IN RE KYLIE GRACE LABO MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of KYLIE GRACE LABO, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
March 11, 2008
Petitioner-Appellee,
v
No. 279231
Oakland Circuit Court
Family Division
LC No. 06-724342-NA
MONICA GRACE LABO,
Respondent-Appellant,
and
ERIC JAMES LABO,
Respondent.
In the Matter of KYLIE GRACE LABO, Minor.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 279370
Oakland Circuit Court
Family Division
LC No. 06-724342-NA
ERIC JAMES LABO,
Respondent-Appellant,
and
MONICA GRACE LABO,
Respondent.
Before: Murray, P.J., and Bandstra and Fort Hood, JJ.
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PER CURIAM.
In these consolidated appeals, respondent-mother appeals as of right from the trial court’s
order terminating her parental rights to the minor child under MCL 712A.19b(3)(f), (g), and (j),
and respondent-father appeals as of right from the same order terminating his parental rights to
the child under MCL 712A.19b(3)(f) and (g). We affirm.
I. Facts and Proceedings
Following the minor child’s birth in October 2003, respondents became addicted to
heroin and protective services became involved with the family. In order to avoid the child
being placed in foster care, respondents agreed to place her in a limited guardianship with her
maternal grandmother, Patricia Denny. Pursuant to a March 2004 guardianship plan,
respondents agreed to become drug free, find employment and housing, visit the child, and
provide $400 monthly. In the first six months of the guardianship, respondents visited
sporadically, never phoned, and did not provide any support. The guardianship was renewed for
an additional six months. Shortly afterwards, Denny, who was struggling financially and
emotionally, petitioned the court to name her neighbor and friend, Michelle LaPierre, who had
been helping Denny care for the child, as co-guardian. In November 2004, the child moved in
with LaPierre, who began providing for all of her needs. After the limited guardianship had been
in effect for a full year, the court, finding that respondents had failed to comply with the terms of
the guardianship agreement, converted the limited guardianship to a full guardianship. On July
31, 2006, the child’s guardian ad litem filed a petition to terminate both respondents’ parental
rights. Petitioner filed a termination petition, with the guardian ad litem as co-petitioner, on
September 26, 2006.
Respondents requested a jury trial on the issue of jurisdiction. The court advised the jury
to consider the two-year period preceding the filing of the July 31, 2006, petition in establishing
the court’s jurisdiction over the child. Denny testified that, during the nine months the child was
in her care, respondents had not provided any financial support, had visited only sporadically,
had not called, and had written only a few letters. LaPierre testified that, from the time the child
came into her care in November 2004 to the date the petition was filed on July 31, 2006,
respondent-mother had provided three $50 checks, two dresses, and a purse for the child’s
support, and had visited the child between five and ten times. During that same time,
respondent-father had not provided any financial support, had visited the child about five times,
and did not send any correspondence.
The evidence showed that respondent-father had been incarcerated from October 2004 to
February 2005. Upon his release, he moved, placing him about three hours away from the minor
child’s home. In December 2005, he became employed as a merchandising carpenter for Lowe’s
Home Improvement Stores, a job requiring his assignment to different stores across the country
for eight-week stints to remodel stores. Beginning February 25, 2006, $236 was withheld from
respondent-father’s biweekly paychecks for child support.1 As of July 31, 2006, respondentfather had paid over $900 pursuant to withholding. He testified that he was prepared to care for
1
Although the evidence showed this money was withheld, it was not clear whether Dennis or
LaPierre had actually received any of these funds.
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the child and had planned to have his sister-in-law and brother care for her when he was on job
assignments. He claimed to have stopped using drugs upon his October 2004 incarceration.
Respondent-mother testified that she was either incarcerated or in rehabilitation programs
for a year and a half between March 2005 and March 2007. She had last been incarcerated in
May 2006 and anticipated being released in April 2007. She claimed she had not used drugs
since May 2006.
The jury found that jurisdiction had been established. The court ordered that both
respondents undergo psychological evaluations to help the court with the best interests
determination. At the best interests hearing on May 25, 2007, the evaluator testified that
respondent-father had cancelled his appointment for an evaluation and failed to reschedule in a
timely manner. Respondent-mother had participated in an evaluation, and the evaluator found
that she was an individual who was likely to engage in risk-taking behaviors and have difficulty
benefiting from her experiences. The evaluator concluded that there was no reasonable
likelihood that respondent-mother would be able to provide appropriate care and custody for the
child within a reasonable time due to her history, current test findings, and the failure of
substance abuse treatment.
II. Analysis
On appeal, respondents first challenge termination under each of the statutory grounds
cited by the court. We review the trial court’s findings for clear error. MCR 3.977(J).
Termination under MCL 712A.19b(3)(f) requires consideration of a parent’s contributions and
contacts during the two years preceding the filing of the termination petition. In considering the
support provision of MCL 712A.19b(3)(f)(i), if a support order is in place, the petitioner needs
only to prove that the parent has failed to comply with the order for the statutory period. See In
re Hill, 221 Mich App 683, 692; 562 NW2d 254 (1997).
With regard to respondent-father, a January 22, 2004, default judgment against him
required child support in the amount of $257 per month. Respondent-father did not pay any
child support until February 2006, and he paid over $900 between February 2006 and July 31,
2006, pursuant to withholding from his biweekly paychecks. Because respondent-father had
contributed substantially less than required under the January 2004 support order during the two
years before the termination petition was filed, the trial court did not clearly err in finding that
respondent-father had failed to provide support as required under MCL 712A.19b(3)(f)(i).
Under the second prong of MCL 712A.19b(3)(f), there must be clear and convincing
evidence that respondent-father failed to “regularly and substantially” visit, contact or
communicate with his child for the two years preceding the filing of the termination petition.
The evidence of respondent-father’s minimal contacts with the child was sufficient to establish
that he had failed to regularly and substantially visit, contact, or communicate with her.
Respondent-father argues that his circumstances, including his incarceration, subsequent move
away from the minor child’s home, and employment requiring out of area assignments, place
him outside the statute because he lacked the ability to visit. However, these circumstances did
not preclude him from contacting the child by phone or mail. Thus, the trial court did not clearly
err when it found a lack of regular and substantial contact in support of the second prong for
termination under MCL 712A.19b(3)(f). Because both prongs for termination, support and
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contact, were established with regard to respondent-father, the trial court did not clearly err in
terminating respondent-father’s parental rights under MCL 712A.19b(3)(f).
With regard to respondent-mother, no support order was in place, and the court therefore
had to consider whether “the parent, having the ability to support or assist in supporting the
minor, has failed or neglected, without good cause, to provide regular and substantial support for
the minor for a period of 2 years or more before the filing of the petition.” The court could
properly conclude that respondent-mother’s contribution did not constitute “regular and
substantial” support for the minor. However, respondent-mother argues that she is excused
under the statute from providing financial support because she lacked the ability to provide such
support due to her incarceration and unemployment. A parent’s incarceration does not excuse
them from their obligation to provide support. See In re Caldwell, 228 Mich App 116, 121; 576
NW2d 724 (1998). However, the evidence showed that respondent-mother had a very limited
income because of her incarcerations and sporadic employment. There was no evidence that
respondent-mother had any source of funds to contribute towards the child’s support. Because
she was unable to provide regular and substantial support, the first prong for termination under
MCL 712A.19b(3)(f) could not be established with regard to respondent-mother. Thus, the trial
court clearly erred when it terminated respondent-mother’s parental rights under MCL
712A.19b(3)(f). However, this error was harmless in light of the evidence supporting the other
statutory grounds cited by the court in support of termination of respondent-mother’s parental
rights. In re Powers Minors, 244 Mich App 111, 118; 624 NW2d 472 (2000).
The court also terminated both respondents’ parental rights under MCL 712A.19b(3)(g),
which requires clear and convincing evidence that the parent, without regard to intent, fails to
provide proper care or custody for the child and there is no reasonable expectation that the parent
would be able to provide proper care and custody within a reasonable time considering the
child’s age. The court did not clearly err when it terminated respondent-mother’s parental rights
under MCL 712A.19b(3)(g) where the evidence showed that, as of the best interests hearing,
respondent-mother had no housing, no employment, and had failed to establish that she could
maintain sobriety outside of prison.2
In considering termination of respondent-father’s parental rights under MCL
712A.19b(3)(g), the court conceded that respondent-father had successfully demonstrated his
rehabilitation by stopping his heroin use, obtaining employment, and paying child support.
However, the court concluded that respondent-father could not provide proper custody and care
for the child where his employment took him away from home for extended periods and he
2
In terminating respondent-mother’s parental rights, the court also relied upon MCL
712A.19b(3)(j), which requires clear and convincing evidence that there is a reasonable
likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if
returned to the home of the parent. The court was concerned that respondent-mother had failed
to establish that she was drug-free. Although she claimed not to have used drugs since May
2006, she had been incarcerated from May 2006 until a few weeks before the best interests
hearing. The evaluator who performed respondent-mother’s psychological evaluation found that
respondent-mother was likely to engage in risk-taking behavior and return to her past conduct.
In light of this evidence the trial court did not clearly err when it terminated respondent-mother’s
parental rights under MCL 712A.19b(3)(j).
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planned to leave the child with his brother and sister-in-law while on his frequent and extended
out-of-town job assignments. The court conceded that, in certain circumstances, respondentfather’s plan would be acceptable but not in the instant case where the child had seen respondentfather only sporadically since she was four months old and had never met her paternal aunt and
uncle. In light of the facts and the court’s reasoning, the court did not clearly err when it
terminated respondent-father’s parental rights under this section.
Respondents also contend that termination was contrary to the child’s best interests.
Where there are statutory grounds for termination of parental rights, MCL 712A.19b(5) provides
that the court must order termination “unless the court finds that termination of parental rights to
the child is clearly not in the child’s best interests.” In re Trejo, 462 Mich 341, 351; 612 NW2d
407 (2000). In light of the evidence showing that the minor child, three and a-half years old at
the time of the termination trial, had limited contact or communication with respondents during
the three years before the trial and did not recognize respondents as her parents, the trial court
did not clearly err in finding that termination of both respondents’ parental rights was not
contrary to the child’s best interests.
Affirmed.
/s/ Christopher M. Murray
/s/ Richard A. Bandstra
/s/ Karen M. Fort Hood
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