Opinion
No. 353514
02-11-2021
In re K. BOWLES, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court Family Division
LC No. 17-134397-NA Before: M. J. KELLY, P.J., and RONAYNE KRAUSE and REDFORD, JJ. PER CURIAM.
Respondent appeals as of right the termination of his parental rights to the minor child, KB, pursuant to MCL 712A.19b(3)(g) (failure to provide proper care and custody) and MCL 712A.19b(3)(m) (parent convicted of violation of a criminal statute that includes as an element the use of force or the threat of force and that subjects the parent to sentencing under MCL 769.11 and continuing the parent-child relationship would be harmful to child). We affirm.
I. BACKGROUND
During June 2017, respondent saw KB's mother with an infant in a stroller. He approached and asked about the child and whether it was his. KB's mother denied that respondent fathered the child but respondent looked closely at KB and noticed traits that suggested to him that he fathered the child. Later, KB's mother and KB spent a couple nights at respondent's home but KB's mother left with KB without telling respondent her intentions. Respondent never saw KB again.
The Department of Health and Human Services (DHHS) initiated child protective proceedings against KB's mother and the court removed KB from her care and custody around August 2017. During those proceedings, respondent was identified as one of several putative fathers. Respondent, on his own initiative attended a hearing in October 2017 at which he told the court that he hoped that KB was his child. That prompted the court to order a DNA test and set a hearing for two weeks later.
KB's mother's parental rights were terminated in a separate trial and she is not a party to this appeal.
Before submitting to the DNA test, respondent turned himself in to law enforcement because he had an outstanding warrant for his arrest, was taken into custody, and spent nine months in the county jail related to the pending criminal case against him. In that case, he pleaded guilty to 1 of 36 charged felony offenses, assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84, and the court sentenced him as a third-offense habitual offender, MCL 769.11, to a prison term of 4 years and 9 months to 20 years' imprisonment under which his earliest release date could be in July 2022. Respondent's maximum prison term extends to October 17, 2037.
The elements of AWIGBH are: "(1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder." People v Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005) (quotation marks and citation omitted).
The other 35 counts were dismissed as part of the plea agreement in that case. The record indicates that respondent entered another guilty plea to AWIGBH, MCL 750.84, committed on August 4, 2017, in a separate case. The court sentenced respondent to serve 4 years and 9 months to 10 years' imprisonment for that offense.
At the time of the termination trial proceeding, KB was one month from turning three years old and had been in foster care for almost two years. --------
Although as early as June 2017 respondent suspected that he had fathered KB, he never told his own mother. While in the county jail, in June 2018, respondent's mother learned for the first time about KB from mail intended for respondent. That prompted her to inform DHHS that respondent was in jail on pending charges. DHHS arranged for respondent to have DNA testing which determined him to be KB's biological father. The trial court declared respondent KB's legal father in December 2018. DHHS filed a petition to terminate respondent's parental rights.
Once respondent became KB's legal father, he sought placement of KB with respondent's mother. DHHS performed a home study after which it recommended that KB remain in foster care because of a number of concerns including respondent's mother's physical health, the safety of her home, the fact that she expressed having serious financial concerns, and because she had a granddaughter living with her who previously had been placed on the DHHS child abuse and neglect central registry. The trial court considered evidence presented by the parties and heard their arguments regarding KB's placement, and declined to place KB with respondent's mother. The trial court ordered that KB remain in his foster home where he had been for about a year and a half.
The adjudication and termination phases of respondent's case were conducted separately so that respondent's criminal matters could be resolved before the termination phase. At the beginning of the termination trial, petitioner orally amended the petition to include MCL 712A.19b(3)(m) as an additional ground for termination of respondent's parental rights. At the conclusion of the trial, the trial court found that clear and convincing evidence established statutory grounds under MCL 712A.19b(3)(g) and MCL 712A.19b(3)(m)(ii) for termination of respondent's parental rights and that termination served KB's best interests.
II. STATUTORY GROUNDS
Respondent argues that the trial court clearly erred by finding that clear and convincing evidence established statutory grounds for termination. We disagree.
To terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the enumerated statutory grounds has been established. MCL 712A.19b(3); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). "If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). The petitioner must prove by a preponderance of the evidence that termination of parental rights is in the child's best interests. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013).
We review for clear error a trial court's finding "that a ground for termination has been proven by clear and convincing evidence." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012) (citations omitted). "A trial court's decision is clearly erroneous '[i]f 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.' " Id. at 41 (citation omitted; alteration in original).
The trial court terminated respondent's parental rights after finding that clear and convincing evidence established statutory grounds under MCL 712A.19b(3)(g) and (m)(ii), which provide:
(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:
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(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.
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(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:
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(ii) A violation of a criminal statute that includes as an element the use of force or the threat of force and that subjects the parent to sentencing under section
10, 11, or 12 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11, and 769.12.
As a preliminary matter, the record reflects that the trial court incorrectly applied the 2018 pre-amendment version of MCL 712A.19b(3)(g) which then provided "[t]he 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." The Legislature amended MCL 712A.19b(3)(g), effective June 12, 2018, 2018 PA 58, to provide as set forth above. The trial court erred by failing to apply the correct law. Nevertheless, reversal is not warranted if this Court concludes that the trial court did not clearly err by finding at least one statutory ground for termination. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009). In such circumstances, this Court is not required to address the additional statutory grounds determined by the trial court. Id.
In this case, the trial court found that clear and convincing evidence also established grounds for terminating respondent's parental rights under MCL 712A.19b(m)(ii). The record reflects that the trial court applied the correct law respecting that statutory ground. Accordingly, we focus our review upon the trial court's statutory grounds decision under MCL 712A.19b(m)(ii), and decline to reverse the trial court's statutory grounds decision based solely upon its incorrect application of the pre-amendment version of MCL 712A.19b(g).
The trial court analyzed the evidence and found that petitioner proved by clear and convincing evidence that statutory ground existed for termination of respondent's parental rights under MCL 712A.19b(3)(m)(ii). Termination of parental rights pursuant to MCL 712A.19b(3)(m)(ii) requires that petitioner establish that the respondent was convicted of violation of a criminal statute that includes as an element the use of force or the threat of force and that subjects the parent to sentencing under, among other sentence enhancement statutory provisions, MCL 769.11, and that continuing the parent-child relationship with the parent would be harmful to the child. For a conviction of AWIGBH, two elements must be proven: "(1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder." Brown, 267 Mich App at 147.
In this case, the record establishes that respondent pleaded guilty to the commission of AWIGBH, the court accepted his plea, and the court sentenced him as a third-offense habitual offender under MCL 769.11. Respondent does not dispute that he was convicted of AWIGBH, MCL 750.84, and sentenced as a third-offense habitual offender, MCL 769.11. Clear and convincing evidence also establishes that respondent never established a parent-child relationship with KB. Because respondent lacked a relationship with KB and made no effort to establish a relationship with him by contacting KB before or during respondent's incarceration, the trial court could conclude that continuation of a nonexistent parent-child relationship would be harmful to KB. The facts in this case being indisputable, we conclude that the trial court did not err by finding that clear and convincing evidence established the statutory ground for termination of respondent's parental rights under MCL 712A.19b(3)(m)(ii).
Respondent argues that the factual basis offered when he pleaded guilty did not involve the use or threat of force. We reject this argument because the statutory grounds require only that respondent be convicted of an offense, an element of which is the threat or use of force, and the facts underlying that conviction are irrelevant.
Respecting whether termination was in the KB's best interests because continuing the parent-child relationship with the parent would be harmful to the child, as required under MCL 712A.19b(m)(ii), the record reflects that respondent never provided for KB's care and custody. Respondent testified that he saw KB twice while an infant, once in a stroller on the sidewalk, and another time when KB's mother and KB stayed with respondent for two days. Other than those brief encounters, respondent made no effort to contact KB nor played any role in KB's life.
Respondent became incarcerated and later he pleaded guilty in two separate cases to the commissions of felonies. Under the terms of his sentence for one of his convictions of AWIGBH, respondent could not expect to be released until July 2022 at the earliest. The record does not indicate that he took steps to financially support KB or make any personal contact with him. During his incarceration from October 2017 to June 2018, respondent made no effort to communicate with DHHS regarding KB. Respondent's mother, however, contacted DHHS to advise regarding respondent's whereabouts. While in jail respondent learned that he fathered KB.
"The mere present inability to personally care for one's children as a result of incarceration does not constitute grounds for termination." In re Mason, 486 Mich 142, 160; 782 NW2d 747 (2010). "An incarcerated parent can exercise the constitutional right to direct the care of his or her children while incarcerated[.] For example, an incarcerated parent can choose who will care for his children while he is imprisoned." In re Sanders, 495 Mich 394, 420-421; 852 NW2d 524 (2014). "Michigan traditionally permits a parent to achieve proper care and custody through placement with a relative." Mason, 486 Mich at 161 n 11 (citation omitted).
After determination of respondent's parentage of KB and his becoming KB's legal father, respondent sought KB's placement with respondent's mother. The DHHS caseworker testified at the jurisdiction phase of the trial that she conducted a home study of respondent's mother's home. She testified that respondent's mother had health issues which required home dialysis. She observed medical equipment in the home including syringes and medications in various open placements in the home potentially accessible by a child. The caseworker spoke with respondent's mother who expressed serious concern about her financial ability to care for another child. The caseworker also learned that a granddaughter who had been placed on the DHHS central registry lived with respondent's mother. DHHS did not find respondent's mother's home suitable and recommended not changing KB's placement from his foster home to respondent's mother. KB's attorney agreed. The parties disputed the matter and after considering all the evidence and KB's best interests under the circumstances, the trial court declined to change KB's placement.
At the termination trial held in February 2020, another caseworker testified that KB lived with his foster family since 2017, bonded with his foster parents, and they met all of his needs. She testified that KB did not know respondent. Respondent had made no effort to contact or communicate with KB. She also testified that respondent's mother visited KB monthly and would continue to do so. Respondent's mother testified that her granddaughter no longer lived with her and that she had the ability to care for KB. Respondent testified that his mother had the ability to care for KB.
The record reflects that the trial court determined on more than one occasion that KB's placement in his foster home best provided for his needs. The trial court found that respondent had not provided care for KB; and because of his incarceration that could last for many years, he would not be able to do so. Based upon the record before it, the trial court made what appears to be a close call respecting respondent's mother's ability to provide for the care and custody of KB. The record indicates that the trial court properly considered all of the evidence. We defer to the trial court's special ability to judge the credibility of witnesses. In re Gach, 315 Mich App 83, 93; 889 NW2d 707 (2016). Close examination of the record indicates that the trial court did not err in finding that clear and convincing evidence established statutory ground for termination of respondent's parental rights under MCL 712A.19b(m)(ii).
Respondent also argues that the trial court clearly erred by finding that termination of his parental rights served KB's best interests. We disagree.
We review for clear error the trial court's determination that termination served the child's best interests. In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016). "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." Id. (quotation marks and citation omitted).
When determining whether termination is in the best interests of the child, the trial court should place its "focus on the child rather than the parent." Id. at 411. "[T]he 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, 297 Mich App at 41-42 (citations omitted). "The trial court may also consider a 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, 714; 846 NW2d 61 (2014).
In this case, the record reflects that the trial court considered the applicable factors for its determination regarding KB's best interests. KB had no bond with respondent. Respondent had not seen KB since he was three months old, had not contacted or communicated with him in any manner. KB did not know respondent. The trial court properly focused on KB's need for permanency, stability, finality, and the possibility of adoption. The record indicates that KB thrived in his placement in his foster home and his foster family expressed love for him and the willingness to adopt him. KB knew his foster parents as his mother and father. KB's foster family had the ability and desire to provide him the permanency and stability that respondent lacked and he failed to establish a parental relationship with KB at any point during KB's life. The record does not establish that the trial court clearly erred in finding that a preponderance of the evidence favored termination of respondent's parental rights and that termination served KB's best interests.
Affirmed.
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
/s/ James Robert Redford