IN RE THEODORE JAMES BRANTMAN MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of THEODORE JAMES
BRANTMAN, Minor.
JAMES RONALD BRANTMAN and JULIE
MAY BRANTMAN,
UNPUBLISHED
April 10, 2008
Petitioners-Appellees,
v
No. 280402
Muskegon Circuit Court
Family Division
LC No. 2007-007209-AY
MICHELE MARIE BRANTMAN,
Respondent-Appellant.
Before: Zahra, P.J., and Whitbeck and Beckering, JJ.
PER CURIAM.
Respondent Michele Brantman appeals as of right from the trial court order terminating
her parental rights to the minor child, Theodore James Brantman (hereinafter “T.J.”).1 We
affirm.
I. Basic Facts And Procedural History
Petitioners James and Julie Brantman desired termination of Michele Brantman’s parental
rights to allow Julie Brantman to adopt the 13-year-old minor child, T.J. He was born in
September 1993, during the marriage of James Brantman to Michele Brantman. James
Brantman and Michele Brantman divorced in Kent County in February 1999 and shared T.J.’s
legal custody, but Michele Brantman was awarded physical custody of him until he reached the
age of 18.
While Michele Brantman had sole physical custody of T.J., James Brantman married
Julie Brantman (formerly, Julie Moore). Julie Brantman had divorced her husband in 1999 in
Leelanau County, and she was awarded physical custody of her two sons, who were three and
four years younger than T.J.
1
MCL 710.51(6) (petition for termination and stepparent adoption).
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In 2002, the Kent County Circuit Court changed T.J.’s physical custody to James
Brantman, and T.J. began residing full time with James and Julie Brantman. On a date in 2002
or 2003 not disclosed in the lower court record, Michele Brantman pleaded guilty to and was
convicted of attempting to solicit the murder of James Brantman. The trial court sentenced her
to five to 30 years in prison. Her earliest release date was August 2008, with a maximum release
date 30 years after her conviction, in 2033. At a time not revealed in the lower court record,
Michele Brantman was transferred to the Camp Valley Huron Correctional Center in Ypsilanti.
On January 5, 2005, James Brantman obtained an order granting him full legal and physical
custody of T.J.
James Brantman, Julie Brantman, T.J., and Julie’s two boys, resided in Muskegon
County. In February 2007, James and Julie Brantman petitioned the Muskegon County Circuit
Court for termination of Michele Brantman’s parental rights and Julie Brantman’s stepparent
adoption of T.J., alleging Michele’s failure to regularly and substantially support or visit T.J. for
two years before the filing of the petition, T.J.’s residence with James and Julie Brantman for 54
months, and the trauma to T.J. and destruction of the parent-child relationship caused by Michele
Brantman’s criminal act.
The lower court record contains a May 8, 2007 Proof of Service, pursuant to which James
and Julie Brantman served the Notice of Hearing for Termination of Parental Rights and
Stepparent Adoption on June 1, 2007, by ordinary mail on Michele Brantman at the Huron
Valley Correctional Facility. The lower court record also contains a proof of service dated
June 8, 2007, for the Order Requesting Prisoner Be Allowed to Participate in Court Proceedings
at the July 12, 2007 hearing.
Michele Brantman or her family retained attorney Rob German, and he attended the
June 1, 2007 hearing. He requested and obtained an adjournment until July 12, 2007, but
thereafter did not enter an appearance, file pleadings or motions, or attend the July 12, 2007
hearing. Neither German nor any other counsel represented Michele Brantman, but she
participated by speakerphone at the July 12, 2007 hearing. Testimony presented at the hearing
and contained in the lower court record revealed the following facts.
With regard to Michele Brantman’s visits, communication, or contact with T.J. during the
past two or more years, they last had face-to-face contact with one another at the Kent County
Jail in May 2003, when T.J. was nine years old. Michele Brantman notified the Friend of the
Court in writing in December 2003 that James Brantman was not facilitating her supervised
visits with T.J. as required, and he was not allowing T.J. to receive her letters and gifts, but no
further information is contained in the lower court record regarding whether Michele Brantman
communicated further with the Friend of the Court, whether the order allowing visits was
changed, when Michele Brantman was transferred to the Camp Valley Huron Correctional
Center in Ypsilanti, or how visits were to be accomplished there.
Michele Brantman testified to remaining in contact with T.J. by mail until March 20,
2006, and to receiving cards and pictures from T.J. at Christmas in 2004 and 2005, but she stated
that James Brantman’s attorney contacted the Michigan Department of Corrections in March
2006 demanding that further communication from her cease. James Brantman’s attorney also
contacted Michele Brantman by letter dated March 27, 2006, implying that if she continued to
communicate with T.J., he would request that her incarceration be extended. Michele Brantman
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testified that the Michigan Department of Corrections ordered her to cease communication with
T.J. until she obtained a court order stating that she could have communication. She obeyed that
order and did not write letters after March 20, 2006.
Michele Brantman testified that she attempted to telephone T.J. twice, to no avail, and
that her father had made repeated telephone calls during the last three years in an effort to
contact T.J., had attempted to see T.J., and still had the box of gifts for Christmas 2006 she had
sent for T.J. Her parents had not filed grandparents’ petitions because they had been involved
with her mother’s long-term illness until she passed away on June 14, 2007. Michele Brantman
stated that she had attempted many times to remain in contact with T.J. and that that she loved
him very much. She questioned the grounds on which James and Julie Brantman were seeking
to terminate her parental rights.
In his testimony, James Brantman admitted that Michele Brantman had communicated
with T.J. by mail since her incarceration, writing letters and sending pictures that did not degrade
himself or Julie Brantman, but which nevertheless caused T.J. trauma, and which in turn
disrupted their household. T.J. had received counseling for the anger and frustration he felt, and
the counselor supported stopping communication between Michele Brantman and T.J. T.J. had
not had problems since James Brantman took action to direct his attorney to stop the
communication, and James Brantman stated that he felt he was acting in T.J.’s best interests in
preventing contact between T.J. and Michele Brantman. He noted that T.J. desired to be adopted
by Julie Brantman, and the home study report confirmed that desire.
With regard to T.J.’s support during the two or more years before filing the petition,
James Brantman had been required to pay child support for T.J. under the 1999 Judgment of
Divorce, which was modified at a time not noted in the lower court record requiring Michele
Brantman to pay child support. By February 2007, Michele Brantman had incurred a child
support arrearage in excess of $6,000, which she paid in a lump sum by taking out a loan against
her education trust that she was required to repay in the future.
Michele Brantman testified that she had not received an opportunity to participate in the
hearing in 2005 pursuant to which James Brantman was granted T.J.’s sole physical and legal
custody. She stated that in the current proceeding she had received only a notice of hearing and
the request that prisoner participate in the proceeding by phone conference, and she had not
received the supplemental petition and affidavit, noting that this was true because all of her legal
mail was logged by the prison.
The trial court found that the primary consideration was the child’s best interests, and that
“although the arrearages have been paid, there has been no support paid for a period of two years
or more, and there has been no contact, physical contact for a period of two years or more . . . .”
It noted that Michele Brantman’s release one year hence in August 2008 was uncertain. The trial
court stated, “[T]he Court finds that the statutory basis for terminating the parental rights of
Michelle [sic] Brantman exists, and the Court will find that it is in the best interest of the child
that her parental rights be terminated.” The trial court later elaborated,
The Court will find actually both grounds, because I am not clear on the support
order. There’s been no support paid in the past two years and also she does have
some ability to pay support, and no current support has been paid. And also the
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Court finds the grounds adequately met for failure to substantially visit, contact,
or communicate with the child.
Julie Brantman testified regarding her desire to adopt T.J., and T.J. testified that he
wanted to be adopted. The trial court, therefore, ordered that the adoption proceed.
In July 2007, Michele Brantman filed a motion for rehearing, objecting to the trial court’s
decision on the ground that MCR 2.004(B)(2) had been violated by James and Julie Brantman’s
failure to serve her with the petition and filing proof of service of the same, and that MCR
2.004(E)(2) had been violated by failing to allow appointment of counsel to assure her access, as
an incarcerated party, to court.
In August 2007, the trial court issued a written opinion in response to Michele
Brantman’s motion for rehearing, finding that Michele Brantman was served with the petition
before the initial June 1, 2007 hearing date and had forwarded it to her family or attorney, and
that subsequent service and proof thereof was not necessary for the adjourned date. In addition,
the trial court found that Michele Brantman was represented by retained counsel at the June 1,
2007 hearing and that she did not request appointed counsel at either the June 1, 2007, or
July 12, 2007 hearings.
An order terminating Michele Brantman’s parental rights was entered on July 12, 2007.
Michele Brantman now appeals.
II. Statutory Grounds For Termination
A. Standard Of Review
A petitioner in an adoption proceeding must prove by clear and
convincing evidence that termination of parental rights is warranted. This Court
reviews the probate court’s findings of fact under the clearly erroneous standard.
A finding is clearly erroneous if; although there is evidence to support it, the
reviewing court is left with a definite and firm conviction that a mistake was
made.[2]
B. Analysis
The trial court did not clearly err in finding that the statutory ground for termination of
Michele Brantman’s parental rights3 was established by clear and convincing evidence. Michele
Brantman was incarcerated for five to 30 years for attempting to solicit the murder of T.J.’s
father, James Brantman.
2
In re Hill, 221 Mich App 683, 691-692; 562 NW2d 254 (1997).
3
MCL 710.51(6)(a) and (b).
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The applicable two-year statutory period commences on the filing date of the petition and
extends backwards from that date for a period of two years or more.4 Both MCL 710.51(6)(a)
and (b) describe the relevant statutory period as two years or more, and the inclusion of the
words “or more” indicates a legislative intent that circumstances beyond the applicable two-year
statutory period may be considered.5 Michele Brantman was incarcerated, but there is no
exception to the statutory requirements for an incarcerated parent.6
The evidence showed Michele Brantman failed to regularly and substantially support T.J.
for two years or more before James and Julie Brantman filed the petition for termination of her
parental rights. James and Julie Brantman were not required to prove Michele Brantman had the
current ability to financially support T.J. The trial court had previously entered a support order,
and Michele Brantman’s ability to pay had already been factored into that order.7 Although
Michele Brantman’s child support order was suspended after her incarceration, she had
accumulated an arrearage exceeding $6,000 during the time she had been under order to pay.
Her payment of the arrearage in a lump sum after the petition was filed did not constitute regular
or substantial support during the statutory period.
Although Michele Brantman had no physical contact with T.J. for four years because of
her incarceration, the evidence did not show that she regularly and substantially failed to
communicate with T.J. for two years or more. Michele Brantman stopped writing letters to T.J.
16 months before the termination hearing only after James Brantman took action with the
Michigan Department of Corrections to prevent further communication. Michele Brantman’s
letters, although not in any way improper, caused T.J. emotional distress. Although James
Brantman should not be allowed to refuse or prevent communication between Michele Brantman
and T.J., and then use lack of communication against the Michele Brantman in a petition for
stepparent adoption,8 a fact unique to this case was the nature of Michele Brantman’s crime. It
severely damaged her relationship with T.J., and communication from Michele Brantman caused
T.J. distress, thus necessitating James Brantman’s action to suspend Michele Brantman’s letters.
Given the nature of Michele Brantman’s crime and its impact on T.J., it was very unlikely that
the trial court would order communication reinstated. Therefore, although the trial court erred in
finding that Michele Brantman had failed to communicate with T.J. for a period of two years or
more, the error did not result in substantial injustice to Michele Brantman because
communication would not likely have been reinstated before the two-year statutory period had
elapsed.
4
Hill, supra at 689.
5
Id. at 692.
6
In re Caldwell, 228 Mich App 116, 120-121; 576 NW2d 724 (1998).
7
Id. at 122.
8
In re ALZ, 247 Mich App 264, 277; 636 NW2d 284 (2001).
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We conclude that the trial court did not clearly err in finding that statutory grounds for
termination of Michele Brantman’s parental rights were established by clear and convincing
evidence.
III. Best Interests Determination
A. Standard Of Review
Once a petitioner has established a statutory ground for termination by clear and
convincing evidence, the trial court shall order termination of parental rights, unless the trial
court finds from evidence on the whole record that termination is clearly not in the child’s best
interests.9 There is no specific burden on either party to present evidence of the children’s best
interests; rather, the trial court should weigh all evidence available.10 We review the trial court’s
decision regarding the child’s best interests for clear error.11
B. Analysis
We conclude that the trial court did not err in determining that termination of Michele
Brantman’s parental rights was in T.J.’s best interests.12 Michele Brantman’s noncustodial acts
such as letter writing caused T.J. distress. The trial court did not clearly err in determining that
T.J.’s best interests were served through adoption by his stepmother so that he would be
provided the presence of a legal parent if his father became unable to care for him. In addition,
the adoption study showed that the best interest factors in MCL 710.22(g) weighed in favor of
T.J.’s adoption by his stepmother.
IV. Special Notice Requirement
Michele Brantman argues that reversal is warranted for failure to comply with the special
notice requirements for incarcerated persons pursuant to MCR 2.004. Although the lower court
record did not contain proof of service of the petition upon Michele Brantman as required by
MCR 2.004(B)(2), and Michele Brantman stated that she did not receive a copy of the petition,
privately retained counsel appeared at the June 1, 2007 hearing on Michele Brantman’s behalf to
request adjournment with a copy of the petition in hand, thus clearly showing that service had
been effected upon Michele Brantman or her attorney.13
9
MCL 712A.19b(5); In re Trejo, 462 Mich 341, 350; 612 NW2d 407 (2000).
10
In re Trejo, supra at 354.
11
Id. at 356-357.
12
MCL 710.22(g); Hill, supra at 691.
13
MCR 3.802(A)(2).
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V. Appointment of Counsel For July 12, 2007 Hearing
When Michele Brantman’s counsel did not appear at the adjourned termination hearing
on July 12, 2007, the trial court did not inquire whether appointed counsel was necessary or
assess whether Michele Brantman was capable of representing herself, as was the purpose of
compliance with MCR 2.004(E)(2) and (3). However, MCR 2.004(F) states that the trial court
was authorized to grant termination of Michele Brantman’s parental rights as requested by James
Brantman even though it did not comply with the telephone call requirements of MCR
2.004(E)(2) and (3) if Michele Brantman actually participated in a telephone call, which she did.
Although the trial court possessed the discretion to sua sponte appoint counsel for
Michele Brantman, it was not required to do so.14 This Court reviews for an abuse of discretion
the trial court’s decision whether to appoint counsel for the nonconsenting, noncustodial parent
in a proceeding brought under MCL 710.51(6).15 An abuse of discretion has been found in
certain cases where the trial court failed to consider factors showing whether a party had the
ability to present a case properly without counsel, but this Court stated in In re Fernandez,16 that
it was not willing to create a rule requiring trial courts to, in all cases, consider sua sponte the
appointment of counsel in adoption proceedings involving termination of parental rights.
Michele Brantman did not comment on her counsel’s absence, request adjournment to
allow for retention of another attorney, request court-appointed counsel, indicate that she was not
able to represent herself, or express reluctance to proceed in propria persona. The issues of
Michele Brantman’s lack of contact with T.J. and her lack of support were factual and
uncomplicated, and the parties agreed on most key facts. There were no procedural
complexities. Therefore, we conclude that the trial court did not abuse its discretion in failing to
sua sponte inquire into Michele Brantman’s need for counsel or appoint counsel on her behalf.
Affirmed.
/s/ Brian K. Zahra
/s/ William C. Whitbeck
/s/ Jane M. Beckering
14
In re Sanchez, 422 Mich 758, 767-771; 375 NW2d 353 (1985).
15
Sanchez, supra at 771.
16
In re Fernandez, 155 Mich App 108, 112; 399 NW2d 459 (1986).
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