Opinion
No. 339495
02-13-2018
In re E. A. ZACCHI, Minor.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 16-522900-NA Before: TALBOT, C.J., and METER and TUKEL, JJ. PER CURIAM.
Respondent father appeals as of right the trial court's order terminating his parental rights to the minor child, EAZ, under MCL 712A.19b(3)(a)(ii) (desertion), (c)(i) (conditions that lead to adjudication continue to exist), (c)(ii) (existence of other conditions that cause child to come within the court's jurisdiction), (g) (failure to provide proper care or custody), (h) (parent's incarceration will deprive child of normal home for more than two years), (j) (reasonable likelihood of harm), and (k)(i) (abuse by abandonment). We affirm.
At the termination hearing, the trial court's findings under MCL 712A.19b(3)(a)(ii) and (k)(i) only pertained to Jean Byrd, EAZ's biological mother, who has not appealed termination of her parental rights. However, "a court speaks through its written orders and judgments, not through its oral pronouncements," In re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009), and the order terminating respondent's parental rights does not limit its conclusions concerning these statutory grounds to Byrd. Accordingly, we must presume that the trial court intended to terminate respondent's parental rights under each statutory ground identified in its written order.
I. BACKGROUND
On July 8, 2016, petitioner Department of Health and Human Services (DHHS) filed a temporary custody petition alleging, in pertinent part, that EAZ's mother, Jean Byrd, was addicted to heroin, refused to participate in substance abuse treatment, and had no legal source of income or housing. The petitioner further alleged that respondent was incarcerated and would remain so until at least 2018. The trial court authorized the petition following a preliminary hearing and EAZ was placed in the care of her maternal aunt. Petitioner initially entered treatment plans and service agreements with respondent and Byrd, but later filed a supplemental petition seeking termination of their parental rights in April 2017.
Because Byrd does not challenge the court's termination order, we will limit our recitation of the facts to those pertinent to respondent father.
A permanent custody hearing took place on July 20, 2017, at which point EAZ was seven years old. Foster care worker Laura Stamper testified that respondent was incarcerated shortly after EAZ's birth and had not maintained a relationship with EAZ for the last seven years, nor had he provided any type of support for EAZ during that period. Stamper explained that she attempted to contact respondent's correctional facility to determine if reunification services could be provided and sent several letters to respondent asking whether he was participating in any of the services required by his treatment plan. Stamper received one written response from respondent indicating that he was on a waiting list for a violence prevention program. Due to his incarceration, respondent was unable to comply with the balance of his treatment plan, which included individual therapy, parenting classes, and maintaining suitable housing and income. Stamper opined that termination of respondent's parental rights was in EAZ's best interests because respondent had been incarcerated for most of EAZ's life, EAZ had been in foster care for over a year, and respondent's earliest possible release date was still approximately a year and a half away. On cross-examination, Stamper acknowledged that she was unaware that respondent had completed a semester of a college program in computer network science, a "Money Smart Program," and "Workforce Development Modules."
At the conclusion of the permanent custody hearing, the trial court found that several statutory grounds for termination of respondent's parental rights existed. It also concluded that, despite EAZ's placement with relatives, termination of respondent's parental rights would be in EAZ's best interests so she could attain a sense of permanency through adoption. This appeal followed.
II. ANALYSIS
If a trial court finds that a statutory ground for termination has been established by clear and convincing evidence and that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of the child, the court is obligated to terminate the respondent's parental rights to that child. "This Court reviews for clear error the trial court's ruling that a statutory ground for termination has been established and its ruling that termination is in the children's best interests." Clear error occurs if "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made."
MCL 712A.19b(3) and (5); In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013).
In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). See also MCR 3.977(K).
In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010) (quotation marks and citation omitted).
Respondent's parental rights were terminated under the following subsections of MCL 712A.19b:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
(a) The child has been deserted under either of the following circumstances:
* * *
(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.
* * *
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
* * *
(g) The parent, without regard to intent, fails to provide proper care or custody for the child 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.
* * *
(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) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.
(k) The parent abused the child or a sibling of the child and the abuse included 1 or more of the following:
(i) Abandonment of a young child.
In its written order, the trial court failed to identify whether each of the stated grounds for termination were applicable to respondent only, Byrd only, or both. To the extent that the trial court terminated respondent's parental rights under MCL 712A.19(b)(3)(a)(ii) (desertion), (c)(ii) (existence of other conditions that cause child to come within the court's jurisdiction), or (k)(i) (abuse by abandonment), it clearly erred because all record evidence concerning these factors applied to Byrd, rather than petitioner. Nevertheless, as long as at least one statutory ground for termination was properly established, the trial court's error in this regard was harmless.
In re Powers Minors, 244 Mich App 111, 118; 624 NW2d 472 (2000).
From the trial court's limited articulation of its findings regarding the remaining statutory grounds, it appears that the court's basis for terminating respondent's parental rights under MCL 712A.19b(3)(c)(i) (conditions that lead to adjudication continue to exist), (g) (failure to provide proper care or custody), and (h) (parent's incarceration will deprive child of normal home for more than two years) stemmed largely from respondent's long-term incarceration. In urging this Court to reverse the trial court's order, respondent relies on In re Mason, wherein the Supreme Court held that "[t]he mere present inability to personally care for one's children as a result of incarceration does not constitute grounds for termination." Despite the similarity of the circumstances at issue in Mason, we find it distinguishable for several reasons.
In re Mason, 486 Mich at 160.
In that case, the respondent father was jailed shortly after the youngest of his two sons was born. The boys visited with the father regularly, until they were removed from their mother's care. The father was notified of the removal and participated in an early pretrial hearing by phone. However, after this initial hearing, the father's request to participate in subsequent hearings was overlooked until a permanency planning hearing that was held over 16 months later. At the permanency planning hearing, evidence suggested that the father had completed educational classes and was on a waiting list for enrollment in parenting classes and counseling. Nonetheless, the trial court authorized a termination petition based on the father's extended incarceration. At the February 3, 2009 termination hearing, the father opposed termination on the basis of his imminent release from prison, which was expected to occur in July 2009. The children were living with the father's relatives at the time and he had arranged employment and housing in anticipation of his release. However, a foster care worker testified that the father had not provided verification that he completed the programs required by his service plan and opined that it would take the father at least six months after release from prison to comply with the plan. The court ordered termination of the father's parental rights under MCL 712A.19b(3)(c)(i), (g), (h), and (j), and the Court of Appeals affirmed.
Id. at 146-147.
Id. at 147.
Id.
Id. at 148.
Id. at 148-149.
Id. at 149.
Id. at 150.
Id.
Id.
Id. at 151.
The Supreme Court reversed, reasoning that the trial court and the petitioner failed to facilitate the father's participation in several of the proceedings by phone, as required by MCR 2.004; the petitioner failed to involve the father in the reunification process; and the court had wrongfully terminated the father's parental rights "merely because he was incarcerated during the action without considering the children's placement with relatives or properly evaluating whether placement with [the father] could be appropriate for the children in the future." With respect to MCL 712A.19b(3)(h), the Supreme Court said:
Id. at 146.
The mere present inability to personally care for one's children as a result of incarceration does not constitute grounds for termination.
MCL 712A.19b(3)(h) authorizes termination only if each of three conditions is met:
The parent is imprisoned for such a period that [1] the child will be deprived of a normal home for a period exceeding 2 years, and [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. [Emphasis added.]
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 160-161 (alterations in original) (footnote omitted).
The Mason Court went on to explain that the father "anticipated," and was in fact, paroled in less than two years from the date the petitioner sought termination. Additionally, throughout the early stages of the proceedings, the petitioner and the trial court had not evaluated the father's parenting skills or facilitated his access to reunification services. Thus, the trial court's conclusion concerning the father's probable future care and custody was "improperly rooted in 'circumstances and missing information directly attributable to [the father]'s lack of meaningful prior participation.' " Lastly, the trial court had also failed to consider whether the father had fulfilled his duty to provide proper care and custody while incarcerated by way of placement with relatives. Moreover, because the grounds for termination under MCL 712A.19b(3)(c)(i) and (g) were also premised on the father's failure to provide proper care and custody while incarcerated, the additional grounds were "factually repetitive and wholly encompassed by MCL 712A.19b(3)(h)," such that the trial court's termination of the father's rights was also premature under those subsections.
Id. at 162.
Id.
Id., quoting In re Rood, 483 Mich 73, 119; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.).
In re Mason, 486 Mich at 163-164.
Id. at 164-165.
As was the case in Mason, the trial court's basis for terminating respondent's parental rights under MCL 712A.19b(3)(c)(i), (g), and (h) all pertain to respondent's failure to provide proper care and custody for EAZ while incarcerated. Thus, we must consider whether the trial court clearly erred by finding clear and convincing evidence of the three conditions set forth in MCL 712A.19b(3)(h).
The first requirement of MCL 712A.19b(3)(h) is that "[t]he parent is imprisoned for such a period of time that . . . the child will be deprived of a normal home for a period exceeding 2 years . . . ." By the time the termination hearing was held, EAZ had been in foster care for over a year. The supplemental petition seeking termination of respondent's parental rights was filed and authorized in April 2017, and the record reflects that respondent's earliest possible release date is November 6, 2018—less than two years after petitioner sought termination of respondent's rights. However, the record also reflects that respondent's latest possible release date is November 6, 2031—well beyond the two-year period described in the statute. Unlike the father in Mason, respondent did not present any evidence suggesting that he is likely to be released from prison in 2018.
Id. at 160, quoting MCL 712A.19b(3)(h).
The father in Mason had reason to believe that the status of his impending parole would be determined within a month of the termination hearing, In re Mason, 486 Mich at 150, and he was in fact paroled less than seven months after the February 2009 termination hearing, id. at 151 n 2.
The second requirement of MCL 712A.19b(3)(h) is that "the parent has not provided for the child's proper care and custody . . . ." Admittedly, the Mason Court explained that a parent could potentially satisfy his or her duty to provide proper care and custody by placement with a relative, and EAZ was in a relative's care throughout the proceedings. However, while the children in Mason were being cared for by the father's family, which enabled him to "preserve his rights and remain in contact with his sons," EAZ was in the care of her maternal aunt and there is no indication that respondent consented to this arrangement or that it enabled him to develop or maintain a relationship with EAZ. To the contrary, Stamper testified that EAZ had bonded with her aunt and uncle, but had "no relationship" with respondent given his incarceration during the vast majority of her life. Stamper also noted that respondent had not provided any type of support for EAZ during his years of imprisonment.
Id. at 160, quoting MCL 712A.19b(3)(h).
In re Mason, 486 Mich at 161 n 11, 163-164.
Id. at 164.
The last requirement of MCL 712A.19b(3)(h) is that "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." Like the father in Mason, it seems that respondent was unable to comply with the terms of his service agreement as a result of his incarceration. But unlike in Mason, respondent participated in each stage of the proceedings and therefore had the opportunity to make a record concerning his efforts and request assistance in obtaining the court-ordered services, yet failed to do so. Though not uncooperative, it does not appear that respondent put significant effort into compliance. Additionally, while the father in Mason had over two years of experience parenting his older child prior to imprisonment, there is no indication in the record that respondent had any appreciable parenting skills to rely on, having been incarcerated approximately one month after EAZ's birth. Finally, and perhaps most telling, there is no reason to believe that respondent had arranged suitable housing and employment in anticipation of his release from prison, as the father in Mason had done.
Id. at 160-161, quoting MCL 712A.19b(3)(h).
Although the record is scant with respect to these considerations, we find In re Mason sufficiently distinguishable from the circumstances at issue in this case and thus reject respondent's argument that we are compelled by that decision to reverse the trial court's termination order. On this record, we are not left with the definite and firm conviction that that the trial court was mistaken when it terminated respondent's parental rights under MCL 712A.19b(3)(h). Likewise, because the additional grounds for termination under MCL 712A.19b(3)(c)(i) and (g) are "wholly encompassed" by MCL 712A.19b(3)(h) under the circumstances of this case, we do not believe that the trial court clearly erred with respect to those subsections. "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." As such, having concluded that the trial court did not clearly err by finding that termination was warranted under MCL 712A.19b(3)(c)(i), (g), and (h), we need not consider whether additional grounds for termination existed under MCL 712A.19b(3)(j).
We encourage the trial court to ensure that the record is more fully developed in the future.
In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).
Respondent also argues that the trial court clearly erred by finding that termination of his parental rights was in EAZ's best interests. We disagree. "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." "[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." This Court reviews a trial court's finding that termination is in the child's best interests for clear error.
In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5) and MCR 3.977(E)(4).
In re Moss, 301 Mich App at 90.
In re JK, 468 Mich 202, 209; 661 NW2d 216 (2003).
The trial court properly found that termination of respondent's parental rights was in EAZ's best interests. Although it is possible that respondent may be released from prison as early as November 2018, it is equally possible that he will remain incarcerated throughout all of EAZ's minority. EAZ did not have any contact or relationship with respondent. On the other hand, Stamper reported that EAZ had bonded with her maternal aunt and uncle, who were open to adopting EAZ, and was doing well in their care. Her relative placement was expressly considered by the court as is required by relevant caselaw. Although placement with relatives generally weighs against termination, we agree that permanency for EAZ was an important priority, particularly when the competing interest was in a biological bond that went undeveloped after the child's early infancy.
See In re Olive/Metts Minors, 297 Mich App at 44.
In re Mason, 486 Mich at 164. --------
Affirmed.
/s/ Michael J. Talbot
/s/ Patrick M. Meter
/s/ Jonathan Tukel