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In re Deem

STATE OF MICHIGAN COURT OF APPEALS
Mar 20, 2018
No. 339180 (Mich. Ct. App. Mar. 20, 2018)

Opinion

No. 339180

03-20-2018

In re DEEM, Minors.


UNPUBLISHED Monroe Circuit Court Family Division
LC No. 15-023629-NA Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ. PER CURIAM.

Respondent-father appeals by right the trial court's order terminating his parental rights to his two minor children under MCL 712A.19b(3)(c)(i), (g), (h), and (j). We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises out of the parents' inability to provide proper care and custody to the children following their separation after six years of marriage. Evidence presented at the termination hearing showed that respondent was frequently incarcerated during the proceedings below, was a daily user of crack cocaine, had never possessed an adequate home for the children or a stable source of legal income, and had never participated in any of the services required by his case service plan, including drug screens and substance abuse treatment, apart from attending Alcoholics Anonymous and Narcotics Anonymous while incarcerated. Respondent had also missed the majority of supervised visitations and rarely communicated with his children. The parties stipulated that at the time the trial court made its termination decision, respondent had recently been convicted of two felonies and had been sentenced to a prison term of at least five years.

Before respondent's parental rights were terminated, the children's mother voluntarily agreed to the termination of her parental rights. She is not a party to this appeal.

A foster care and adoption specialist for Family and Community Services testified at the termination hearing that the children were doing well in their foster placement and were bonded with the foster parents. She further testified that she had investigated possible relative placements for the children suggested by respondent, including the children's paternal grandparents and respondent's cousin and her husband, but that no suitable placement had been found. The children's paternal grandmother testified that she was willing to have the children placed with her; however, she admitted that she did not then have room for them in her home, although she hoped to move to a larger home at some undetermined point in the future.

The trial court entered an order terminating respondent's parental rights under MCL 712A.19b(3)(c)(i) (the conditions that led to the adjudication continue to exist), MCL 712A.19b(3)(g) (the parent is unable to provide proper care and custody), MCL 712A.19b(3)(h) (parent's imprisonment for a period exceeding two years), and MCL 712A.19b(3)(j) (the child is reasonably likely to be harmed if returned to the parent's home). This appeal followed.

II. STATUTORY GROUNDS FOR TERMINATION

Respondent argues that the trial court clearly erred by determining that at least one statutory ground for termination had been proven by clear and convincing evidence. We disagree.

"To terminate parental rights, the trial court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence." In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). We review for clear error the trial court's decision concerning whether a statutory ground for termination has been proven. In re Medina, 317 Mich App 219, 236; 894 NW2d 653 (2016). "Only one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights, even if the court erroneously found sufficient evidence under other statutory grounds." Ellis, 294 Mich App at 32.

The trial court did not err by finding that termination was warranted under MCL 712A.19b(3)(h), which relates to parental imprisonment and "authorizes termination only if each of three conditions is met": (1) "the child will be deprived of a normal home for a period exceeding 2 years," (2) "the parent has not provided for the child's proper care and custody," and (3) "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." In re Mason, 486 Mich 142, 160-161; 782 NW2d 747 (2010).

The combination of the first two criteria—that a parent's imprisonment deprives a child of a normal home for more than two years and the parent has not provided for proper care and custody—permits a parent to provide for a child's care and custody although the parent is in prison; he need not personally care for the child. The third necessary condition is forward-looking; it asks whether a parent "will be able to" provide proper care and custody within a reasonable time. Thus, a parent's past failure to provide care because of his incarceration also is not decisive. [Id. at 161 (footnotes omitted).]

As respondent correctly notes, "[i]ncarceration alone is not a sufficient reason for termination of parental rights," nor is a criminal history. In re Mason, 486 Mich at 146. Nonetheless, in the instant case, clear and convincing evidence supports each of the three essential elements necessary to satisfy subsection (3)(h). The parties stipulated that, as of the day before the trial court rendered its decision in the termination hearing, respondent had been sentenced to a minimum prison term of five years, with credit for 230 days already served. Stipulations of fact are binding. Dana Corp v Appeal Bd of Mich Employment Security Comm, 371 Mich 107, 110; 123 NW2d 277 (1963). Therefore, there was clear and convincing proof that respondent would be unable to personally provide the children with a normal home for more than four years, which satisfies the first element. The second element was also satisfied; it was undisputed that respondent had not yet provided for the children's proper care and custody by arranging to have them live with a relative. Accordingly, only the third element was truly at issue—whether there was a reasonable expectation that respondent would be able to provide proper care and custody within a reasonable time considering the children's ages. After reviewing the record, we agree with the trial court's conclusion that no such reasonable expectation existed.

Even assuming that respondent would have been willing and able to personally provide proper care and custody for the children immediately upon his release from prison, it would have required the children to wait more than four years. Given the children's young ages at the time of termination, and their emotional struggles with having been removed from numerous homes, four additional years in foster care was not a reasonable period of time. See in re Trejo, 462 Mich 341, 359; 612 NW2d 407 (2000).

Additionally, the trial court did not err by determining that there was no reasonable expectation that respondent could arrange for the children's placement with a relative within a reasonable timeframe. Respondent's cousin and her husband indicated that they would only be interested in having the children placed with them if respondent's parental rights were terminated and they were able to adopt the children. And although the paternal grandmother testified at the termination hearing that she wanted the children to be placed with her, she also acknowledged that at that time she was unable to house them. Moreover, the foster care and adoption specialist testified that the paternal grandmother had previously told her that "she did not want to take any more children." Given this testimony, it was reasonable for the trial court to find that the paternal grandmother's hope of purchasing a larger home at some undetermined point in the future was not a solid plan for providing the children with care and custody within a reasonable time. And given the vacillating nature of the paternal grandmother's expressions regarding her desire to care for the children, we defer to the trial court's implicit finding that while she perhaps genuinely hoped to purchase a larger home in the future, her overall testimony was nevertheless not credible. See Medina, 317 Mich App at 227 ("[w]e must defer to the special ability of the trial court to judge the credibility of witnesses") (quotation marks and citation omitted).

In sum, because clear and convincing evidence supports each of the three essential elements necessary for termination under subsection (3)(h), the trial court did not err by concluding that termination was warranted under that subsection. Having reached that conclusion, we need not analyze the other statutory grounds cited by the trial court. See Ellis, 294 Mich App at 32. We note, however, that we would reach the same conclusion with regard to subsections (3)(c)(i) and (3)(g) because in cases such as this one, the evidence supporting those grounds generally mirrors the evidence supporting subsection (3)(h). See Mason, 486 Mich at 164-165.

III. BEST-INTEREST DETERMINATION

Respondent also argues that the trial court erred by finding, by a preponderance of the evidence, that termination of his parental rights was in the children's best interests. We disagree. We review the trial court's best-interest determination for clear error. Medina, 317 Mich App at 236.

MCL 712A.19b(5) provides that "[i]f 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." As this Court recently explained:

Although a reviewing court must remain cognizant that the fundamental liberty interest of natural parents in the care, custody, and management of their children does not evaporate simply because they have not been model parents or have lost temporary custody of their children to the State, at the best-interest stage, the child's interest in a normal family home is superior to any interest the parent has. Therefore, once a statutory ground for termination has been established by clear and convincing evidence, a preponderance of the evidence can establish that termination is in the best interests of the child. [Medina, 317 Mich App at 237 (quotation marks, citations, and brackets omitted).]
"In making its best-interest determination, the trial court may consider the whole record, including evidence introduced by any party." Id. at 237 (quotation marks and citation omitted).
[T]he 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. The trial court may also consider a parent's history of domestic violence, the parent's compliance with his or her case service plan, the 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, 713-714; 846 NW2d 61 (2014).]
Additionally, the court may consider the best-interest factors that are utilized when making child custody decisions in divorce actions, as enumerated at MCL 722.23. Medina, 317 Mich App at 238.

The trial court did not clearly err by finding, by a preponderance of the evidence, that termination of respondent's parental rights was in the children's best interests. Although the children were once bonded with respondent, the foster care and adoption specialist testified that the parent-child bond had deteriorated significantly. Respondent admitted that he had last seen the children more than seven months before the termination hearing. Given the children's young ages and lack of communication with respondent, the deterioration of that bond is understandable. Furthermore, "the 'value' a child derives from the parent-child relationship is not . . . universally positive; if it were, there would be little need for child protective proceedings." Id. at 240. To the extent that any bond remains between respondent and the children, it does not outweigh other concerns that support the trial court's conclusion. For example, there was ample evidence that the foster parents, who were willing to adopt the children and provide them with the permanence they require, were capable of providing the children with a loving, permanent, financially stable household. It was also established that the children wanted to remain in their placement with the foster parents, and had bonded with them as parents.

Respondent argues, with respect to both statutory grounds for termination and the best-interest determination, that it "seemed" as if the trial court afforded undue weight to the foster care and adoption specialist's testimony. We reject this argument as meritless. In termination proceedings, it is the duty of the trial court, not this Court, to judge the credibility of the witnesses and the weight of their testimony. See MCR 2.613(C); In re Miller, 433 Mich 331, 344; 445 NW2d 161 (1989). Because respondent offers no evidence that the trial court actually did afford the foster care and adoption specialists' testimony undue weight, we defer to the trial court on the issue of her credibility and the weight of her testimony. --------

In short, the evidence clearly showed that the children were better served by termination than by waiting—for more than four years—to see whether respondent might ultimately provide them with what they had already found—a stable, permanent home.

Affirmed.

/s/ Elizabeth L. Gleicher

/s/ Mark T. Boonstra

/s/ Jonathan Tukel


Summaries of

In re Deem

STATE OF MICHIGAN COURT OF APPEALS
Mar 20, 2018
No. 339180 (Mich. Ct. App. Mar. 20, 2018)
Case details for

In re Deem

Case Details

Full title:In re DEEM, Minors.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Mar 20, 2018

Citations

No. 339180 (Mich. Ct. App. Mar. 20, 2018)