Opinion
No. 354536
01-14-2021
In re LJE, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Clinton Circuit Court Family Division
LC No. 20-029313-AF Before: GADOLA, P.J., and BORRELLO and M. J. KELLY, JJ. PER CURIAM.
Respondent appeals as of right the order of the trial court terminating her parental rights to her minor child under MCL 712A.19b(3)(f) (child has a guardian, and parent has substantially failed to financially support or to visit or contact the child for two years). We affirm the trial court's finding that a statutory basis for termination was demonstrated, but remand to the trial court for further proceedings.
I. FACTS
Petitioner is the grandmother of the minor child, LJE. Respondent is the child's biological mother; the child's biological father is petitioner's son. Petitioner was appointed as the child's guardian in 2014 in Shiawassee County when the child was one year old. The proceedings later were transferred to Macomb County. In 2020, petitioner filed a petition in Macomb County to adopt LJE, and thereafter filed a supplemental petition in Clinton County, seeking to terminate the parental rights of both parents for the purpose of facilitating the adoption. At the hearing on the supplemental petition, petitioner testified that she has been the child's guardian since he was 14 months old. Petitioner testified that LJE receives social security disability benefits, and that she and the child both receive public assistance that includes food benefits.
Petitioner testified that in the two years preceding the filing of the petition for adoption respondent visited the child less than once a month, usually saw the child on his birthday and on holidays, and that months would pass without respondent calling or visiting the child. She testified that respondent generally only visited if the child requested to see respondent or if petitioner called and asked for assistance with the child. Petitioner further testified that before the hearing, respondent had not had contact with the child for three months or longer.
Petitioner also testified that respondent did not contribute to the child's financial support. Petitioner related an incident during the two years before filing the petition for adoption in which she asked respondent for financial help because she and the child were homeless, but that respondent refused to assist her financially. Petitioner testified that during the two-year period before filing the adoption petition respondent one time gave her $50, and that sometimes respondent's boyfriend would give her money for gas so that she could bring the child to visit respondent. Petitioner testified that respondent did not provide clothing or food for the child other than some clothing respondent gave the child for Christmas.
Respondent testified that the child was placed in petitioner's care in 2014 because at that time respondent's home was not safe. Respondent testified that she purchased clothes and toys for the child, but kept them at her home. She testified, however, that if ordered to provide support for the child she would not be able to do so because she did not have a job. Respondent acknowledged that in 2019 she saw the child only occasionally during the summer, on his birthday in September, and at Christmas.
At the conclusion of the hearing, the trial court found that both parents had the ability to visit the child; they always knew where the child was, always had petitioner's telephone number, and petitioner facilitated some contact with the parents. The trial court noted that in 2018, the guardianship annual review report indicated that respondent had not seen the child for six months. The trial court found that respondent's contact with the child in the two years before the filing of the adoption petition was not regular or substantial, and that most of the contact was facilitated by petitioner. The trial court further found that respondent had the ability to provide support for the child but that respondent had not contributed regular and substantial support for two or more years before the filing of the adoption petition; the trial court observed that respondent had purchased clothes and toys for the child but had kept them at her house. The trial court terminated respondent's parental rights to the child for the reason that she, "having the ability to support or assist in supporting the child, has failed or neglected to provide regular and substantial support for the child for period of 2 years or more before the filing of the petition," and that respondent "having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition." The trial court also terminated the parental rights of the child's father. Respondent now appeals.
The father did not contest the petition in the trial court and is not a party to this appeal. --------
II. DISCUSSION
A. STATUTORY BASIS
Respondent contends that the trial court erred by determining that clear and convincing evidence demonstrated that termination of her parental rights was warranted under MCL 712A.19b(3)(f). We disagree.
We review for clear error the trial court's decision that at least one statutory basis to terminate parental rights has been proven by clear and convincing evidence, as well as its factual findings. In re Keillor, 325 Mich App 80, 85; 923 NW2d 617 (2018). The trial court's decision to terminate parental rights is clearly erroneous if "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003). This Court will not conclude that a finding by the trial court is clearly erroneous unless it is more than possibly or probably incorrect. In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
To terminate parental rights, the trial court must find that at least one basis for termination under MCL 712A.19b(3) has been proven by clear and convincing evidence. In re Keillor, 325 Mich App at 85. In this case, the trial court terminated respondent's parental rights under MCL 712A.19b(3)(f), which provides for the termination of parental rights as follows:
(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:
* * *
(f) The child has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8206, and both of the following have occurred:
(i) The parent, having the ability to support or assist in supporting the minor, has failed or neglected, without good cause, to provide regular and substantial support for the minor for a period of 2 years or more before the filing of the petition or, if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the petition.
(ii) The parent, having the ability to visit, contact, or communicate with the minor, has regularly and substantially failed or neglected, without good cause, to do so for a period of 2 years or more before the filing of the petition.
Regarding MCL 712A.19b(3)(f)(i), the trial court found that respondent, despite having the ability to support or assist in supporting the child, failed or neglected to do so without good cause in the two years before the filing of the petition. This finding is supported by the record. Petitioner testified that during the two-year period before she filed the petition for adoption respondent provided virtually no financial support for the child. Respondent testified that she was sometimes employed and bought clothes and toys for the child that she kept at her home. She agreed, however, that she did not provide financial support for the child even though for a time in 2018 petitioner and the child were homeless, while respondent had a home.
Regarding MCL 712A.19b(3)(f)(ii), the trial court found that despite having the ability to visit, contact, or communicate with the child, respondent regularly and substantially failed or neglected, without good cause, to do so during the two years before the filing of the petition for adoption. The trial court observed that respondent always knew where the child was and knew petitioner's telephone number, and that petitioner facilitated some contact between the child and respondent. The trial court found that in 2018, the guardianship annual review report indicated that respondent had not seen the child for six months, that respondent's contact with the child was not regular or substantial, and that most of the contact was facilitated by petitioner. Respondent acknowledged that in 2019 she saw the child only occasionally during the summer, on his birthday in September, and at Christmas.
In sum, the trial court did not clearly err by finding that clear and convincing evidence supported termination of respondent's parental rights to the child under MCL 712A.19b(3)(f). The record supports the findings that respondent failed or neglected, without good cause, to provide regular and substantial financial support to the child and also regularly and substantially failed to visit, contact, or communicate with the child during the two years preceding the filing of the petition for adoption, although having the ability to do so.
B. BEST INTERESTS OF THE CHILD
Respondent also contends that the trial court clearly erred by finding that a preponderance of the evidence demonstrated that termination was in the child's best interests. Once a statutory ground for termination has been demonstrated, the trial court is required to terminate the parent's parental rights if a preponderance of the evidence establishes that termination is in the best interests of the child. MCL 712A.19b(5); In re Medina, 317 Mich App 219, 237; 894 NW2d 653 (2016). A finding by the trial court that termination is in the best interests of the child is required for termination of parental rights. MCL 712A.19b(5); see also In re Olive/Metts Minors, 297 Mich App 35, 42; 823 NW2d 144 (2012) (The trial court has the duty to decide the best interests of each child). We review for clear error the trial court's decision regarding a child's best interests. In re Medina, 317 Mich App at 226.
In this case, the record does not indicate that the trial court determined the best interests of the child. The order terminating respondent's parental rights does not indicate a finding regarding the child's best interests, nor did the trial court make a finding on the record regarding the child's bests interests. As a result, remand is necessary to permit the trial court to determine this issue.
We affirm the trial court's finding that a statutory basis for termination was proven by clear and convincing evidence, but remand to the trial court for a determination of the best interests of the child. We retain jurisdiction.
/s/ Michael F. Gadola
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
ORDER
Michael F. Gadola Presiding Judge Stephen L. Borrello Michael J. Kelly Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for further proceedings consistent with the opinion of this Court. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 35 days of the Clerk's certification of this order, and they shall be given priority on remand until they are concluded. As stated in the accompanying opinion, the trial court shall make a finding on the record regarding the child's best interests. The trial court shall file its order addressing the child's best interests with this Court within 42 days of the Clerk's certification of this order. The proceedings on remand are limited to this issue.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of the proceedings.
/s/_________
Presiding Judge
A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on
January 14, 2021
Date
/s/_________
Chief Clerk