IN RE JENNA KAY BANICKI MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of JENNA KAY BANICKI, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
March 1, 2007
Petitioner-Appellee,
v
No. 271470
Berrien Circuit Court
Family Division
LC No. 2006-000011-NA
ALANA DAWN BANICKI,
Respondent-Appellant,
and
PERRY FRAZIER,
Respondent.
Before: Hoekstra, P.J., and Markey and Wilder, JJ.
PER CURIAM.
Respondent-appellant appeals as of right from the trial court’s order terminating her
parental rights to the minor child pursuant to MCL 712A.19b(3)(m). We affirm. This appeal is
being decided without oral argument pursuant to MCR 7.214(E).
Respondent-appellant argues that this Court should reject a strict interpretation of MCL
712A.19b(3)(m) as unreasonable. Because respondent-appellant failed to preserve this issue for
appellate review by raising it before the trial court, our review is limited to plain error affecting
her substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(m),
which allows for termination where “[t]he parent’s rights to another child were voluntarily
terminated following the initiation of proceedings under section 2(b) of this chapter or a similar
law of another state.” The evidence clearly and convincingly supported termination under
subsection (m). In re Jackson, 199 Mich App 22, 25; 501 NW2d 182 (1993). Unrebutted
evidence, including respondent’s own testimony, showed that her older children were removed
from her care in 2001 because of parental neglect and, in April 2005, during the resultant
protective proceedings in Illinois, she voluntarily released her parental rights to those children.
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Respondent, however, asserts that the Legislature could not have intended for parental
rights to be terminated under subsection (m) solely on the basis that a parent voluntarily
terminated her rights to another child and without considering the parent’s current situation,
parental neglect, or whether she rectified her issues. We disagree. The Legislature is presumed
to have intended the meaning it plainly expressed. In re RFF, 242 Mich App 188, 198; 617
NW2d 745 (2000). Subsection (m) is clear and unambiguous and plainly expresses the
Legislature’s intent that parental rights can be terminated where a parent has voluntarily released
her rights to another child after the initiation of neglect proceedings in Michigan or another state.
“[W]hen the statutory language is clear and unambiguous, judicial construction is neither
required nor permitted.” Id. Nothing in subsection (m), unlike in subsection (i), suggests that it
is necessary for petitioner to establish either prior serious or chronic parental neglect or that a
parent’s prior attempts to rehabilitate have been unsuccessful. MCL 712A.19b(3)(i). Therefore,
termination under subsection (m) based on respondent’s prior terminations was proper.1
Respondent-appellant correctly notes that, because of her prior voluntary terminations,
there was no possibility of her prevailing with regard to subsection (m). In re AMAC, 269 Mich
App 533, 539; 711 NW2d 426 (2006). However, contrary to her argument, application of
subsection (m) does not mean that any parent who previously voluntarily terminated their rights
to another child automatically loses their parental rights to any subsequent children. Instead, the
statutory scheme provides a parent an opportunity to persuade the court that termination was
clearly not in the child’s best interests. MCL 712A.19b(5); In re AMAC, supra at 539. Here,
respondent-appellant was provided that opportunity through her own testimony, witnesses’
testimony, and several letters from service providers noting her progress. However, the
evidence, considered in its entirety, failed to establish that termination of respondent-appellant’s
parental rights was clearly not in the child’s best interests, MCL 712A.19(b)(5), especially given
the testimony indicating that immediate stability and permanency was of paramount importance
for the child’s emotional and mental wellbeing. Although respondent-appellant’s recent progress
toward rehabilitation since her release from prison was commendable, she clearly could not
provide the child with such stability or permanency as evidenced by her lengthy history of
neglecting her children, her longstanding substance abuse problem, her lack of current
employment and independent housing, and her previous, largely unsuccessful rehabilitative
efforts. On this record, the trial court did not clearly err in finding that termination was in the
1
We note that Michigan courts recognize the doctrine of anticipatory neglect (“[h]ow a parent
treats one child is certainly probative of how that parent may treat other children.” In re AH, 245
Mich App 77, 84, 627 NW2d 33 (2001), quoting In re LaFlure, 48 Mich App 377, 392; 210
NW2d 482 (1973); see also, In re Powers, 208 Mich App 582, 592; 528 NW2d 799 (1995); In re
Dittrick, 80 Mich App 219, 222; 263 NW2d 37 (1977). Here, there was an adjudication of
neglect and abuse concerning respondent-appellant’s older children. Further, the petition
regarding the child at issue in this case was based on allegations of serious parental neglect and
failure to protect the child from sexual abuse. Accordingly, the circumstances in this case
sounded in abuse and neglect.
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child’s best interests. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000).2 Therefore,
no plain error occurred.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
2
The trial court went beyond the best interest inquiry under MCL 712A.19b(5). The statute does
not require that the court affirmatively find that termination is in the child’s best interests. In re
Trejo, supra at 364 n 19.
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