IN RE IRWIN/SCHOOLCRAFT MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of KATTIE IRWIN, DAWSON
IRWIN and SHYANNE LYNN RENEE
SCHOOLCRAFT, Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
July 13, 2001
Petitioner-Appellee,
v
No. 229012
Cheboygan Circuit Court
Family Division
LC No. 98-000531-NA
RONALD IRWIN,
Respondent-Appellant,
and
SHARICA SCHOOLCRAFT,
Respondent.
Before: Hood, P.J., and Whitbeck and Meter, JJ.
PER CURIAM.
Respondent-appellant (“respondent”) appeals by right from the family court's order
terminating his parental rights to three minor children under MCL 712A.19b(3)(g) (“[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”) and MCL 712A.19b(3)(h) (“[t]he 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”).1 We affirm.
1
At one point in his appellate brief, respondent appears to contend that the family court relied on
(continued…)
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Respondent first argues that the family court did not have subject-matter jurisdiction in
this case and that the order terminating his parental rights must be reversed because although
respondent was incarcerated, he was willing and able to care for the children by placing them
with their paternal grandparents. We review jurisdictional questions de novo. Jackson
Community College v Dep’t of Treasury, 241 Mich App 673, 678; 621 NW2d 707 (2000).
We disagree that reversal based on a lack of jurisdiction is warranted here. Indeed, the
family court properly acquired subject-matter jurisdiction over this case based on the neglectful
conduct of the children’s mother, and respondent did not argue below, nor does he argue on
appeal, that the court erred in this finding. Accordingly, respondent’s argument regarding the
lack of subject-matter jurisdiction is without merit. See, e.g., In re Gillespie, 197 Mich App 440,
442; 496 NW2d 309 (1992) (indicating that the “subject matter” in child protective proceedings
is “the child”), and In re Mayfield, 198 Mich App 226, 234-235; 497 NW2d 578 (1993)
(indicating, in an appeal from an order terminating the parental rights of the father, that the
family court acquired subject-matter jurisdiction over the child because of the mother’s neglect).
See also In re Hatcher, 443 Mich 426, 444; 505 NW2d 834 (1993), and In re Powers, 208 Mich
App 582, 587-588; 528 NW2d 799 (1995) (indicating that the assumption of jurisdiction over a
child cannot be collaterally attacked during an appeal from an order terminating parental rights).2
Moreover, respondent is incorrect in arguing that the family court could not have properly
assumed jurisdiction because of the existence of other relatives who could care for the children
while respondent remained incarcerated. First, we note that the holding of In the Matter of
Taurus F, 415 Mich 512, 535-537; 330 NW2d 33 (1982), on which respondent relies in arguing
that placing a child with a suitable relative constitutes proper care and custody, was the product
of an equally divided Supreme Court and therefore does not constitute binding precedent. See
People v Armstrong, 207 Mich App 211, 215; 523 NW2d 878 (1994). In addition, the evidence
is clear that respondent had not prevented the children from living in an unfit home at the time
the court took jurisdiction. See In re Systma, 197 Mich App 453, 456-457; 495 NW2d 804
(1992). No error occurred in this case with regard to jurisdiction.3
(…continued)
an outdated version of MCL 712A.19a(e) and (f) in terminating his parental rights. The family
court did not in fact cite these provisions, which were superseded by new language in 1988, in
ruling on the termination proceedings.
2
To the extent that respondent cites In re Ferris, 151 Mich App 736; 391 NW2d 468 (1986), for
a holding contrary to Hatcher and Powers, we note that Ferris relied on Fritts v Krugh, 354
Mich 97; 92 NW2d 604 (1958), which was explicitly overruled by Hatcher, supra at 444.
3
Respondent’s brief at times seems to confuse subject-matter jurisdiction with personal
jurisdiction. To the extent respondent is contending that the family court failed to acquire
personal jurisdiction over him, this contention is without merit. Indeed, respondent does not
even argue that he was not notified of or did not attend the proceedings in this case. See, e.g., In
re Gillespie, supra at 442-443 (discussing personal jurisdiction in child protective proceedings).
Moreover, respondent failed to cite any authority pertaining to personal jurisdiction and has
therefore waived the issue for appeal. See Great Lakes Division of Nat'l Steel Corp v City of
Ecorse, 227 Mich App 379, 422; 576 NW2d 667 (1998).
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Next, respondent contends that the trial court improperly terminated his parental rights
because the paternal grandparents were willing to care for the children and respondent therefore
could give the children a proper home. We review for clear error a family court’s finding that a
statutory basis for termination has been met. MCR 5.974(I); In re Trejo Minors, 462 Mich 341,
356-357; 612 NW2d 407 (2000). Once a statutory basis has been proven by clear and convincing
evidence, the court must terminate parental rights unless the court finds that termination is clearly
not in the best interests of the child. Trejo, supra at 344, 355. A court’s finding on the best
interests prong is also reviewed by this Court for clear error. Id. at 356-357, 365.
We disagree that the family court erred by terminating respondent’s parental rights
despite the possibility of placing the children with the paternal grandparents. Indeed, a family
court is not required to place a child in the care of relatives. In re McIntyre, 192 Mich App 47,
52; 480 NW2d 293 (1991). In In re IEM, 233 Mich App 438, 451; 592 NW2d 751 (1999), for
example, the respondent argued that because her mother and grandmother could adequately care
for the child, there was no basis on which to terminate her parental rights. The court disagreed,
stating “[i]f it is in the best interests of the child, the . . . court may properly terminate parental
rights instead of placing the child with relatives.” Id. at 453.
In In re SD, 236 Mich App 240, 247; 599 NW2d 772 (1999), the respondent argued that
there was insufficient evidence to terminate his parental rights under MCL 712A.19b(3)(h)
because even though he was incarcerated, the children would be able to reside in a normal home
with their mother in the meantime. This Court disagreed, stating that “[e]ven if respondent is
paroled in less than four years,” there was little likelihood that the children would end up with a
normal home, given the respondent’s sexual abuse of the children. Id. Here, even though
respondent was imprisoned for the sexual abuse of a minor other than his own child, he
nonetheless posed a risk to his own children, given his documented diagnoses of pedophilia,
alcohol abuse, and anti-social personality disorder.4 Accordingly, the reasoning of SD provides
support for the trial court’s decision in this case.
Moreover, we note once again that respondent did not prevent his children from being in
an abusive situation while he was imprisoned. This fact also supported the trial court’s decision
to terminate respondent’s parental rights. See, generally, Systma, supra at 457. For purposes of
termination, it does not matter whether respondent’s failure to prevent the abuse was intentional
or unintentional. MCL 712A.19b(3)(h). We additionally note that respondent acknowledged at
the termination hearing that he was unlikely to gain custody of his children because of his
background and his lack of personal contact with the children resulting from his prison term.
Accordingly, respondent essentially contended that the children would remain with his parents
indefinitely. This fact also provided support for the trial court’s decision. See, generally, In re
Ernst, 130 Mich App 657, 663; 344 NW2d 39 (1983). Indeed, the court acknowledged that the
4
While the court refused to terminate respondent’s parental rights solely on his diagnoses and the
corresponding possibility that the children would be harmed by respondent if returned to his care,
the court, by adopting petitioner’s closing statement with regard to the best interests prong of the
analysis in this case, nonetheless acknowledged that respondent’s diagnoses would likely make
his home an unfit place for children (petitioner’s statement emphasized respondent’s diagnoses).
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children, especially given their ages, needed permanency in their lives. See McIntyre, supra at
52.
Finally, we emphasize that respondent has been imprisoned since 1993 and is likely to
remain imprisoned for several more years. One of the children was four-and-one-half years old
at the time the incarceration commenced and was seven at the time of the termination hearing.
The other two children had not even been conceived at the time of respondent’s incarceration.5
These facts demonstrate that there was essentially no bonding between respondent and the
children.
In light of the foregoing facts and case law, we simply cannot say that the family court
clearly erred in determining that a statutory basis for termination existed6 and that termination
was in the best interests of the children.7
Affirmed.
/s/ Harold Hood
/s/ Patrick M. Meter
5
Respondent, without objection, was treated as the father of these two children during the instant
proceedings because he was married to their mother when they were born.
6
We note that only one statutory basis need be established to warrant termination. See Trejo,
supra at 360.
7
Although his argument is not well-developed, respondent appears to make an additional
contention in his appellate brief: that the children should have been placed with his parents at the
commencement of the child protective proceedings in this case. We conclude that respondent
waived this argument by failing to formally challenge the children’s placement at an earlier stage
in the proceedings. Moreover, any error in this regard would not affect our decision that the
family court did not clearly err in terminating respondent’s parental rights.
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