in Re Balli Minors ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re BALLI, Minors. June 15, 2017
No. 336103
St. Joseph Circuit Court
Family Division
LC No. 2016-000069-NA
Before: O’BRIEN, P.J., and HOEKSTRA and BOONSTRA, JJ.
PER CURIAM.
Respondent appeals as of right the circuit court’s October 14, 2016 order terminating his
parental rights to the minor children pursuant to MCL 712A.19b(3)(g) and (j). We affirm.1
“A court may terminate a respondent’s parental rights if one or more of the statutory
grounds for termination listed in MCL 712A.19b(3) have been proven by clear and convincing
evidence.” In re Olive/Metts Minors, 297 Mich. App. 35, 40; 823 NW2d 144 (2012). In this case,
the trial court found that petitioner proved MCL 712A.19b(3)(g) by clear and convincing
evidence. That statutory ground provides that a circuit court may terminate a parent’s parental
rights if it finds, by clear and convincing evidence, that “[t]he 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.” MCL 712A.19b(3)(g). The burden of proving this statutory ground is on the
petitioner, and we review a circuit court’s decision as to whether that burden was satisfied for
clear error. In re Olive/Metts Minors, 297 Mich. App. at 40. “A trial court’s decision is clearly
erroneous ‘[i]f although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been made.’ ” Id. at 41, quoting In
re Miller, 433 Mich. 331, 337; 445 NW2d 161 (1989) (alterations by the In re Olive/Metts Minors
Court).
1
At the outset, we reject respondent’s argument that the guardian ad litem’s representation of the
children in this matter constituted ineffective assistance of counsel. As he recognizes, this Court
has previously held that a parent does not have standing to raise such an argument on behalf of
the children, In re EP, 234 Mich. App. 582, 597-598; 595 NW2d 167 (1999), overruled on other
grounds by In re Trejo Minors, 462 Mich. 341, 353; 612 NW2d 407 (2000), and we are bound by
that decision, MCR 7.215(J)(1).
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In this case, respondent argues that petitioner did not prove MCL 712A.19b(3)(g) by
clear and convincing evidence. We disagree. The children were removed from respondent’s
care based on allegations that he had sexually assaulted a 13-year-old girl in the presence of at
least one of his children. Respondent was arrested, and a subsequent search of respondent’s
home resulted in the recovery of a hard drive that contained hundreds of videos and images
containing child pornography. According to a police officer, some of the videos and images
included adults engaging in sexual acts with children as young as approximately two years old.2
Defendant was charged with numerous felonies related to the sexual assault and what was found
on the hard drive, eventually pled guilty to several counts of possession child sexually abusive
material, MCL 750.145c(4), and was sentenced to multiple years in prison. According to the
children’s therapists, each child was diagnosed with adjustment disorder and anxiety as a result
of respondent’s actions and incarceration. Both therapists opined that both children suffered
emotionally and mentally as a result of respondent’s actions and incarceration, that both
children’s well-being had significantly improved since they were removed from his care, that it
was likely that the children would regress in the event that they were returned to respondent’s
care, and that both children needed permanency at this point in their lives. We agree with the
circuit court that this evidence reflects that respondent failed to provide proper care and custody
for the children and that there was no reasonable expectation that he would be able to do so
within a reasonable time considering the child’s age. Therefore, the circuit court’s conclusion
with respect to MCL 712A.19b(3)(g) was not clearly erroneous.3
“Once a statutory ground for termination has been proven, the trial court must find that
termination is in the child[ren]’s best interests before it can terminate parental rights.” In re
Olive/Metts Minors, 297 Mich. App. at 40; see also MCL 712A.19b(5). “In deciding whether
termination is in the child’s best interests, the court may consider 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.” Id. at 41-42 (citations omitted).
Additionally, “the fact that a child is living with relatives when the case proceeds to termination
is a factor to be considered in determining whether termination is in the child’s best interests.”
Id. at 43, citing In re Mason, 486 Mich. 142, 164; 782 NW2d 747 (2010). “A trial court’s failure
to explicitly address whether termination is appropriate in light of the children’s placement with
relatives renders the factual record inadequate to make a best-interest determination and requires
reversal.” Id., citing Mason, 486 Mich at 163-165; In re Mays, 490 Mich. 993, 994; 807 NW2d
307 (2012).
2
Additionally, the children’s biological mother testified that she had previously contacted law
enforcement based on concerns about respondent frequently viewing child pornography as well
as contacting minor children for inappropriate reasons on the internet. According to the mother,
she observed respondent viewing child pornography as early as 2003. It does not appear that
anything ever came of the mother’s original contact with law enforcement; however, this
information was also included in the petition in this matter.
3
In light of this conclusion, we need not address the circuit court’s conclusion with respect to
MCL 712A.19b(3)(j). See In re Laster, 303 Mich. App. 485, 495; 845 NW2d 540 (2013).
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In this case, respondent argues that reversal is required because the circuit court did not
explicitly consider the fact that the children were placed in relative placement when analyzing
the children’s best interests. We disagree. While it is true that the circuit court did not explicitly
reference the fact that the children were placed with their biological mother when determining
whether termination was in the children’s best interests, respondent’s argument fails to
acknowledge this Court’s decision in In re Schadler, 315 Mich. App. 406, 412-413; 890 NW2d
676 (2016), where this Court held that a child’s biological mother is not a “relative” for purposes
of MCL 712A.13a(1)(j).4 We are bound by that decision. MCR 7.215(J)(1).5 Furthermore,
while respondent does not challenge the circuit court’s best-interests determination on any other
grounds, we would note that the record supports the circuit court’s determination for similar
reasons as those discussed with respect to MCL 712A.19b(3)(g). Therefore, the circuit court’s
conclusion with respect to the children’s best interests was not clearly erroneous.
4
This Court explained, in full, as follows:
Nevertheless, respondent argues that the trial court entirely failed to give
any weight to [the child]’s placement with his biological mother. However, the
trial court specifically acknowledged the “week on / week off custodial
arrangement between the father and mother” in the process of determining that
termination was in [the child]’s best interests. Moreover, MCL 712A.13a(1)(j)
defines “relative,” and biological mother is not included in the definition. See
MCL 712A.13a(1)(j). Therefore, because [the child]’s mother was not a
“relative” for purposes of MCL 712A.19a, the trial court was not required to
consider that relative placement. Respondent’s argument is misplaced. [In re
Schadler, 315 Mich. App. at 412-413.]
5
We acknowledge that concluding that a child’s mother is not his or her relative is somewhat
counterintuitive. However, such a conclusion does appear consistent with the plain and ordinary
meaning of the statutory language at issue, which provides, in relevant part, as follows:
“Relative” means an individual who is at least 18 years of age and related to the
child by blood, marriage, or adoption, as grandparent, great-grandparent, great-
great-grandparent, aunt or uncle, great-aunt or great-uncle, great-great-aunt or
great-great-uncle, sibling, stepsibling, nephew or niece, first cousin or first cousin
once removed, and the spouse of any of the above, even after the marriage has
ended by death or divorce. A stepparent, ex-stepparent, or the parent who shares
custody of a half-sibling shall be considered a relative for the purpose of
placement. . . . [MCL 712A.13a(1)(j).]
As our Supreme Court has explained, “[w]hen statutory language is as clear as it is here, it is
outside our province to second-guess the Legislature . . . .” Devillers v Auto Club Ins Ass’n, 473
Mich. 562, 579; 702 NW2d 539 (2005), quoting Lewis v DAIIE, 426 Mich. 93, 107-108; 393
NW2d 167 (1986). In any event, we are bound by In re Schadler, 315 Mich. App. at 412-413.
MCR 7.215(J)(1).
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Affirmed.
/s/ Colleen A. O'Brien
/s/ Joel P. Hoekstra
/s/ Mark T. Boonstra
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