IN RE WAGNER MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of C. W. and C. W., Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
December 21, 2001
Petitioner-Appellee,
v
No. 232219
Genesee Circuit Court
Family Division
LC No. 98-110097-NA
ROBERT WAGNER,
Respondent-Appellant.
Before: Murphy, P.J., and Neff and Hoekstra, JJ.
PER CURIAM.
Respondent appeals as of right from an order terminating his parental rights to the minor
children pursuant to MCL 712A.19b(3)(j) and (n)(i)1. We reverse.
I
The original petition contained allegations that Eddie Wicks, who was the long-term
partner of the children’s mother (respondent’s former wife), Charlene Cochran, and the father of
Cochran’s two younger children, sexually abused respondent’s children, and that Cochran was
negligent in failing to prevent the abuse. Respondent and Cochran were divorced at the time of
the original petition and there were no allegations in the petition involving respondent.
Respondent was incarcerated at the time, a fact known to the petitioner. The court ordered that
neither respondent nor Wicks should have visitation with any of the children. Until that time, the
children had been visiting respondent regularly in jail and prison.
1
Respondent also argues that the trial court erred in terminating his parental rights under
§ 19b(3)(g), but the record reflects that the court did not rely on this subsection as a basis for
termination.
-1-
A supplemental petition alleged that Cochran had admitted taking her four children out of
state accompanied by Wicks and that all the children were sometimes with Wicks when he
picked Cochran up from work. Although there were again no allegations involving respondent,
other than that he was incarcerated, petitioner requested that the parental rights of all three
parents as to all four children be terminated. Petitioner’s basis for seeking termination of
respondent’s parental rights is not expressly stated in the petition. Essentially, respondent was
swept up in this termination proceeding because of the allegations against Wicks and Cochran.
II
Respondent argues that the trial court erred in finding that the elements set forth in
§ 19b(3)(j) and in § 19b(3)(n)(i) were established by clear and convincing evidence. We review
the trial court’s decision regarding termination in its entirety under the clearly erroneous
standard. MCR 5.974(I); In re Huisman, 230 Mich App 372, 384; 584 NW2d 349 (1998).
MCL 712A.19b(3)(j) provides:
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.
MCL 712A.19b(3)(n)(i) provides:
The parent is convicted of 1 or more of the following, and the court
determines that termination is in the child’s best interests because continuing the
parent-child relationship with the parent would be harmful to the child:
(i) A violation of . . . MCL . . . 750.520c [second-degree criminal sexual
conduct] . . . .
Respondent stipulated that he had been convicted of second-degree criminal sexual conduct. He
contends, however, that there was no evidence that continuing the parent-child relationship
would be harmful to the children. We agree and conclude that the decision to terminate was
premature.
The court deemed the testimony of the caseworkers regarding respondent’s conduct
during a jail interview2 to be “very significant,” inasmuch as this evidence, considered in
conjunction with respondent’s conviction of second-degree criminal sexual conduct for sexual
penetration with a twelve-year-old, established that respondent had “a significant, sexual
problem” in that he “act[ed] out in inappropriate and illegal and criminal sexual manners.” The
court found that it would not be in the best interests of respondent’s children to continue the
parent-child relationship with a parent who is a sexual predator against children3. When viewed
2
The caseworkers gave differing accounts of what occurred during the interview, but they
agreed that respondent appeared to touch or stroke his genitals during their discussion. One said
he did so with his hand on the outside of his clothing, the other said that he had his hand in his
pocket. A jail guard testified that jail jumpsuits had only breast pockets.
3
Defendant admitted his inappropriate and illegal conduct; the victim was his sister-in-law, he
(continued…)
-2-
in the broader context and in light of later events, respondent’s conduct referenced by the trial
court does not support the conclusion that termination is in the best interests of the children
because continuing the parent-child relationship would be harmful to the children.
Respondent’s testimony detailed his drug and alcohol abuse prior to his incarceration. He
also fully acknowledged his wrongdoing with regard to his sister-in-law and his acceptance of
the punishment which resulted. More importantly, he detailed the progress he had made in
prison with regard to his problems involving substance abuse and illegal sexual activity in
addition to taking advantage of educational and vocational opportunities; among other programs
respondent completed the requirements for a G.E.D., both phases of substance abuse therapy,
and sexual offenders therapy and he earned a certificate in horticulture technology and a
machinist’s certificate. He also testified that since paroled he attended AA & NA meetings
almost daily, all of his drug screens were negative and he was scheduled to begin further
substance abuse and sexual abuse therapy.
As noted, the trial court’s ruling on the best interests issue centered entirely on the jail
interview incident (which occurred shortly after respondent was arrested on the criminal sexual
assault charge) and on the criminal charge itself. While we do not minimize the significance of
these facts, they occurred before his rehabilitation efforts in prison of which the court apparently
took no note in his decision. Moreover, respondent never had the opportunity to demonstrate to
petitioner’s satisfaction his fitness to parent his children after his parole and in spite of his earlier
behavior. No expert testimony was introduced to indicate that respondent was a danger to his
children or that he had not benefited from the substance abuse and sexual abuse counseling he
had and was continuing to receive.
It is important to note that this is not a case where the children are “languishing
indefinitely in the temporary custody of the court.” In re Trejo Minors, 462 Mich 341, 351; 612
NW2d 407 (2000). The termination petition against the mother, Cochran, was withdrawn and
she has custody of the children. There is no apparent urgency in terminating respondent’s
parental rights. In addition, because of the conditions of respondent’s parole, he will not be
allowed to have contact with the children in the immediate future, giving him the opportunity to
prove to petitioner’s satisfaction that he is not a danger to his children and to take advantage of
any assistance programs petitioner has to offer.
Respondent was a certified welder before his incarceration and, as noted, he completed
several vocational programs while in prison. He has maintained employment continuously since
his parole and changed jobs for better wages and, in the job he obtained just before the hearing,
for health and other benefits. He was providing financial assistance to Cochran for the children
and was arranging with the friend of the court to formalize his support obligation.
(…continued)
pled guilty and spent over four years incarcerated as a result. However, there was no other
evidence that he sexually abused or assaulted any other person and when his eight-year-old
daughter was questioned about respondent at the termination hearing she emphatically denied
that he had ever abused her in any way. Accordingly, we are unable to conclude on the record
before us, as the trial court did, that defendant is a “sexual predator against children.”
-3-
As noted, respondent had regular visitation with the children until the original petition
was filed. The visits could not continue after the trial court ordered that neither Wicks nor
respondent could have visitation with the children. However, during the balance of his
incarceration, respondent kept in contact with the children through letters and phone calls. He
sent them birthday and Christmas gifts, as well. Testimony of the two parole officers who
supervised respondent clearly showed his concern that he be reunited with his children. He has
apparently complied with the conditions of his parole carefully, including not contacting his
children.
A careful review of the record leaves us with the definite and firm conviction that a
mistake has been made. In re Boursaw, 239 Mich App 161, 176; 607 NW2d 408 (1999). These
termination proceedings resulted from the actions of Wicks and Cochran and while respondent
may yet prove to be unfit to parent his children, the record shows that the petitioner has not
carried its burden of proving that by clear and convincing evidence. The record further shows
that the respondent has made significant efforts to remedy his past behavioral misdeeds.
As quoted by this Court in Boursaw, id., “‘[t]he fundamental liberty interest of natural
parents in the care, custody, and management of their child does not evaporate simply because
they have not been model parents . . . .’ Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71
L Ed 2d 599 (1982).” Closing the door to the possibility of respondent’s reunification with his
children is not justified where the children are not in foster care, respondent has made significant
efforts to right his life, he is under the continuing supervision of the Department of Corrections
as a result of his parole status and there is ample opportunity for the petitioner to provide
assistance to respondent and to determine when or if he should be permitted contact with his
children. As we view the record, the petitioner has failed to establish adequate justification for
termination and the trial court’s conclusion that there is a reasonable likelihood of harm to the
children if reunited with respondent seems conjectural on these facts. In re Sours Minors, 459
Mich 624, 636; 593 NW2d 520 (1999).
Reversed.
/s/ William B. Murphy
/s/ Janet T. Neff
/s/ Joel P. Hoekstra
-4-
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