Opinion
No. 350137
02-25-2020
In re JONES/SANDERS, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 18-001660-NA Before: SHAPIRO, P.J., and JANSEN and M. J. KELLY, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating respondent's parental rights to her minor children, SLJ, AWS, DLS, HDS, and HFS, under MCL 712A.19b(3)(a)(ii) (desertion of 91 days or more), (c)(i) (conditions leading to initial disposition order still exist after 182 days and no reasonable likelihood they will be rectified within a reasonable time), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood of harm if children are returned to parent). We affirm.
I. STATUTORY GROUNDS FOR TERMINATION
Respondent first argues that the trial court erroneously found clear and convincing evidence existed to terminate her parental rights under MCL 712A.19b(3)(a)(ii), (c)(i), (g), and (j). We disagree.
This Court reviews a trial court's finding that grounds for termination have been established under the clearly erroneous standard. MCR 3.977(K); In re Rood, 483 Mich 73, 90-91; 763 NW2d 587 (2009). A finding is clearly erroneous when, although there is evidence to support it, this Court is left with the definite and firm conviction that a mistake has been made. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). A trial court's decision must be more than maybe or probably wrong in order for this Court to determine that it is clearly erroneous. In re Sours Minors, 459 Mich 624, 633; 593 NW2d 520 (1999). This Court gives deference to the special opportunity of the trial court to judge the credibility of the witnesses who appear and testify before it. MCR 2.613(C); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
"To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). "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." In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
The trial court first found that termination of respondent's parental rights was warranted under MCL 712A.19b(3)(a)(ii). Termination is appropriate under MCL 712A.19b(3)(a)(ii) where clear and convincing evidence establishes:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, [one] or more of the following:
(a) The child has been deserted under either of the following circumstances:
A respondent's failure to support or contact his or her children is sufficient for a trial court to find statutory grounds exist for termination of parental rights under this statute. In re Laster, 303 Mich App 485, 492; 845 NW2d 540 (2013). Additionally, a parent's limited contact with a child is not sufficient to rebut a finding of abandonment. Id.
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(ii) The child's parent has deserted the child for 91 or more days and has not sought custody of the child during that period.
In July 2018, while on her way to work, respondent left her five minor children with a friend. She never returned. Eventually, respondent's aunt collected the children, and from then on became their primary caregiver. Petitioner, the Michigan Department of Health and Human Services (the DHHS) filed a petition for temporary custody of the minor children in October 2018. Respondent never appeared for any court proceeding, and did not engage in any meaningful way with petitioner regarding the care and custody of her children.
Petitioner filed a petition for permanent custody in May 2019. At the time of the termination hearing, the children had been in a relative's care for nearly a year, and under the auspices of the DHHS, for nine months without any support, material or otherwise, from respondent. During that period, respondent visited her children five times. Between these visits, respondent failed to maintain contact with the children, even failing to respond to her children's telephone calls. Respondent even went from November 22, 2018, to February 27, 2019, with zero contact with her children. The facts show despite these occasional manifestations of interest, respondent did not seek to contact, support, or actively seek reunification with the children. We agree with the trial court's characterization of respondent's behavior as "classic abandonment."
Based on the foregoing, we conclude that the trial court did not err in finding that clear and convincing evidence established that respondent had deserted the minor children for 91 or more days, and had not sought custody of the children during that period, and therefore statutory grounds existed to terminate respondent's parental rights under MCL 712A.19b(3)(a)(ii).
Because the trial court properly found that statutory grounds existed to terminate respondent's parental rights under MCL 712A.19b(3)(a)(i), this Court need not address respondent's additional challenges to termination of her parental rights under MCL 712A.19b(3)(c)(i), (g), and (j). In re Ellis, 294 Mich App at 33.
II. BEST INTERESTS
Respondent also argues that it was not in the best interests of her minor children to terminate her parental rights. Respondent also argues for the first time on appeal that the trial court should have considered guardianship as a viable option before terminating her parental rights. Again, we disagree.
This Court reviews a trial court's finding that termination of a respondent's parental rights is in the best interests of the minor child for clear error. In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016).
"Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interest before it can terminate parental rights." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). See also MCL 712A.19b(3)(5). The inquiry should focus on the child, not the parent. In re Moss, 301 Mich App at 76. "[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence." Id. at 87. "The trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). Factors appropriately considered by the trial court include "the child's bond to the parent, the parent's parenting ability, [and] the child's need for permanency, stability, and finality. . . ." In re Olive/Metts, 297 Mich Ap pat 41-42 (citation omitted).
In determining whether the termination of respondent's parental rights was in the minor children's best interests, the trial court found this case to be one of classic abandonment. The trial court stated:
Your kids call you, you don't return the call, you don't make any provision for your [c]hildren. Don't make sure that they're fed, clothed, have the medical care they need, have the mental health services that they need; [respondent] has abandoned [her] children.
But for the relative, these kids would be in pretty bad shape, probably would be spread out throughout foster care. Thankfully this relative has come forward, the kids are all together, they're doing very well despite this difficult time and the abandonment of [respondent].
It sounds like there's more issues than the abandonment. There's significant issues, may even be a substance abuse issue with mom, some domestic violence issues going on.
In any case, these kids cannot and should not be made to wait longer for permanence and stability. [Respondent has] demonstrated that [she has] no intent of completing any of [her] court-ordered services, that [she has] no intent of
reunifying with [her c]hildren. [She has] demonstrated a total disregard for all these children['s] safety and well-being.
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At this point it's pretty clear that reunification efforts are futile, these children deserve to be in a safe, stable, home. And that the kids, they call Ms. Jones Mom because she takes on the role of Mom. And nobody asked them to call her Mom, but that's what Ms. Jones has become to them, and rightfully so.
I do find it would be in the [c]hildren's best interest, despite the relative placement, to have a plan of adoption.
[Respondent] played no significant or important role in the [c]hildren's well-being. In fact, I think it's harmful to them to have any kind of ongoing relationship with [respondent].
Their best interest would be served via phone [sic], complete severance of any relationship with [respondent] and the planned parent of adoption that would afford them the best prospect for a safe, stable, nurturing, childhood.
We conclude that the evidence in this case supports the trial court's findings. As discussed, respondent failed to complete or benefit from a service plan, had not obtained adequate housing or income to properly care for the children, and had not provided material or financial support to the children after she abandoned them in July 2018. In addition to the testimony that respondent had only visited, at most, five times in the year since she abandoned her children and did not maintain contact in between these visits, Jones also informed the trial court that the children regressed in the weeks after respondent's visits and that the children would become fearful and wary of separation. Jones was willing to adopt all five children and the DHHS supported this course of action because Jones was providing a loving, caring, and stable home for the children. Moreover, despite attempts made by the DHHS and the trial court, respondent failed to attend any court proceedings in this matter, including the hearing terminating her parental rights. The trial court did not clearly err by finding that termination of respondent's parental rights would be in the children's best interests where respondent had played no "significant or important role in the [c]hildren's well-being," and that further contact between respondent and the children would be harmful.
Respondent argues that the trial court failed to properly weigh the fact that the children were placed with a relative when it made its best-interests determination. However, respondent's argument lacks merit. Under MCL 712A.19a(8)(a), the placement of a child with relatives weighs against termination of a parent's parental rights. And, Jones—respondent's aunt and the children's great aunt—would qualify as a relative for the purposes of this provision, as defined by MCL 712A.13a(1)(j). However, a child's placement with a relative is only one factor to consider; it is not dispositive. In re Olive/Metts, 297 Mich App at 43. Here, the trial court expressly acknowledged that the children had been placed with Jones—a relative. The trial court went on to state that, despite this placement, termination of respondent's parental rights was in the children's best interests because a continued relationship with respondent would be harmful to the children. The record before us reflects that the trial court did acknowledge the children's placement with a relative, and wholly consider this placement. However, the trial court correctly determined that termination was still in the children's best interest, allowing Jones to move forward with adopting the children.
Respondent also argues for the first time on appeal that the trial court clearly erred by not considering a guardianship for the minor children as an alternative to termination. However, we consider this argument to be forfeited, and decline to address it. See Dep't of Environmental Quality v Morley, 314 Mich App 306, 318; 885 NW2d 892 (2015), where this Court concluded that it "need not address an issue that is raised for the first time on appeal because it is not properly preserved for appellate review. Because [respondent] failed to raise this issue below, we consider it forfeited."
Affirmed.
/s/ Douglas B. Shapiro
/s/ Kathleen Jansen
/s/ Michael J. Kelly