Opinion
No. 338467
10-12-2017
In re S. BROWN, Minor.
UNPUBLISHED Schoolcraft Circuit Court Family Division
LC No. 2016-003224-NA Before: K. F. KELLY, P.J., and BECKERING and RIORDAN, JJ. PER CURIAM.
Respondent mother appeals as of right the trial court's order terminating her parental rights to her minor child. We vacate the trial court's order and remand for further proceedings.
Respondent and the child are members of the Sault Ste. Marie Tribe of Chippewa Indians. The Tribe participated in the case in the trial court, but has not intervened in this appeal. --------
Petitioner sought custody of the child based on allegations of respondent's criminality, serious injuries sustained by another of respondent's children while in respondent's custody, and respondent's failure to benefit from services rendered during proceedings involving respondent's other children. The trial court denied petitioner's initial request to remove the child from respondent's custody, but subsequently authorized the child's removal after respondent was arrested and incarcerated on new, drug-related charges.
Although respondent raises several issues on appeal, one issue warrants a remand for further proceedings. Specifically, the trial court erred by terminating respondent's parental rights without articulating a proper statutory ground for termination under MCL 712A.19b(3). In an action to terminate parental rights, the petitioner must prove by clear and convincing evidence that at least one statutory ground for termination in MCL 712A.19b(3) exists. MCR 3.977(A)(3) and (H)(3); In re Trejo, 462 Mich 341, 356; 612 NW2d 407 (2000). In this case, the supplemental petition filed by petitioner did not identify a specific statutory ground in MCL 712A.19b(3) under which termination was requested. Moreover, in its decision on the record, although the trial court properly observed that a statutory ground for termination must be established by clear and convincing evidence, and it rendered findings consistent with those one might find associated with several statutory grounds, it did not actually identify a statutory ground under MCL 712A.19b(3) in support of its decision. Instead, the trial court stated the following regarding the statutory bases for its decision to terminate respondent's parental rights:
In order to terminate parental rights of a child, the Court must find at least one of the statutory grounds supporting termination by clear and convincing evidence. And, in this case, the petitioner is suggesting that the grounds would be that respondent mother when able to do so has neglected or refused to provide proper care or necessary support, education, medical, surgical or other care necessary for the child's health or morals, or she has subjected the child to a substantial risk of harm or her mental—to his or her mental wellbeing, or he or she has abandoned the child without proper custody of guardianship. And we certainly have no abandonment issues here. So the—that issue is not present. Also, the petitioner suggests that the home environment by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of the parent, guardian, nonparent adult, or other custodian is an unfaith—unfit place for the child to live. And, in this case, the only party that we're really talking about is the respondent mother whose behaviors had led to this petition. . . . Based on the record developed, this Court makes the following findings. . . . And, therefore, the Court does find that there is a statutory basis; and I've already read those into the record. I am going to indicate additionally, the Court is able to determine—well, that there is clear and convincing evidence for a statutory ground and that the household was just not appropriate as outlined, and that it is appropriate for the Court to terminate parental rights. [Emphasis added.]
The foregoing emphasized language, on which the trial court relied to find that a statutory basis for termination was established by clear and convincing evidence, actually refers to circumstances described in MCL 712A.2(b)(1) and (2), which is the statute authorizing a court to exercise jurisdiction over a child. The trial court did not refer to any statutory ground listed in, or recite any statutory language from, MCL 712A.19b(3), which is the statute that sets forth permissible statutory grounds for termination. The trial court's written order likewise does not cite a statutory basis for termination. Moreover, as previously indicated, even the supplemental petition filed by petitioner failed to cite a specific statutory ground for termination under MCL 712A.19b(3).
MCR 3.977(I)(3) provides that "[a]n order terminating parental rights . . . may not be entered unless the court makes findings of fact, states its conclusions of law, and includes the statutory basis for the order." The court may state its findings of fact and conclusions of law "on the record or in writing." MCR 3.977(I)(1); see also MCL 712A.19b(1) ("[t]he court shall state on the record or in writing its findings of fact and conclusions of law with respect to whether or not parental rights should be terminated"). "Brief, definite, and pertinent findings and conclusions on contested matters are sufficient." MCR 3.977(I)(1). In this case, the trial court made extensive findings of fact, but it did not cite a valid statutory basis for termination in either its decision on the record or written order, and the language it cited in its decision on the record pertained to statutory grounds for exercising jurisdiction. As such, the court failed to cite a valid statutory basis for its decision to terminate respondent's parental rights.
Petitioner and the minor child argue that reversal is not required because the trial court's findings of fact support the existence of various statutory grounds for termination in MCL 712A.19b(3), notably subsections (3)(c)(i) (the conditions that led to the adjudication continue to exist and are not likely to be resolved within a reasonable time) and (g) (parent failed to provide proper care or custody and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time) of that statute. However, this Court's review is not de novo, see In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009), and In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011), and neither the supplemental petition filed by petitioner nor the trial court's decision cited a statutory basis for termination in MCL 712A.19b(3). It would be inappropriate for this Court to simply review all of the evidence and attempt to glean which proper statutory ground, if any, the trial court was actually relying on or attempt to determine if clear and convincing evidence existed to warrant termination of respondent's parental rights under an unpleaded and unspecified subsection of MCL 712A.19b(3).
Because the trial court's decision is devoid of any properly articulated, valid statutory basis, we vacate and remand for further proceedings pursuant to all relevant statutes and court rules, including the Indian Child Welfare Act, 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act, MCL 712B.1 et seq.
Vacated and remanded for further proceedings. We retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
/s/ Michael J. Riordan Court of Appeals, State of Michigan
ORDER
Docket No. 338467 LC No. 2016-003224-NA Kirsten Frank Kelly Presiding Judge Jane M. Beckering Michael J. Riordan 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.
On remand, the trial court shall hear and decide the matter within 56 days of the Clerk's certification of this order. The trial court shall apply all relevant statutes and court rules, including the Indian Child Welfare Act, 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act, MCL 712B.1 et seq. The trial court shall make findings of fact and a determination on the record, limited to the issues raised in the concurrent opinion.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, respondent 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.
Kirsten Frank Kelly
Presiding Judge
A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on
October 12, 2017
Date
/s/_________
Chief Clerk