In re Tacy

1

In re TACY, Minors.

No. 366331

Court of Appeals of Michigan

January 18, 2024

UNPUBLISHED

Lapeer Circuit Court Family Division LC No. 22-012968-NA

Before: Mark J. Cavanagh, P.J., and Michelle M. Rick and Sima G. Patel, JJ.

PER CURIAM.

Respondent^[1] appeals as of right the trial court's order terminating his parental rights to the minor children, ANT and MMT, under MCL 712A.19b(3)(f). Because the trial court erroneously relied on MCL 712A.2(b)(2) as a ground for termination, failed to make adequate findings regarding MCL 712A.19b(3)(f), and failed to explicitly address the children's relative placement, we vacate the termination order and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Respondent and the children's mother initially lived together as a family unit. On two occasions, ANT escaped their apartment while respondent was sleeping. On two other occasions respondent did not pick ANT up from school until police came to his home. Child protective services (CPS) investigated both of the latter incidents and substantiated a charge of improper supervision against respondent. In December 2018 respondent and mother ended their relationship. Mother relinquished primary care of MMT, who was not yet school-age, to petitioners, the maternal grandmother and her husband. Because ANT was enrolled in school, she continued to live with mother, who had entered a new relationship with a man who was physically abusive. ANT reported two incidents when she was knocked unconscious from abuse at the hands of mother's boyfriend. In June 2019, when the school year finished, ANT joined MMT living with petitioners.

Grandmother believed she would only be caring for the minor children temporarily. As she continued to take over more of the children's daily needs, she ran into issues because she was not the children's legal guardian and could not find the children's mother. As a result, grandmother petitioned the probate court to appoint her and her husband as guardians. Respondent appeared at a February 2020 hearing regarding the guardianship petition and consented to the guardianship. Respondent told the trial court he planned to have his life together to take custody of his children again by August 2020. The probate court explained respondent's rights and appointed grandmother and her husband as the legal guardians of ANT and MMT. Petitioners informed the probate court that they did not need financial support, so a child support order was not entered.

From March 2020 to March 2022, respondent visited the children only three times: once each in July 2020, August 2020, and December 2020. Respondent contacted the children via telephone only two or three times during the two-year period. Respondent did not provide petitioners any money to help care for his children during that same two-year period. In March 2022, petitioners initiated the instant litigation by petitioning the trial court to take jurisdiction of the minor children under MCL 712A.2(b)(1), (2), and (6), and terminate respondent's parental rights at the initial disposition under MCL 712A.19b(3)(f).^[2] After a three-day jury trial held regarding jurisdiction, a unanimous jury concluded a preponderance of the evidence supported jurisdiction.

The trial court held a five-day termination hearing beginning in January 2023 and ending in May 2023. Evidence and testimony showed petitioners handled all of the children's needs, whether it be medical, educational, spiritual, disciplinary, or nutritional. Respondent did not participate in any manner with respect to the children's medical appointments, dental visits, and school work. The children's therapist, Laura Gualdoni, testified termination of respondent's parental rights was in the best interests of the minor children because they had permanency and stability with petitioners. Dr. Harold Sommershield conducted psychological evaluations of petitioners, respondent, ANT, and MMT. He also performed an evaluation of the best interests of the minor children. Dr. Sommershield determined it was in the minor children's best interests for petitioners to adopt them. However, Dr. Sommershield believed it would be best for respondent to remain in the children's lives.

For his part, respondent blamed his lack of involvement in the children's lives on interference from grandmother. Respondent claimed grandmother did not return his calls and would not let him speak with or visit the children in the two years preceding the filing of the petition in this case. Grandmother testified she never barred respondent from contacting or visiting the children. After the petition was filed, the trial court gave discretion to petitioners regarding whether respondent could have parenting time. Petitioners permitted respondent to visit the children for one hour weekly and have one weekly telephone call. But respondent missed a substantial number of both, which he blamed on work. He also claimed grandmother did not allow him to reschedule any of the visits or telephone calls, which he contended inhibited him from developing a relationship with the children.

After the termination hearing, the trial court ruled from the bench. It found there was clear and convincing evidence of statutory grounds for termination, and that a preponderance of the evidence supported termination of respondent's parental rights was in the minor children's best interests. The trial court entered an order memorializing the decision, and this appeal followed.

II. STATUTORY GROUNDS FOR TERMINATION

A. STANDARD OF REVIEW

We review a trial court's factual findings regarding statutory grounds for termination of parental rights and the decision to terminate parental rights for clear error. MCR 3.977(K); In re White, 303 Mich.App. 701, 709; 846 N.W.2d 61 (2014). We also review a trial court's decision that termination is in a child's best interests for clear error. In re Atchley, 341 Mich.App. 332, 346; 990 N.W.2d 685 (2022). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re Sanborn, 337 Mich.App. 252, 276; 976 N.W.2d 44 (2021) (cleaned up). "To be clearly erroneous, a decision must be more than maybe or probably wrong." In re Ellis, 294 Mich.App. 30, 33; 817 N.W.2d 111 (2011). "When applying the clearerror standard in parental termination cases, 'regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.'" In re Mota, 334 Mich.App. 300, 320; 964 N.W.2d 881 (2020), quoting In re Miller, 433 Mich. 331, 337; 445 N.W.2d 161 (1989); see also MCR 2.613(C). "We review the interpretation and application of statutes and court rules de novo." In re Ferranti, 504 Mich. 1, 21; 934 N.W.2d 610 (2019).

B. APPARENT RELIANCE ON MCL 712A.2(B)(2)

Respondent argues the trial court erred when analyzing statutory grounds for termination by relying on a jurisdictional statute. We agree.

"In Michigan, child protective proceedings comprise two phases: the adjudicative phase and the dispositional phase." In re Sanders, 495 Mich. 394, 404; 852 N.W.2d 524 (2014). "Generally, a court determines whether it can take jurisdiction over the child in the first place during the adjudicative phase." Id. "The court can exercise jurisdiction if a respondent-parent enters a plea of admission or no contest to allegations in the petition, see MCR 3.971, or if the [petitioner] proves the allegations at a trial, see MCR 3.972." In re Ferranti, 504 Mich. at 15. "The question at adjudication is whether the trial court can exercise jurisdiction over the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders, including an order terminating parental rights." Id. "Jurisdiction must be established by a preponderance of the evidence." In re BZ, 264 Mich.App. 286, 295; 690 N.W.2d 505 (2004).

In this case, the trial court's jurisdiction was established after a jury concluded that jurisdiction under MCL 712A.2(b) was supported by a preponderance of the evidence. Petitioners contended jurisdiction was appropriate under MCL 712A.2(b)(2) and (6), and presented evidence of those grounds during trial. The jury specifically found: "One or more of the statutory grounds alleged in the petition concerning [ANT] and/or [MMT] have been proven." Respondent did not appeal the decision regarding jurisdiction at the time it was made, and does not challenge it in this appeal.

When the termination hearing ended, the trial court ruled from the bench, noting it first had to address whether statutory grounds existed to terminate respondent's parental rights, explaining the standard was clear and convincing evidence. After addressing and making findings regarding MCL 712A.19b(3)(f), the trial court then stated: "But also, [] the home environment, due to neglect by both parents, is an unfit place for the children to live." The trial court made factual findings and determined there was clear and convincing evidence "to support an unfit home ...." The language used by the trial court in its analysis regarding the home environment mimics the language used in MCL 712A.2(b)(2), which is a statutory ground for jurisdiction, not termination. There is no such similar ground for termination in MCL 712A.19b(3).

As our Supreme Court has explained: "In Michigan, child protective proceedings comprise two phases: the adjudicative phase and the dispositional phase." In re Sanders, 495 Mich. at 404. The adjudicative phase concluded when the jury determined jurisdiction was established under MCL 712A.2(b). The case then entered the dispositional phase,...