Opinion
No. 350089
03-17-2020
In re W. V. M. PROPP., Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Saginaw Circuit Court Family Division
LC No. 18-035553-NA Before: O'BRIEN, P.J., and JANSEN and GLEICHER, JJ. PER CURIAM.
The circuit court terminated respondent-father's parental rights to his daughter, WP, at the initial disposition as respondent had been convicted of murdering the child's mother and a therapist testified that continuing the father-child relationship would be emotionally damaging for the child. Respondent challenges the necessity of taking jurisdiction over the child and terminating his parental rights as the child had been placed in a guardianship with a relative and contends that termination of his parental rights was not in the child's best interests. We affirm.
I. BACKGROUND
WP was born on January 24, 2014, to respondent-father and MT. Although respondent and MT were not married, the couple lived together and coparented WP. In March 2016, the couple ended their relationship and MT moved with her child into the home of her older sister, AT. Respondent continued to see his child and even MT. Respondent asserted that he and MT were attempting to reconcile; AT testified that MT only continued relations with respondent because she was afraid of losing custody of WP to him. AT described that respondent abused cocaine, was controlling, and stalked MT after the relationship ended.
On the evening of July 5, 2016, while WP slept at her maternal grandparents' home, MT and AT visited a couple of local bars. Respondent appeared at the last bar and came home with the sisters. AT went to bed while respondent and MT made a snack in the kitchen. AT awoke in the middle of the night and heard respondent and MT having sexual relations. AT later heard a loud thud. She came out of her bedroom and saw respondent leaving MT's room. AT yelled at respondent for waking her up. In the morning, AT awoke and left for work without going into MT's room. She noticed that respondent's vehicle was gone. Later in the day, AT received a telephone call advising her to return home to address a police situation.
Respondent testified that on the night in question, he and MT engaged in sexual relations. He asserted that MT asked him to choke her for erotic asphyxiation. Respondent testified that he did not know MT had suffocated; he thought she only passed out and he left the home in search of cocaine. Respondent returned several hours later because, he claimed, MT was not answering her telephone. Respondent kicked the exterior door open to gain access and maintained he found the house ransacked and MT dead. Respondent then called 911.
Respondent was arrested on suspicion of murder. WP remained in AT's care and a month later AT successfully petitioned to become WP's guardian. Thereafter, AT secured a personal protection order against respondent, in the event he was released on bond pending trial. Ultimately, a jury convicted respondent of first-degree premeditated murder and he was sentenced as a fourth habitual offender to life without the possibility of parole. This Court affirmed respondent's conviction. People v Propp, ___ Mich App ___; ___ NW2d ___ (Docket No. 343255, 2019). His application for leave to appeal to the Supreme Court is still pending.
Shortly after respondent's conviction, AT filed a petition seeking termination of respondent's parental rights so she could adopt WP. The matter was adjourned several times and was finally brought to a combined adjudication trial/termination hearing a year later. Only three witnesses testified: AT, WP's therapist (Belen Kintner), and respondent. AT and Kintner testified that WP had been traumatized by the sudden disappearance of both her parents. As a result, she attended weekly counseling for an extended period. WP remembered domestic violence in her home between her parents and gave specific examples. She expressed fear of her father to AT and in therapy sessions. WP exhibited difficulty with transitions and bathroom control issues as a result of the trauma.
AT testified that WP had not seen her paternal relatives since MT's murder because they had not reached out to request a visit. Respondent's relatives believed he was innocent and AT was afraid these individuals would give the child mixed signals that could further her trauma. Indeed, WP's 10-year-old daughter from a previous relationship had told AT's niece and nephew that MT died because she had used drugs. However, AT testified that if everyone acted appropriately, she would not be averse to supervised visits for WP with her paternal relatives in the future.
At the close of the proceeding, the court took jurisdiction over WP under MCL 712A.2(b) because "the home environment by reason of neglect, criminality, or depravity . . . is an unfit place for the child to live" and because respondent "has subjected the child to a substantial risk of harm to her mental well-being." The circuit court then found termination of respondent's parental rights supported under MCL 712A.19b(3)(h)("The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, 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.), (j)(reasonable likelihood of harm to the child if returned to the parent's care), and (m)(i)(the parent was convicted of first-degree murder and "continuing the parent-child relationship with the parent would be harmful to the child.").
The court also found termination of respondent's parental rights to be in WP's best interests. The court noted that WP had been living with her aunt for two-and-a-half years and shared a strong bond with her. The child had not seen her father in nearly three years, since her mother's murder. The court continued that in therapy, WP had recounted her early memories of domestic violence in her home and had expressed fear of her father. The child therefore had no bond with respondent, the court found. Remaining in the loving home of her aunt and permitting the child to find permanence through adoption would allow WP "to truly feel safe and secure." Accordingly, the court terminated respondent's parental rights.
II. JURISDICTION
Respondent first challenges the court's assumption of jurisdiction over WP on due process grounds. To assume jurisdiction over a child, the court must find that the petitioner established a ground listed in MCL 712A.2(b) by a preponderance of the evidence. In re Sanders, 495 Mich 394, 405; 852 NW2d 524 (2014). The circuit court relied on the following provisions of MCL 712A.2(b) to support its assumption of jurisdiction:
In his statement of questions presented, respondent also contends that termination of parental rights violated his right to due process. However, he makes no challenge to the grounds for termination in his appellate argument. That claim is therefore abandoned. See McIntosh v McIntosh, 282 Mich App 471, 484; 768 NW2d 325 (2009) (holding that a party abandons an issue by "fail[ing] to sufficiently brief [it] for appellate consideration).
The court has the following authority and jurisdiction:
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(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county:
(1) . . . who is subject to a substantial risk of harm to his or her mental well-being[.]
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(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in. . . .
In challenging jurisdiction, respondent focuses on WP's homelife with AT, asserting that the established guardianship precluded a finding that her home was unfit. Respondent's focus is misguided. Before his arrest, respondent was a major part of WP's homelife. And the evidence sufficed to establish that respondent rendered that home an unfit place for WP to live. Respondent killed WP's mother, and tried to make it look like a murder during a break-in. There was evidence that respondent abused cocaine, controlled MT, physically abused MT in front of the child, and stalked MT after their breakup. In the trial court, respondent emphasized that his criminal appeal was pending before this Court, and he now highlights that his application for leave to appeal remains pending in the Supreme Court. However, " 'criminality' does not mean 'conviction,' " In re Unger, 264 Mich App 270, 279; 690 NW2d 495 (2004), nor does it require a conviction affirmed by the state's highest court.
Even were we to accept respondent's argument regarding MCL 712A.2(b)(2), subsection (b)(1) permitted the court to take jurisdiction. The events surrounding her father's absence and her mother's murder had impacted WP's well-being and the child was at further risk of harm from her father's behavior. Kintner testified that WP exhibited signs of trauma. The child was prone to temper tantrums and breakdowns, had low self-esteem and bowel control problems, and expressed fear of her father. WP missed her mother and understood that her father had hurt her mother.
Respondent cites In re Curry, 113 Mich App 821; 318 NW2d 567 (1982), for the proposition that a parent's criminality standing alone is insufficient to find that a child was at "substantial risk of harm to his or her mental well-being." Curry is inapposite. In Curry, the parents' offenses were not committed against the children nor in their presence. The only impact on the children was from their parents' absence due to incarceration, but the parents had arranged for the children to be cared for by relatives during their absence. This case is more akin to In re Ramsey, 229 Mich App 310, 315; 581 NW2d 29 (1998), in which the respondent-father had been imprisoned for attempting to kill the subject child "purportedly because he loved her." This Court held that "there most certainly will be some negative effect on the child's mental well-being" from her father's conduct. Id. The same is true here; evidence established that leaving his child motherless by murdering MT had negatively impacted WP's mental well-being. Accordingly, the court's assumption of jurisdiction over the child was supported.
III. BEST INTERESTS
Respondent further contends that termination of his parental rights was not in WP's best interests. "Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5). "[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The court should weigh all the evidence available to it in determining the child's best interests. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). We review the court's factual findings in this regard for clear error. In re Brown/Kindle/Muhammad Minors, 305 Mich App 623, 637; 853 NW2d 459 (2014).
"Generally, a child's placement with relatives weighs against termination." In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015) (quotation marks and citation omitted). But relative placement is only one factor among many to consider and the combination of other facts may outweigh that placement. A court must also consider "the child's bond to the parent, the parent's parenting ability, [and] the child's need for permanency, stability, and finality," as well as the advantages of the foster home over the child's home with the parent. Olive/Metts, 297 Mich App at 41-42 (quotation marks and citations omitted). "The trial court may also consider a parent's history of domestic violence, . . . 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, 714; 846 NW2d 61 (2014).
Respondent asserts that termination would not be in the child's best interests because he loves his child and is bonded to her and would never harm her. However, respondent left WP parentless when he murdered MT, leading to his imprisonment for life without the possibility of parole. This harmed the child. Respondent wrote WP only 10 letters during his absence, but did not take measures to ensure that they were actually delivered; none were sent to the child. Instead, AT received only two indirect communications for WP from her father; respondent sent one letter to the child's maternal grandparents and respondent's older daughter colored a picture that she sent to the maternal grandparents. Moreover, the evidence supported that WP felt no bond with her father. Early in therapy, WP expressed fear of her father. And WP rarely mentioned her father, demonstrating a lack of connection on her part.
On the other hand, strong evidence supported that respondent's act of murdering MT had left WP traumatized. WP felt safe with her aunt and viewed AT as her mother figure. Making that arrangement permanent through adoption would increase the child's sense of security and would grant her necessary permanence and stability. Although respondent contends that AT would use the adoption to cut WP off from her paternal relatives, this is not supported by the record. Rather AT testified that as long as respondent's relatives did not cause the child emotional harm, she would consider supervised contacts. On this record, the circuit court did not clearly err in finding that termination of respondent's parental rights was in the child's best interests.
We affirm.
/s/ Colleen A. O'Brien
/s/ Kathleen Jansen
/s/ Elizabeth L. Gleicher