IN RE LEON MCPHERSON III MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of LEON McPHERSON, III, Minor.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
December 26, 2000
Petitioner-Appellee,
v
No. 227226
Genesee Circuit Court
Family Division
LC No. 99-111829-NA
LEON McPHERSON, JR,
Respondent-Appellant.
Before: Griffin, P.J., and Holbrook, Jr., and Murphy, JJ.
PER CURIAM.
Respondent appeals as of right from the trial court's order terminating his parental rights
to his eight-month-old son pursuant to MCL 712A.19b(3)(a)(ii) and (g); MSA
27.3178(598.19b)(3)(a)(ii) and (g). We affirm.
A two-prong test applies to a decision of the family division of circuit court to terminate
parental rights. "First, the probate court must find that at least one of the statutory grounds for
termination, MCL 712A.19b; MSA 27.3178(598.19b), has been met by clear and convincing
evidence." In re Jackson, 199 Mich App 22, 25; 501 NW2d 182 (1993). We review the family
court's decision for clear error. MCR 5.974(I); In re Miller, 433 Mich 331, 337; 445 NW2d 161
(1989); In re Sours Minors, 459 Mich 624, 633; 593 NW2d 520 (1999). 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 had been made. Miller, supra. Once a statutory ground for termination
of parental rights is established, the court must terminate parental rights unless it finds that
termination of parental rights to the child is clearly not in the child's best interest. MCL
712A.19b(5); MSA 27.3178(598.19b)(5); MCR 5.974(E)(2); In re Trejo, 462 Mich 341, 364365; 612 NW2d 407 (2000).
Respondent first challenges the trial court's findings that clear and convincing evidence
supported termination under the identified statutory provisions. Those subsections, MCL
712A.19b(3)(a)(ii) and (g); MSA 27.3178(598.19b)(3)(a)(ii) and (g), provide:
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(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.
***
(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.
Respondent argues that termination is improper and cannot be justified in this case on the
rationale that his actions of self-improvement were "too little - too late." Respondent contends
that the reasons for his demonstrated lack of involvement in the child's life primarily relate to the
affirmative efforts of FIA employees to exclude him from court proceedings and from services
provided to the child's mother. Contrary to respondent's arguments, however, at most the FIA
employees informed respondent of various court orders mandating no contact with the child's
mother and no visitation with the child, and advised him of the possible consequence of violation
of those orders.
On review of the record it appears clear that respondent freely elected to avoid presenting
himself to the trial court to answer questions regarding the alleged domestic abuse. Despite
testimony evidencing respondent's seemingly sincere concern for the child's circumstances during
contacts and phone conversations with various workers, respondent failed to follow through with
action that would have supported his professed intention to deal with the issues of domestic
abuse and tangibly demonstrated his announced desire to initiate contact with his child.
Specifically, as the trial court found, when advised by the foster care worker that he should both
meet with the worker and contact his attorney in order to initiate efforts to lift the court orders,
respondent not only failed to appear for scheduled meetings but also failed to seek assistance
from his attorney.
The foster care worker testified that he spoke directly with respondent about the orders
and that he clearly informed respondent that discontinuance of the "no-visitation" was
conditioned on respondent answering to the court. He further testified that he provided
respondent with respondent's attorney's telephone number, advising him to contact his attorney
and request that his attorney file a motion for rehearing on the issue of visitation. The foster care
worker testified that because respondent failed to take any steps to contact his attorney, to go
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back into court or to request visitation, he believed that he was justified in filing the petition to
terminate parental rights based on abandonment for more than 91 days.
We conclude that the trial court did not clearly err in relying on subsection (3)(a)(ii) and
terminating respondent's parental rights on the ground that respondent deserted the child for more
than 91 days. Clear and convincing evidence supporting one statutory ground for termination is
all that is required, thus we need not address subsection (3)(g).
Respondent next challenges the court's determination concerning the child's best interests.
Contrary to respondent's contention, the trial court did not impose on respondent a burden
of producing evidence that termination was not in the child's best interests. Rather, the court
appropriately considered and weighed all the evidence relative to the child's best interests. In so
doing, the court concluded that testimony concerning the successful attachment of the child to the
foster mother was dispositive, outweighing the father's testimony that he believed the child
would benefit from placement with him because his three other children would help the child
socially.
Review of the entire record demonstrates that the child has been with the foster mother
his whole life, taken from his natural mother five days after birth because of her drug use, and
kept away from respondent who was charged, and later jailed pending trial, in connection with
various incidents of domestic abuse. Contrary to respondent's argument that he cannot be blamed
for his lack of involvement in the child's life, the FIA did not entirely keep him from involvement
in services, nor did workers threatened him with arrest if he appeared at court proceedings. In
fact, respondent was advised to attend a meeting to set up a service plan and arrange appearance
before the court. Respondent never appeared for this meeting, and initiated no efforts through
the court to resolve these issues. Under these circumstances, the court did not abuse its
discretion in failing to find that termination was clearly not in the child's best interests.
Affirmed.
/s/ Richard Allen Griffin
/s/ Donald E. Holbrook, Jr.
/s/ William B. Murphy
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