in Re M J Post Minor

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re M. J. POST, Minor. May 10, 2018
No. 340145
St. Clair Circuit Court
Family Division
LC No. 17-000026-NA
Before: CAVANAGH, P.J., and STEPHENS and SWARTZLE, JJ.
PER CURIAM.
Respondent appeals as of right an order terminating her parental rights to her minor
daughter, MJP. Respondent’s rights were terminated pursuant to MCL 712A.19b(3)(g) (parent
failed to provide proper care and custody), after respondent gave birth to MJP while incarcerated,
and did not provide MJP with appropriate placement. Respondent contends on appeal that the
trial court erred in establishing a statutory ground for termination, and erred in determining that
termination was in the best interests of MJP. We affirm.
I. STANDARD OF REVIEW
“The clear error standard controls our review of both the court’s decision that a ground
for termination has been proven by clear and convincing evidence and . . . the court’s decision
regarding the child’s best interest.” In re Medina, 317 Mich. App. 219, 226; 894 NW2d 653
(2016) (quotation marks and citations omitted). See also MCR 3.977(K). “Appellate courts are
obliged to defer to a trial court’s factual findings at termination proceedings if those findings do
not constitute clear error.” In re Rood, 483 Mich. 73, 90; 763 NW2d 587 (2009). “ ‘A finding is
clearly erroneous if, although there is evidence to support it, we are left with a definite and firm
conviction that a mistake has been made.’ ” In re Schadler, 315 Mich. App. 406, 408; 890 NW2d
676 (2016), quoting In re HRC, 286 Mich. App. 444, 459; 781 NW2d 105 (2009). “In applying
the clear-error standard in parental termination cases, ‘regard is to be given to the special
opportunity of the trial court to judge the credibility of the witnesses who appeared before it.’ ”
Schadler, 315 Mich. App. at 408-409, quoting In re Miller, 433 Mich. 331, 337; 445 NW2d 161
(1989).
II. STATUTORY GROUNDS FOR TERMINATION
The petitioner bears the burden to establish by clear and convincing evidence at least one
statutory ground for terminating a respondent’s parental rights. In re Gonzales/Martinez, 310
Mich. App. 426, 431; 871 NW2d 868 (2015). “To terminate parental rights, a trial court must find
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by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has
been established.” In re Moss, 301 Mich. App. 76, 80; 836 NW2d 182 (2013). In this case, the
trial court found a statutory ground had been established pursuant to MCL 712A.19b(3)(g). The
statute provides:
(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:
* * *
(g) The 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. [MCL 712A.19b(3)(g).]
Respondent contends that the trial court erred in establishing the statutory ground because it
based its entire decision on respondent’s criminal history, as well as the fact that she was
incarcerated at the time of the termination hearing. We disagree.
Indeed, “[i]ncarceration alone is not a sufficient reason for termination of parental
rights,” In re Mason, 486 Mich. 142, 146; 782 NW2d 747 (2010), and a criminal record alone
cannot be grounds for termination if “respondent did not commit [one] of the enumerated crimes
listed in MCL 712A.19a(2) or MCL 722.638(1) and (2),” In re Pops, 315 Mich. App. 590, 601;
890 NW2d 902 (2016). However, respondent’s contention that the trial court terminated her
parental rights with a singular focus on her criminal history is inaccurate.
Testimony at the termination hearing by respondent’s former probation officer indicated
that, in addition to respondent’s criminal history, respondent also had a 15 year history of drug
abuse, as well as a history of being unaffected by the countless services that had been offered to
her in that time. Additionally, family services professionals testified as to respondent’s history
of involvement with Child Protective Services (CPS), as well as her involvement in custodial
proceedings that led to the termination of respondent’s parental rights to five older children in
2013.
In November of 2011, after respondent’s older children were removed and later returned
to her, CPS received no less than five subsequent complaints in barely over a year alleging,
among other things, physical neglect, improper supervision, threatened harm, and substance
abuse. The final complaint came after respondent was convicted of retail fraud and tested
positive for methamphetamines. The complaint led to the filing of a petition for termination and
respondent’s ultimate relinquishment of her parental rights. Over the next several years,
respondent admittedly continued to struggle with substance abuse, and was convicted of no less
than five property and theft related crimes. Respondent had been incarcerated for one of those
crimes when she gave birth to MJP.
The referee found that respondent had demonstrated a “chronic, repetitive” proclivity for
criminal activity, but also found that respondent had failed to utilize years of family services,
instead choosing to continue to live in a way that would not allow her to “provide proper care or
custody for the child.” Although respondent provided evidence that she had participated and
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completed programs in prison, the referee also noted that “all of [those] programs plus many
more [had] been available to [respondent] through community resources in the local area [and]
through probation requirements for six years . . . .” Respondent’s “record and prior history
establishe[d] that there ha[d] been virtually no period of time in which [respondent had] shown
the stability to provide proper care and custody.” The trial court ultimately adopted the referee’s
factual findings, and we cannot disagree with that decision, much less find evidence to support a
definite and firm conviction that the trial court was mistaken. Moreover, the referee’s findings
do not support respondent’s contention that the trial court was overly focused on respondent’s
criminal history or incarceration.
Accordingly, respondent has failed to show that the trial court committed clear error
when it found by a preponderance of the evidence that MCL 712A.19b(3)(g) established a
statutory ground for the termination of respondent’s parental rights.
III. BEST-INTEREST DETERMINATION
Subsequent to finding a statutory ground for termination by clear and convincing
evidence, a trial court “cannot terminate the parent’s parental rights unless it also finds by a
preponderance of the evidence that termination is in the best interests of the children.” Gonzales,
310 Mich. App. at 434. “In making its best-interest determination, the trial court may consider the
whole record, including evidence introduced by any party.” Medina, 317 Mich. App. at 237
(quotation marks and citation omitted). “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 parent’s home’ ” In re White,
303 Mich. App. 701, 713; 846 NW2d 61 (2014), quoting In re Olive/Metts, 297 Mich. App. 35, 41-
42; 823 NW2d 144 (2012). Finally, in order to “adequately safeguard the child’s interest in a
normal family home,” the best-interest determination need only be supported by a preponderance
of the evidence. Moss, 301 Mich. App. at 89.
The majority of respondent’s best-interest argument on appeal focuses on the strong
constitutional right of parents, and the irrevocable nature of the termination of parental rights.
Respondent’s focus is misplaced, however, as the best-interest determination is intended to be a
child-centered analysis. See Medina, 317 Mich. App. at 239; Moss, 301 Mich. App. at 87. Any
constitutional argument was necessarily implicated in analysis of the statutory ground for
termination, and has little bearing on the best-interest determination: “Once the petitioner has
presented clear and convincing evidence that persuades the court that at least one ground for
termination is established . . . the liberty interest of the parent no longer includes the right to
custody and control of the child[].” In re Trejo Minors, 462 Mich. 341, 355; 612 NW2d 407
(2000), superseded in part by statute on other grounds as recognized by In re Moss, 301 Mich
App at 83. Accordingly, respondent’s argument that the trial court should have considered her
constitutional liberty interest as a factor in its best-interest determination is meritless.
Respondent also contends that the trial court failed to consider MJP’s placement with a
relative, which is a factor that weighs against termination of parental rights. MCL
712A.19a(8)(a) provides: “The court is not required to order the agency to initiate proceedings to
terminate parental rights if . . . [t]he child is being cared for by relatives.” The Michigan
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Supreme Court has interpreted that language as meaning that placement with the relative of a
respondent-parent should be “an explicit factor” in the best-interest termination. Mason, 486
Mich. at 164. “A trial court’s failure to explicitly address whether termination is appropriate in
light of the [child’s] placement with relatives renders the factual record inadequate to make a
best-interest determination and requires reversal.” Olive/Metts, 297 Mich. App. at 43.
In this case, respondent’s initial relative placement with MJP’s putative father and
maternal grandmother turned out to be an inappropriate placement. Respondent left MJP in the
care of the putative father, who shortly thereafter was convicted on his own criminal charges, but
whose care for MJP prompted concerns regardless, because of a “strong odor of marijuana,” and
a failure to follow safe sleep practices. Petitioner also noted that respondent’s mother, who was
to assist the putative father, was not complying with DHHS’s placement plan. MJP was
removed from the care of the putative father and maternal grandmother, and although MJP was
ultimately placed with respondent’s cousin, respondent was not responsible for that placement.
Petitioner only found the placement after MJP had already been removed and a termination
petition was filed. Notwithstanding, the referee appropriately acknowledged that MJP was
placed with relatives, and found that MJP’s need for stability and safety necessitated the
termination of parental rights regardless, as respondent was unable, and would be unable for the
foreseeable future, to provide the same. Given respondent’s history, her continued incarceration,
and her lack of certainty with regard to appropriate housing, employment, and the like, we
cannot conclude that the trial court committed clear error when it determined that a
preponderance of the evidence weighed in favor of termination.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
/s/ Brock A. Swartzle
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