IN RE BAXTER MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of PRESTON DAYNE BAXTER,
DEVON VANCE BAXTER, and BEJAMIN
STEEL BAXTER, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
February 12, 2008
Petitioner-Appellee,
v
No. 279833
Genesee Circuit Court
Family Division
LC No. 93-096311-NA
BYRON VAN BAXTER,
Respondent-Appellant.
Before: Talbot, P.J., and Cavanagh and Zahra, JJ.
PER CURIAM.
Respondent appeals as of right from a circuit court order terminating his parental rights to
the minor children pursuant to MCL 712A.19b(3)(b)(i), (g), (j), and (k). We affirm.
Petitioner sought termination of respondent’s parental rights at the initial dispositional
hearing. The trial court held a single hearing, following which it determined that it had
jurisdiction over the children, that there were grounds for termination, and that termination was
in the children’s best interests. Respondent does not dispute the trial court’s assumption of
jurisdiction and concedes that there were statutory grounds for termination. His sole claim on
appeal is that the trial court erred by terminating his parental rights without holding a separate
“best interests” hearing. Respondent did not raise this procedural issue below and, therefore, it
has not been preserved for appeal. Keenan v Dawson, 275 Mich App 671, 681; 739 NW2d 681
(2007). Accordingly, “review is limited to determining whether a plain error occurred that
affected substantial rights.” In re Egbert R Smith Trust, 274 Mich App 283, 285; 731 NW2d 810
(2007).
Respondent has shown plain error. A trial court may terminate parental rights at the
original dispositional hearing if the preponderance of the evidence adduced at trial establishes
grounds for the assumption of jurisdiction under MCL 712A.2(b) and the court finds on the basis
of clear and convincing legally admissible evidence that one or more facts alleged in the petition
are true and establish grounds for termination under MCL 712A.19b(3). MCR 3.977(E).
However, the court cannot terminate parental rights at the conclusion of the adjudicatory hearing;
it must first conduct a dispositional hearing, either immediately following the adjudicatory
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hearing or at some later date after proper notice, to give the respondent “an opportunity to
persuade the court that, although a statutory ground for termination is met, termination is not in
the best interests of the child.” In re AMAC, 269 Mich App 533, 538-539; 711 NW2d 426
(2006). By holding a single hearing rather than a bifurcated one, the trial court erred. However,
respondent has not shown that the error affected his substantial rights.
In In re AMAC, for example, reversal was required because at the time of the
adjudicatory hearing, respondent understood that there would be a subsequent “best interests
hearing” and thus, although she had witnesses who would offer testimony relevant to the issue of
disposition, they were not called at the adjudicatory hearing. In addition, the trial court neglected
to address the best interests factor in its opinion. Id. at 535, 539-540. In this case, by contrast, it
was understood that the purpose of the hearing was “to terminate father’s parental rights to the
three children at the initial disposition”; there was no indication that a separate dispositional
hearing would be held. Respondent, who attended the hearing, elicited testimony favorable to
himself from petitioner’s witnesses, he had an opportunity to present additional evidence on the
issue had he wished to do so, and the trial court did address the best interests factor. Further,
respondent has not identified any evidence to be presented that might warrant a finding that
despite the horrific abuse that respondent perpetrated on his family, termination was clearly not
in the children’s best interests. MCL 712A.19b(5).
Affirmed.
/s/ Michael J. Talbot
/s/ Mark J. Cavanagh
/s/ Brian K. Zahra
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