IN RE LASHONDA BURTON MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of CHELSEY BURTON, Minor.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
May 12, 2000
Petitioner-Appellee,
v
No. 222435
Calhoun Circuit Court
Family Division
LC No. 0-001236
CYNTHIA BURTON,
Respondent-Appellant,
and
TERRY BURTON,
Respondent.
In the Matter of LASHONDA BURTON, Minor.
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
v
No. 222652
Calhoun Circuit Court
Family Division
LC No. 0-001236
CYNTHIA BURTON,
Respondent-Appellant,
and
TERRY BURTON,
Respondent.
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Before: Fitzgerald, P.J., and Neff and Smolenski, JJ.
PER CURIAM.
In these consolidated cases, respondent Cynthia Burton appeals as of right a family court order
terminating her parental rights to her children Chelsey (born December 21, 1989) and LaShonda (born
November 20, 1988, pursuant to MCL 712A.19b(3)(a)(ii), (g), (i), (j) and (l); MSA
27.3178(598.19b)(3)(a)(ii), (g), (i), (j) and (l). We affirm.
In an action to terminate parental rights, the petitioner bears the burden of showing a statutory
basis for termination by clear and convincing evidence. MCR 5.974, In re Hamlet (After Remand),
225 Mich App 505, 522; 571 NW2d 750 (1997). Once the trial court finds at least one statutory
ground for termination by clear and convincing evidence, the court must terminate parental rights unless
it finds that there has been a showing by respondent that doing so is clearly not in the best interests of
the child. MCL 712A.19b(5); MSA 27.3178(598.19b)(5), In re Hall-Smith, 222 Mich App 470,
472; 564 NW2d 156 (1997). In an appeal from an order terminating parental rights, this Court reviews
the family court’s decision for clear error. MCR 5.974(I), In re Miller, 433 Mich 331, 337, 445
NW2d 161 (1989). A finding is clearly erroneous if, although there is evidence to support it, this Court
is left with a definite and firm conviction that a mistake has been made. Id.
The trial court terminated respondent’s parental rights pursuant to five statutory criteria:
(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.
***
(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.
***
(i) Parental rights to 1 or more siblings of the child have been terminated due to
serious and chronic neglect or physical or sexual abuse, and prior attempts to
rehabilitate the parents have been unsuccessful.
(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.
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***
(l) The parent's rights to another child were terminated as a result of
proceedings under section 2(b) of this chapter or a similar law of another state.1 [MCL
712A.19b(3); MSA 27.3178(598.19b)(3).]
In rendering its decision, the court commented on the long history of the Burton children’s case,
noting that it began with their eldest child in 1985. With regard to Chelsey, the trial court found that
respondent had deserted the child under subdivision a(ii) because she had had no contact with Chelsey
for eleven months, since Christmas 1997, and had not sought custody during that time. Further,
subdivision 3(g) was met because respondent had not provided appropriate care for Chelsey, including
food, clothing, monetary support, or emotional support, other than an occasional call from prison. The
parents had cared for Chelsey for only about one-and-a-half years during her life. Even that contact
was, in the court’s belief, harmful, exposing the child to criminality, depravity, and substance abuse. The
couple had been provided ample opportunity to overcome their shortcomings as parents, but failed to
comply with the case service plan over a two-year period. The history and nature of the parents’
crimes, including pandering, prostitution and probation violations, reflected upon respondent’s parenting
skills and ability.
The court found that there was no reasonable likelihood that respondent would provide proper
care and custody within a reasonable time. Chelsey’s special needs, given the severe psychiatric and
emotional trauma she had experienced, could not be addressed by either parent, having demonstrated
an inability to care for a normal child. Finally, respondent had had her rights to two other children
terminated for serious, chronic neglect.
In Docket No. 222345, respondent argues that the court erred in terminating her parental rights
in the manner it did because the welfare of her children was provided for under a guardianship, there
was no determination as to when she could participate in the case service plan, and no reasonable
attempt to secure her participation in the termination proceedings. Respondent cites no authority for
these contentions. A party may not merely announce a position and leave it to this court to rationalize
the basis for the claim Hamlet, supra at 521. Moreover, the record reflects that attempts were made
to secure respondent’s participation.
In Docket No. 222652, respondent argues that the court erred in terminating her parental rights
without giving her the opportunity to be released from prison and show that she had made adjustments
in her life that enabled her to parent LaShonda or to find a successor guardian. Even if the proffered
evidence had been considered, it likely would not have altered the court’s disposition in light of the
extensive evidence of the children’s behavioral and emotional problems, their need for a stable
environment and intensive therapy, and their increasing problems over their nearly lifelong deprivation of
consistent parental care. Hamlet, supra at 520-521.
Once a court finds that a statutory ground for termination is met by clear and convincing
evidence, termination is nondiscretionary. Hall-Smith, supra at 472. The court must terminate parental
rights unless it is clearly not in the child’s best interests. Id. The burden of going forward with evidence
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that termination is not in a child’s best interests rests on the respondent. Id. at 473. “Absent any
evidence addressing this issue by the parent, termination of parental rights is mandatory.” Id.
The court’s decision was not clearly erroneous. Respondent failed to properly care for her
children for several years before her incarceration. Respondent’s chronic abuse and neglect of her
children resulted in them being under the wardship of the court for most of their lives. There was
extensive testimony that the children suffered severe psychological and emotional trauma, resulting in
extreme behavioral problems, requiring psychiatric care and intensive outpatient counseling.
There was clear and convincing evidence that respondent failed to provide proper care or
custody for the children and there was no reasonable expectation that she could do so within a
reasonable time.
MCL 712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g).
Respondent was
incarcerated at the time her rights were terminated and had a lengthy criminal history involving drug
related charges and probation violations. The evidence showed that respondent could not provide
proper care for the children. Respondent failed to comply with the case service plan during the years
that FIA attempted to work with her. Expert testimony and evidence indicated that even if respondent
were not incarcerated and could physically assume Chelsey’s care, she would be unable to provide the
care that Chelsey needed, and that being in an unstable environment would be harmful to Chelsey. The
court did not err in terminating respondent’s rights on the b
asis of her fitness as a parent, MCL
712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g); Hamlet, supra at 515-516, 520, 525, and the
likelihood that the children would be harmed if returned to respondent’s home, MCL 712A.19b(3)(j);
MSA 27.3178(598.19b)(3)(j).
Additional grounds existed for terminating respondent’s parental rights in that her rights to two
other children were previously terminated because of chronic abuse and neglect. MCL 712A.19b(3)(i)
and (l); MSA 27.3178(598.19b)(3)(i) and (l). However, there was some evidence that respondent
recently may have written a letter to the children, which was not delivered, thereby refuting evidence of
desertion under MCL 712A.19b(3)(a)(ii); MSA 27.3178(598.19b)(3)(a)(ii). Nevertheless, four
statutory grounds for termination of parental rights were met by clear and convincing evidence. MCL
712A.19b(3)(g), (i), (j), and (l); MSA 27.3178(598.19b)(3)(g), (i), (j), and (l).
Respondent argues that the termination of parental rights was not in the children’s best interests
because it was the children’s actions and not her actions that led to removal from the guardian’s home.
Given the children’s needs and respondent’s lack of parental care for the greater part of their lives
because of her substance abuse and criminal history, her argument that termination is not in the
children’s best interests is without merit.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Janet T. Neff
/s/ Michael R. Smolenski
1
The statute, as quoted, was amended, effective July 1, 1999. Chelsey’s termination proceedings on
November 11, 1998 were subject to the former statutory provisions, while LaShonda’s proceedings on
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August 11, 1999, were subject to the current version. However, because the changes to the provisions
at issue were merely grammatical, they do not affect our disposition.
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