IN RE CUTTS MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of A.D.C., L.D.C., L.C.C., and T.E.C.,
Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
December 13, 2002
Petitioner-Appellee,
v
No. 239587
Wayne Circuit Court
Family Division
LC No. 00-389065
LATONYA CUTTS,
Respondent-Appellant,
and
LATONCE KATHON BENSON, MICHAEL
THORNTON, and ALFONSO WINN, a/k/a
ALPHONZO WINN, a/k/a ALPHONZO WYNN,
Respondents.
Before: Owens, P.J., and Murphy and Cavanagh, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to her
children pursuant to MCL 712A.19b(3)(a)(ii), (c)(i), (g), (j), and (k)(i).1 We affirm in part and
reverse in part. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
We review a trial court’s decision to terminate parental rights for clear error. MCR
5.974(I); In re Sours, 459 Mich 624, 633; 593 NW2d 520 (1999). If the trial court determines
that the petitioner has proven by clear and convincing evidence the existence of one or more
1
The trial court’s order also terminated the parental rights of respondent Latonce Kathon
Benson, the legal father of the children, respondent Michael Thornton, the putative father of
A.D.C., and respondent Alfonso Winn, the putative father of L.D.C. Benson, Thornton, and
Winn have not appealed the order.
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statutory grounds for termination, the court must terminate parental rights unless it finds from
evidence on the whole record that termination is clearly not in the child’s best interests. MCL
712A.19b(5); In re Trejo, 462 Mich 341, 353-354; 612 NW2d 407 (2000). We review the trial
court’s decision regarding the child’s best interests for clear error. Id. at 356-357.
We hold the trial court did not clearly err in finding that petitioner established by clear
and convincing evidence the existence of one or more statutory grounds for the termination of
respondent’s parental rights. The children were removed from respondent’s custody because she
left them unsupervised and because she appeared to be under the influence of a controlled
substance. The evidence produced at the termination hearing showed that respondent had made
virtually no effort to comply with the terms of the parent-agency agreement. In particular,
respondent had not undergone substance abuse treatment to address her use of crack cocaine, and
had not visited the children for several months. Respondent was unable to give a legitimate
reason for her failure to comply with the parent-agency agreement. The failure to comply with a
parent-agency agreement is evidence that return of a child to the parent could cause a substantial
risk of harm to the child. MCR 5.973(C)(4)(b). Respondent’s circumstances at the time of the
termination hearing were essentially the same as when the children were removed from her
custody.
Thus, the trial court did not clearly err in finding that termination of respondent’s parental
rights was warranted on the grounds that were properly listed in the petition: the conditions that
led to adjudication continued to exist and were not likely to be rectified within a reasonable time,
MCL 712A.19b(3)(c)(i); that respondent failed to provide proper care or custody for the children
and could not be expected to do so within a reasonable time, MCL 712A.19b(3)(g); and that
there was a reasonable likelihood that the children would be harmed if returned to respondent’s
custody, MCL 712A.19b(3)(j). Moreover, the evidence did not show that termination of
respondent’s parental rights was clearly not in the children’s best interests. MCL 712A.19b(5);
Trejo, supra.
However, we believe that the trial court erred in terminating respondent’s parental rights
pursuant to MCL 712A.19b(3)(a)(ii) and (k)(i). Respondent was never given notice that she
would have to defend on those grounds. These grounds were not listed in the petition, nor was
the petition amended before or during the termination hearing to include them.2
Affirmed in part and reversed in part. We do not retain jurisdiction.
/s/ Donald S. Owens
/s/ William B. Murphy
/s/ Mark J. Cavanagh
2
We have held that a failure to include the specific statutory basis for termination is not a
violation of due process as long as facts are pleaded with sufficient specificity to give a
respondent notice of the reasons that would justify termination of respondent’s parental rights.
In re Slis, 144 Mich App 678, 684; 375 NW2d 788 (1985). In the instant matter, the petition did
not allege sufficient facts to put respondent on notice that petitioner would be relying on either
subsection (a)(ii) and (k)(i).
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