In Re Roy Minors ( 2023 )


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  •             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
    revision until final publication in the Michigan Appeals Reports.
    STATE OF MICHIGAN
    COURT OF APPEALS
    UNPUBLISHED
    In re ROY, Minors.                                                   May 25, 2023
    No. 364160
    Wayne Circuit Court
    Family Division
    LC No. 2022-000382-NA
    Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.
    PER CURIAM.
    Respondent appeals as of right the trial court’s order terminating his parental rights to the
    minor children, JR and MR, under MCL 712A.19b(3)(h). For the reasons set forth in this opinion,
    we vacate the trial court’s termination of respondent’s parent rights.
    I. BACKGROUND
    JR and MR were both born in Michigan. Respondent and mother lived together with the
    children, but eventually then moved in mother, then respondent.
    Respondent was arrested while living in Florida, where he had been living with JR. He has
    been incarcerated since September 2019 and is serving a prison sentence in the federal system.
    After his incarceration, JR moved back to live with his mother and MR in Michigan. Respondent’s
    release date from prison is March 11, 2029, but he testified that he had earned time by completing
    certain programs while in prison to bring his release date to January 2025, which required that he
    stay out of trouble and not gain any infractions while in prison.
    Mother died on January 14, 2022. Respondent later called his sister, and asked if she would
    take both JR and MR into her care, and his sister agreed. Estelita Horton, an employee with
    petitioner, the Department of Health and Human Services (DHHS), in its Children’s Protective
    Services (CPS) division, spoke with respondent on March 3, 2022. Respondent indicated to
    Horton that his sister could take care of the children.
    -1-
    On October 4, 2022, the referee held a combined adjudication, statutory-ground, and best-
    interest hearing.1 Horton acknowledged that respondent continued to have contact with the
    children after being incarcerated. They would talk “all the time” on the phone and the children
    had also visited respondent in prison. In response to being asked if termination of respondent’s
    parental rights was in the children’s best interests, Horton replied, “Yes.” She did not explain her
    answer at the time, but presumably relied on her views that the children needed permanency, that
    respondent could not provide proper care and custody while in prison, and that the children’s
    caregiver, respondent’s sister, did not have legal authority to provide proper care and custody
    either. Horton admitted that she never asked the children about their preferences regarding
    whether respondent’s rights should be terminated. Horton agreed that respondent was
    “instrumental” in making sure the children were cared for.
    Emily James, the foster-care worker assigned to the case, testified that both children have
    a strong bond with respondent, as evidenced by their frequent communications. James also did
    not ask the children if they desired that respondent’s rights be terminated. James did not think that
    ceasing all contact between the children and respondent was in the children’s best interests.
    Respondent testified that although he had provided financial support for the children before
    his incarceration,2 since then, he has not been able to do so. Respondent also stated that since his
    incarceration, he “absolutely” has maintained contact with the children, with one to three calls
    taking place each week. Respondent noted that no one from DHHS ever spoke to him about
    signing a power of attorney. Indeed, after he was declared the legal father, no options were
    discussed except for termination of his parental rights.
    During closing argument, although the petition cited multiple grounds for termination,
    petitioner’s attorney only relied on MCL 712A.19b(3)(h). Respondent’s attorney, while citing In
    re Mason, 
    486 Mich 142
    ; 
    782 NW2d 747
     (2010), and In re Baham, 
    331 Mich App 737
    ; 
    954 NW2d 529
     (2020), argued that the evidence failed to meet the requirements of MCL 712A.19b(3)(h). In
    particular, he argued that respondent provided care for his children by placing them with his sister.
    Respondent’s attorney also argued that with the strong bond between the children and respondent,
    termination was not in the children’s best interests.
    The court ruled that it had jurisdiction under MCL 712A.2(b). The trial court also
    dismissed any reliance on either Mason or Baham, finding instead that § 19b(3)(h) had been
    proven by clear and convincing evidence. The trial court also found that termination of
    respondent’s parental rights was in the children’s best interests, and terminated respondent’s
    parental rights.
    1
    Although petitioner and respondent jointly requested that the best-interest portion be bifurcated
    from the rest of the proceedings, the referee declined to do so.
    2
    Indeed, according to respondent, he was the sole source of financial support for the children
    because their mother did not work and did not receive any other types of benefits.
    -2-
    Eight days prior to oral argument in this matter, DHHS submitted a motion for peremptory
    reversal in this matter alleging, in part, that the error by the trial court was so manifest that this
    Court need not consider oral argument or issue an opinion in the matter. This Court denied relief
    for the reasons set forth in the order.3
    II. ANALYSIS
    All parties to the matter have requested this Court grant respondent relief because the trial
    court clearly erred by finding that clear and convincing evidence supported termination of his
    parental rights under MCL 712A.19b(3)(h).4 We agree, and accordingly we reverse and remand
    for further proceedings.
    This Court reviews a trial court’s finding whether a statutory ground for termination has
    been proven by clear and convincing evidence for clear error. In re Moss, 
    301 Mich App 76
    , 80;
    
    836 NW2d 182
     (2013). A finding is clearly erroneous when a reviewing court is left with a definite
    and firm conviction that a mistake was made. In re Ellis, 
    294 Mich App 30
    , 33; 
    817 NW2d 111
    (2011).
    A trial court must terminate a parent’s parental rights if it finds that a statutory ground
    under MCL 712A.19b(3) has been established by clear and convincing evidence and that
    termination is in the child’s best interests. In re White, 
    303 Mich App 701
    , 713; 
    846 NW2d 61
    (2014). The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(h), which
    allows termination of parental rights under the following circumstances:
    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.
    Our Supreme Court in In re Mason held that termination under this ground is allowed only
    if three conditions are met: (1) “the child will be deprived of a normal home for a period exceeding
    2 years,” (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.” In re Mason, 
    486 Mich at 160-1615
    ; see also In re
    Baham, 331 Mich App at 753-754.
    3
    In re Roy, Minors, unpublished order of the Court of Appeals, entered April 27, 2023 (Docket
    No. 364160).
    4
    The lawyer-guardian ad litem (LGAL) for the children also argues that this statutory ground was
    not established.
    5
    The record reveals that the referee was not familiar with our Supreme Court’s holding in Mason
    or this Court’s holding in Baham which may have led the court to have either completely ignored
    or misinterpreted respondent’s counsel’s argument regarding the applicability of In re Mason.
    -3-
    Even conceding the first requirement, there was insufficient evidence on which the trial
    court could find that the second and third requirements of § 19b(3)(h) were met. As our Supreme
    Court has held, parents who are incarcerated nonetheless can provide proper care and custody
    because such care need not be personally made by the parent. In re Mason, 
    486 Mich at 161
    . The
    Court went on to note that “Michigan traditionally permits a parent to achieve proper care and
    custody through placement with a relative.” 
    Id.
     at 161 n 11. In this case, the record clearly shows
    that after the mother’s death, respondent contacted his sister about taking care of the children and
    worked with DHHS to ensure that placement was made. Further, Horton admitted at trial that
    respondent was “instrumental” in making sure the children were cared for. These facts are
    strikingly similar to the facts in In re Baham. In In re Baham, this Court reversed an order
    terminating the respondent’s parental rights because the respondent, who was incarcerated,
    “worked together” with DHHS “to place [the child] with [the] respondent’s brother.” In re Baham,
    331 Mich App at 754. It did not matter that the child was placed with DHHS before the respondent
    could voluntarily place the child with her brother. Id. Here, respondent actually contacted his
    sister prior to being contacted by DHHS and continued to work with DHHS to place the children
    with his sister.
    Further, the record reveals that the trial court made additional erroneous rulings in this
    matter. For example, the trial court found: “Father stated that he has provided no financial support
    for these children other than when he received welfare in Florida to provide for one of the
    children.” This finding is not accurate. The trial court further found: “He [respondent]could not
    even enroll the child into school because he was not the legal father.” Again, this finding is not
    accurate. Rather, the record reveals that respondent worked for or possibly owned a cleaning
    service for six years in Florida and was the only one financially supporting the children before his
    incarceration because, while he worked, the mother did not work and did not collect any benefits.
    Respondent also said that he did enroll JR in school in Florida when the mother and MR were
    Respondent’s counsel had argued that In re Mason, as well as In re Baham, establishes that three
    criteria must be satisfied to terminate under § 19b(3)(h), but the trial court, when addressing the
    argument, stated in its opinion:
    Father and his counsel claim that the court has no jurisdiction because father
    is incarcerated and cites [In re Mason] as legal authority. However, Mason, 
    supra
    does not support that contention. Father was present at all hearings via zoom
    technology and fully participated in the trial.
    The court’s pronouncement is perplexing because respondent’s counsel never contended that the
    court lacked jurisdiction. He explicitly stated during closing argument that “I’m not, at this point,
    making and [sic] argument in regard to jurisdiction, ah you know, I leave the proofs as they are for
    the Court to make a determination as to the temporary jurisdiction.” And later when summarizing
    his argument, counsel stated, “Those are the . . . legal analysis provided by Mason and provided
    by Baham for the Court to determine whether there’s a basis under Section (h) to terminate his
    rights and the -- the petitioner has not met that goal. Has not met that burden of proof of clear and
    convincing evidence based on that legal fram -- frame framework.”
    -4-
    living elsewhere and JR was living with him in Florida. Respondent implied that having JR’s birth
    certificate and social security card was all that was needed to enroll him.
    Given that all parties have agreed that the trial court clearly erred in this matter, it is
    unnecessary for us to discuss additional errors. Suffice to conclude by stating that here, we are
    left with a definite and firm conviction that the trial court clearly erred when it found that
    § 19b(3)(h) was proven by clear and convincing evidence. Therefore, we vacate the order
    terminating respondent’s parental rights
    Reversed.
    /s/ Anica Letica
    /s/ Stephen L. Borrello
    /s/ Michael J. Riordan
    -5-
    

Document Info

Docket Number: 364160

Filed Date: 5/25/2023

Precedential Status: Non-Precedential

Modified Date: 6/2/2023