kindle/Muhammad Minors, 305 Mich. App. 623, 637; 853 NW2d 459
(2014) (quotation marks and citation omitted); see also MCL 712A.19b(5).
To determine whether termination of parental rights is in a child’s best
interests, the court should consider a wide variety of factors that may include the
child’s bond to the parent, the parent’s parenting ability, the child’s need for
permanency, stability, and finality, and the advantages of a foster home over the
2
Because respondent was still on death row, he was clearly unable to provide financial or
physical support. Given respondent’s criminal status, the lack of bonds he had with the children,
and the fact that they did not want to write back to him, it appears that he was also incapable of
providing adequate emotional support.
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parent’s home. The trial court may also consider a parent’s history of domestic
violence, the parent’s compliance with his or her case service plan, the parent’s
visitation history with the child, the children’s well-being while in care, and the
possibility of adoption. [In re White, 303 Mich. App. 701, 713-714; 846 NW2d 61
(2014) (quotation marks and citations omitted).]
LB provided ample evidence to the effect that respondent had a history of committing domestic
violence. The events that resulted in his incarceration further show respondent to be a violent
individual with no apparent regard for others. Garcia, 108 So 3d at 5-12. In addition, he had no
bonds with the children. He had not seen MJG since MJG was a toddler, and he had never had
any physical contact with LJG. He was awaiting the implementation of a death sentence, he had
no way to provide any financial support for the children, and in any event, he had shown no
interest in providing financial support for the children. He would lack housing, employment,
parenting skills, and probably any basic human capacity for love or affection even if he were to
be released from prison. The trial court did not clearly err by finding that it was in the children’s
best interests to terminate respondent’s parental rights. In re Mason, 486 Mich. at 152.
Respondent reiterates that the children could have been placed with his relatives, and he
further suggests that a guardianship could have been utilized. As discussed, respondent failed to
avail himself of numerous opportunities to follow through on the possibility of relative
placement. The possibility of a guardianship was raised for the first time in closing arguments at
the termination hearing, essentially by generally incorporating arguments made by LB. In any
event, respondent continues to provide no offer of proof regarding which relatives were available
or how they might be appropriate. Under all the circumstances, including the children’s need for
permanency, the trial court did not clearly err by terminating respondent’s parental rights instead
of delaying permanency by ordering that a guardianship be pursued.
Affirmed.
/s/ Michael F. Gadola
/s/ Jane E. Markey
/s/ Amy Ronayne Krause
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