in Re J J Clark Minor

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UNPUBLISHED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 J. J. CLARK, Minor. February 20, 2020
No. 346243; 349740
Wayne Circuit Court
Family Division
LC No. 18-000838-NA
Before: REDFORD, P.J., and CAVANAGH and SERVITTO, JJ.
PER CURIAM.
In these consolidated appeals,1 respondent-father appeals as of right the orders terminating
his parental rights to his child, JJ. The trial court terminated respondent’s rights under MCL
712A.19b(3)(h) (“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”) and MCL 712A.19b(3)(j)
(“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”). We affirm.
Respondent first argues that the trial court erroneously exceeded the scope of this Court’s
remand order. After respondent’s parental rights were terminated on October 10, 2018, petitioner
filed a motion to remand the case “to the trial court for a new dispositional hearing on whether
there are statutory grounds to terminate [respondent’s] parental rights.” We granted petitioner’s
motion and directed the trial court to make findings on the record as to whether statutory grounds
existed by clear and convincing evidence to terminate respondent’s parental rights.2 On remand,
the trial court took additional testimony from respondent. Therefore, respondent contends that the
1
In re J J Clark Minor, unpublished order of the Court of Appeals, entered July 24, 2019 (Docket
Nos. 346243; 349740).
2
In re JJ Clark Minor, unpublished order of the Court of Appeals, entered May 2, 2019 (Docket
No. 346243).
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trial court exceeded our directive to make findings based solely on the record as to whether
statutory grounds existed to terminate respondent’s parental rights. We disagree.
“When an appellate court remands a case with specific instructions, it is improper for a
lower court to exceed the scope of the order.” People v Russell, 297 Mich. App. 707, 714; 825
NW2d 623 (2012). “It is the duty of the lower court or tribunal, on remand, to comply strictly
with the mandate of the appellate court.” K & K Constr, Inc v Dep’t of Environmental Quality,
267 Mich. App. 523, 544-545; 705 NW2d 365 (2005) (quotation marks and citation omitted).
We remanded this matter under MCR 7.216(A)(5), which states that this Court may remand
a case, at any time, “to allow additional evidence to be taken[.]” At the dispositional hearing held
on October 10, 2018, the trial court relied on the clinic evaluation report in determining that there
were statutory grounds to terminate respondent’s parental rights. At the remand hearing, the court
reasoned that respondent’s “testimony or admissions would be the basis to make the findings of
the statutory grounds.” The court then proceeded to question respondent regarding statements
contained within the same clinic evaluation report to determine whether statutory grounds existed
by clear and convincing evidence to terminate respondent’s parental rights under MCL
712A.19b(3). Respondent admitted that he was currently incarcerated and his earliest release date
is in 2021. He also admitted that during the clinic evaluation interview he stated that he was
willing to allow his parental rights to be terminated because he did not have any family members
who could care for JJ while he was incarcerated. And respondent admitted that before being
incarcerated, he only had limited contact with JJ.
Respondent argues the trial court exceeded the scope of this Court’s directive when it held
a new dispositional hearing to determine whether statutory grounds existed to terminate
respondent’s parental rights. However, we remanded this matter under MCR 7.216(A)(5) which
specifically allows for additional evidence to be taken. And our remand order did not require that
the trial court base its decision solely on the preexisting record; rather, our remand order directs
that the trial court “shall hear and decide the matter within 56 days of the date of this order and
shall make an appropriate determination on the record.” On the basis of the record and
respondent’s admissions, the court found that there was clear and convincing evidence to terminate
respondent’s parental rights under MCL712A.19b(h) and (j). The trial court’s actions were clearly
in accordance with our directive to “make findings on the record pursuant to MCL 712A.19b
regarding whether statutory grounds exist by clear and convincing evidence that respondent’s
parental rights should be terminated.” In re J J Clark Minor, unpublished order of the Court of
Appeals, entered May 2, 2019 (Docket No. 346243). Therefore, the trial court did not exceed the
scope of our instructions on remand when it held a hearing to determine whether statutory grounds
existed to terminate respondent’s parental rights.
Second, respondent argues that the trial court clearly erred when it determined that there
was clear and convincing evidence to terminate his parental rights under MCL 712A.19b(3)(h)
and (j). We disagree.
To terminate parental rights, the trial court must find at least one of the statutory grounds
for termination listed in MCL 712A.19b(3) has been established by clear and convincing evidence.
In re Olive/Metts Minors, 297 Mich. App. 35, 40; 823 NW2d 144 (2012). We review the trial
court’s factual findings and ultimate decision for clear error. In re Mason, 486 Mich. 142, 152;
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782 NW2d 747 (2010). A decision is clearly erroneous if, although there is evidence to support
it, this Court is left with a definite and firm conviction that a mistake was made. In re Olive/Metts
Minors, 297 Mich. App. at 41 (citation omitted).
The first ground relied on by the trial court, MCL 712A.19b(3)(h), states that a parent’s
rights may be terminated if
[t]he 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.
Respondent is currently incarcerated for carjacking and is serving a minimum sentence of 3 years
and 9 months imprisonment. Thus, the first prong of MCL 712A.19b(3)(h) is met because
respondent “is imprisoned for such a period that the child will be deprived of a normal home for a
period exceeding 2 years.” With respect to the second prong, respondent was paying child support
before he went to prison. However, since being incarcerated, respondent has not provided any
additional support and has not identified a relative or family member to care for the child. In
addition, respondent only saw JJ about ten times before being incarcerated. Thus, the second prong
of MCL 712A.19b(3)(h) is satisfied because there was evidence establishing that respondent had
“not provided for [JJ’s] proper care and custody.” MCL 712A.19b(3)(h).
“The third necessary condition is forward-looking . . . .” In re Mason, 486 Mich. at 161.
“The mere present inability to personally care for one’s children as a result of incarceration does
not constitute grounds for termination.” Id. at 160. Therefore, “the trial court must consider
whether the imprisonment will deprive a child of a normal home for two years in the future, and
not whether past incarceration has already deprived the child of a normal home.” Id. at 161-162 n
12 (quotation marks and citation omitted). Respondent argues that the trial court erroneously
terminated respondent’s parental rights solely because of his incarceration and that the trial court
did not properly assess whether respondent would be able to provide proper care and custody for
JJ after he is released from prison. However, respondent stated in his clinical evaluation, and at
the remand hearing, that his mother is already taking care of two of his other children while he is
incarcerated so she is unable to also care for JJ. Respondent admitted that he was unable to provide
for the care of JJ while he is incarcerated. There is no evidence in the record that suggests
respondent attempted to achieve proper care and custody for JJ through placement with a different
relative. In fact, respondent stated that because he is unable to care for JJ while he is incarcerated,
he was willing to allow his parental rights to be terminated. On the basis of respondent’s own
admissions “there is no reasonable expectation that [respondent] will be able to provide proper
care and custody within a reasonable time considering the child’s age.” Thus, the third prong of
MCL 712A.19b(3)(h) is satisfied. Accordingly, the trial court properly determined that there was
clear and convincing evidence to terminate respondent’s parental rights under MCL
712A.19b(3)(h).
The trial court also found that MCL 712A.19b(3)(j) was a statutory ground for termination
of respondent’s parental rights. In other words, clear and convincing evidence established that
there was “a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the
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child will be harmed if he or she is returned to the home of the parent.” MCL 712A.19b(3)(j). In
addition to physical harm or abuse, emotional harm also constitutes grounds for termination of
parental rights under MCL 712A.19b(3)(j). In re Hudson, 294 Mich. App. 261, 268; 817 NW2d
115 (2011).
Respondent argues that there was no evidence JJ would be harmed if he lived with
respondent upon his release from prison. Respondent contends that his criminal history is not
evidence that JJ would be harmed if he eventually resided with respondent because respondent has
never been convicted of a violent crime. However, respondent is currently incarcerated for
carjacking and one of the elements of that crime is the use of force or violence, or the threat thereof.
People v Cain, 495 Mich. 874, 875; 838 NW2d 150 (2013); People v Davenport, 230 Mich. App.
577, 579; 583 NW2d 919 (1998).
Petitioner also contends that there is a reasonable likelihood JJ would be harmed
emotionally and physically if JJ was in respondent’s care and custody when he is released from
prison. The basis for this argument is that respondent essentially abandoned JJ before being
incarcerated because he had only seen JJ ten times. Further, since respondent has been in prison
he has failed to arrange for proper care or custody of JJ and admitted that he is willing to allow his
parental rights to be terminated. In addition, respondent has not expressed a desire to parent JJ
while he is incarcerated or when he is released from prison. And there is no indication that
respondent has attempted to contact JJ while in prison. Again, respondent stated multiple times
he was willing to allow his parental rights to be terminated because he is unable to care for JJ.
Before being incarcerated, respondent only had limited contact with JJ because he was not in a
relationship with JJ’s mother and he was unsure whether he was JJ’s biological father. Further,
before respondent was incarcerated, he left JJ in the care of his mother, who suffered from
schizophrenia, bipolar disorder, and depression. While JJ was living with respondent’s mother,
she experienced a psychiatric episode and was observed holding JJ outside the second story
window of her residence. Respondent completely ignored all potential risks to JJ’s safety by
leaving him with a woman who suffered from significant mental illness. Respondent also has two
other children who are in his mother’s care. Because respondent has been unable to personally
care for his two other children, it is likely that JJ would not be properly cared for if he was placed
in respondent’s custody. Therefore, the trial court did not clearly err when it concluded clear and
convincing evidence established that termination was proper under MCL 712A.19b(3)(j).
Lastly, respondent argues that termination of his parental rights was not in the child’s best
interests. Specifically, respondent asserts that the trial court failed to properly consider that despite
his limited contact with JJ before his incarceration, respondent had provided financial support for
JJ. Further, although respondent’s bond was not as strong as he would like it to be, he testified
that there “was something there.” Respondent also argues that the trial court did not properly
address JJ’s placement with his maternal aunt, a factor which weighs against termination. We
disagree.
“Once a statutory basis for termination has been shown by clear and convincing evidence,
the court must determine whether termination is in the child’s best interests.” In re LaFrance
Minors, 306 Mich. App. 713, 732-733; 858 NW2d 143 (2014), citing MCL 712A.19b(5). “[T]he
focus at the best-interest stage has always been on the child, not the parent.” In re Moss, 301 Mich
App 76, 87; 836 NW2d 182 (2013). “Best interests are determined on the basis of the
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preponderance of the evidence.” In re LaFrance Minors, 306 Mich. App. at 733. “In deciding
whether termination is in the child’s best interests, the court may consider 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 Olive/Metts Minors, 297 Mich. App.
at 41-42 (internal citations omitted). When the trial court makes its best-interests determination,
it may rely upon evidence on the entire record, including the evidence establishing the statutory
grounds for termination. In re Trejo, 462 Mich. 341, 353-354; 612 NW2d 407 (2000), superseded
by statute on other grounds as recognized in In re Moss, 301 Mich. App. at 83.
In addition, “a child’s placement with relatives weighs against termination . . . .” In re
Mason, 486 Mich. at 164. “[T]he fact that a child is living with relatives when the case proceeds
to termination is a factor to be considered in determining whether termination is in the child’s best
interests.” In re Olive/Metts Minors, 297 Mich. App. at 43. While the trial court may terminate
parental rights in lieu of placing the child with relatives, a child’s placement with relatives “is an
explicit factor to consider in determining whether termination was in the children’s best interests.”
Id. (quotation marks and citation omitted). “A trial court’s failure to explicitly address whether
termination is appropriate in light of the children’s placement with relatives renders the factual
record inadequate to make a best-interest determination and requires reversal.” Id.
In making its best-interests determination, the trial court noted that respondent was
currently unable to provide care for JJ, that respondent had very limited contact with JJ before
being incarcerated, and that respondent’s bond with JJ was not as strong as he would have liked.
Respondent argues that the record contains inconsistent statements with regard to his plan to
provide care for JJ. At the clinic evaluation, respondent stated that he wanted to be involved in his
children’s lives. We find this argument unconvincing. Respondent consistently stated on the
record that he is unable to provide care for JJ while he is incarcerated because his mother is
currently caring for two of his other children and he does not have any other family members who
can provide care for JJ. Although respondent made child support payments before being
incarcerated, he testified that he has not provided support since being incarcerated. Respondent
also stated at his clinic evaluation that he was willing to allow his parental rights to be terminated
because he was unable to provide care for JJ. This evidence weighs negatively against
respondent’s ability to parent and support JJ’s need for permanency and stability. Respondent also
argues that the evidence is inconsistent with respect to his bond with JJ. However, respondent
stated in his clinic evaluation that he only had “face to face” contact with JJ ten times before being
incarcerated. At the remand hearing, respondent confirmed that he had only limited contact with
JJ before being incarcerated.
Respondent also argues that the trial court did not properly consider that JJ was living with
his maternal great aunt. Respondent, however, misstates the record because the trial court took
judicial notice of the lower court file, which contained the clinic evaluation report. The clinic
evaluation report contained an interview with JJ’s great aunt, where she stated “that she can only
care for [JJ] temporarily and is not interested in assuming long term placement or adoption.” The
report also states that JJ’s maternal grandmother is “unable to care for [JJ] due to health reasons.”
JJ’s maternal aunt reported that she had a niece who had expressed interest in obtaining custody
of JJ. “However, it should be noted that every time it is time for her niece to meet with the worker
regarding planning for obtaining custody, she fails to follow through; consequently she is unsure
if her niece is actually interested.” Thus, the trial court did consider JJ’s current placement with a
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relative and determined that a permanent custody arrangement with a relative was unattainable. In
addition, respondent stated that he does not have any other family members who can provide care
for JJ. Therefore, on the basis of the record, respondent is unable to provide JJ with permanent
care and custody and the trial court did not clearly err by finding that termination of respondent’s
parental rights was in JJ’s best interests.
Affirmed.
/s/ James Robert Redford
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
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