Opinion
SC 167387 COA: 366175
11-01-2024
In re GORDON, Minor.
Bay CC Family Division: 21-013176-NA
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the April 11, 2024 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Cavanagh, J. (concurring).
I concur with the majority's order denying leave. I write to explain why I believe that the Court of Appeals properly affirmed the termination of respondent-father's rights despite an error in its reasoning. Despite the fact that the Court of Appeals erroneously affirmed the trial court's decision on the basis of a statutory ground not actually relied upon by the trial court, MCL 712A.19b(3)(a)(ii), I believe that the trial court's decision to terminate respondent-father's parental rights under MCL 712A.19b(3)(g) was supported by clear and convincing evidence.
The child, JG, and her siblings were removed from their mother and placed in foster care in 2021 while respondent was incarcerated in Texas. Respondent has been imprisoned since 2018 and had been in and out of prison for approximately seven years leading up to the termination. According to the Texas Department of Criminal Justice, respondent's projected release date is August 9, 2029, with a maximum sentence date of August 19, 2032. Respondent contacted the child for the first time after removal when the trial court permitted him to write letters. He has never met JG in person. The Department of Health and Human Services (DHHS) later implemented a case service plan (CSP) requiring respondent to attend substance-abuse and life-skills programming and to maintain employment while in prison. The DHHS sent respondent parenting worksheets with return envelopes and stamps for letters to JG, encouraging him to write frequently.
The mother has not appealed the termination of her rights in this Court.
It appears that the release date has been extended. At the time of the termination trial, the trial court relied on the projected release date of January 17, 2026.
Early in the proceedings, respondent identified his parents, who live in Texas, and his grandmother in Hawaii as potential relative placements. However, when the trial court took temporary jurisdiction, it placed JG in foster care with her siblings because the proposed placements were out-of-state and reunification with mother was the goal. Like respondent, his parents have never met JG. When the trial court took jurisdiction in January 2022, the court noted that respondent had failed to pay child support, did not have a relationship with his mother, and that his mother was unable to facilitate parenting time between JG and her mother in Michigan.
Approximately one year after the trial court took jurisdiction over JG under MCL 712A.2(b)(1), the DHHS filed a supplemental petition to terminate respondent's rights (alongside a petition to terminate the mother's rights) when he stopped communicating with the caseworker and JG. Throughout the case, respondent had unresolved barriers relating to his incarceration, substance abuse, emotional stability, and parenting skills. At the termination trial, a caseworker testified that respondent sent JG a total of 11 letters and that they were generally appropriate, but that respondent failed to write at least two letters per month as suggested. JG wrote one letter in response but declined to write more. The worker further observed that respondent had not complied with his CSP and made little effort to participate in prison programming.
JG's therapist testified that it would not be beneficial for JG to maintain a relationship with respondent because he was essentially just "a pen pal with the name of Dad." The therapist further testified that JG simply did not know respondent personally and that it would not be in her best interests to continue the relationship. Finally, the therapist did not believe that respondent would be able to provide the child with stability and permanency in a reasonable amount of time.
Respondent testified that he was inconsistent with writing letters to JG because he had been moved around the prison system several times and many of his letters were returned unsent. Although he attempted to fill out the parenting packets, he sometimes lacked stamps. He was unable to participate in prison programming to comply with the CSP because many had waitlists or were unavailable. Respondent also testified that he had a house and a car that his parents were maintaining for him, as well as a job lined up upon his release expected in October 2023. Further, he stated that he would be able to provide for JG, but that it might take him up to a year and a half to be stable enough to care for her independently. He continued to request that JG be placed with his parents.
In ruling on the termination, the trial court observed that when the children were previously removed in Texas, respondent knew about mother's substance-abuse problems but left JG in her mother's care, respondent never attempted to meet or establish custody of JG, and respondent's parents declined to take JG. In addition, respondent and his parents have never met JG. The trial court observed that given respondent's identified barriers and the inability of the DHHS to administer psychological or substance-abuse evaluations, it was unclear whether respondent would be able to maintain sobriety outside of prison, where he has spent most of his adult life. Further, the court noted that respondent's engagement with letter writing, parenting education, and his CSP was met with mixed success. And given respondent's earliest known release date in 2026, there was no evidence that he would be able to provide proper care and custody in a reasonable amount of time. Regarding a potential guardianship placement, the court opined that removing JG from a foster care placement with her siblings and placing her with her paternal grandparents in Texas would not be in her best interests. The court additionally concluded that termination of respondent's parental rights was in JG's best interests because respondent could not provide her with stability and permanency within a reasonable amount of time.
In my view, the trial court properly found that statutory grounds for termination existed by relying on MCL 712A.19b(3)(g)-whether a parent will be able to provide proper care and custody of the child within a reasonable time considering the child's age. Respondent has almost no relationship with JG. He has never met her in person and has only communicated through 11 letters during the proceedings-several of which were inappropriate and had to be processed by JG during therapy. Moreover, his projected release date at the time of trial was 2026, which has now been extended to 2029, and respondent testified that he would need up to a year and a half of transition time after release before he could independently care for JG. Given the sheer amount of time before his release, the complete lack of a parent-child bond, respondent's unresolved barriers pertaining to substance abuse and parenting skills, and that placement with respondent's relatives was inappropriate, termination was appropriate under ground (g). The DHHS need only carry its burden of establishing one statutory ground for termination by clear and convincing evidence. In re JK, 468 Mich. 202, 210 (2003); MCR 3.977(E)(3). Therefore, the trial court did not clearly err by concluding that statutory grounds to terminate existed under Subsection (g).
However, as respondent rightly argues, the Court of Appeals erred by only addressing and affirming on the statutory ground MCL 712A.19b(3)(a)(ii) (desertion for 91 or more days). The trial court did not actually apply that statutory ground when terminating respondent's rights. Instead, the trial court relied upon MCL
712A.19b(3)(c)(i), (g), and (j). But as discussed earlier, termination was supported under ground (g), which the trial court did rely upon. Because the Court of Appeals reached the right result, albeit for the wrong reasons, I do not believe that this Court's intervention is warranted.
Respondent also argues that the DHHS failed to adequately investigate placement of JG with his relatives. See In re Mason, 486 Mich. 142, 146, 161, 163-164 (2010). I agree with the Court of Appeals that this argument lacks merit, as the trial court repeatedly (and correctly) concluded that placement with respondent's relatives would not be in the child's best interests.
Where the trial court's decision to terminate respondent's rights was supported by clear and convincing evidence under MCL 712A.19b(3)(g) and termination was in the best interests of the child, I concur in the result reached by the Court of Appeals and in this Court's decision to deny leave to appeal, notwithstanding the Court of Appeals' erroneous reliance on a statutory ground that the trial court did not apply.