IN RE AIRIANA RAE PUMFREY MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of AIRIANA RAE PUMFREY,
Minor.
CHARLES WHITE and JEANNA WHITE,
UNPUBLISHED
May 20, 2008
Petitioners-Appellees,
v
No. 281117
Cass Circuit Court
Family Division
LC No. 07-000044-NA
DENNIS PUMFREY,
Respondent-Appellant,
and
FAWN WHITE,
Respondent.
Before: O’Connell, P.J., and Borrello and Gleicher, JJ.
GLEICHER, J. (dissenting).
I respectfully dissent. In my view, the circuit court improperly terminated respondent’s
parental rights.
I. Background Facts and Proceedings
Respondent and Fawn White are the parents of ARP, who was born in 2001. Respondent
and Fawn never married; respondent acknowledged paternity a few days after ARP’s birth.
Fawn did not appeal the circuit court’s termination of her parental rights, and thus is not a party
to this proceeding.
Respondent lived with Fawn and ARP for a short time after ARP’s birth, but moved out
before ARP’s first birthday. After her parents’ separation, ARP resided with Fawn. Petitioners
Charles and Jeanna White, Fawn’s father and stepmother, frequently cared for ARP for days or
weeks at a time, as did respondent’s parents.
In 2003, Fawn left ARP in petitioners’ custody, and moved to North Carolina. Fawn
provided petitioners with a six-month power of attorney, which she voluntarily renewed at least
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twice. In February 2004, after Fawn failed to renew an expired power of attorney, petitioners
filed a guardianship petition. Respondent appeared at the initial guardianship hearing and
objected to petitioners’ appointment as ARP’s guardians. The circuit court appointed petitioners
as ARP’s temporary guardians, and scheduled a contested hearing for May 26, 2004.
ARP celebrated her third birthday on April 28, 2004. Respondent attended her birthday
party, brought gifts, and stayed for three or four hours. Respondent did not attend the contested
hearing conducted on May 26, 2004, and the circuit court appointed petitioners as ARP’s full
guardians. The order appointing petitioners is not part of the lower court record. The parties
agree, however, that it did not contain a requirement that respondent pay child support, and
petitioners never requested that respondent contribute to ARP’s support.
The testimony at the most recent proceedings in 2007 agreed that after petitioners’
appointment as ARP’s guardians in 2004, they made a “conscious decision” to deny respondent
any opportunity to visit ARP. Charles White testified that he “felt it in [ARP]’s best interest …
to not allow that contact,” and admitted that he “thwarted” respondent’s efforts at visitation.
Within two weeks of petitioners’ appointment as ARP’s guardians, respondent appeared at their
home and asked to visit his daughter. He denied having received notice of the May 2004
guardianship hearing. Charles White told respondent that visitation “was not established in the
guardianship,” and that “[i]f he wanted visitation [rights], he had to petition the court.”
Despite petitioners’ openly expressed hostility, respondent attempted to contact his
daughter by repeatedly calling petitioners’ home. Charles White admitted that petitioners
utilized caller ID to screen and refuse respondent’s calls, explaining, “I told Dennis earlier once
… that, visitation, [he] had to petition the court, the visitation rights would be established at that
point in time. And I saw no sense of going through the same argument every time.” Respondent
testified that he could not afford an attorney in 2004, but subsequently obtained gainful
employment. In June 2006, respondent attempted to visit ARP at petitioners’ home. According
to respondent, he knocked on the door and observed Jeanna White “escort my daughter into the
other room,” but no one answered the door. Petitioners admitted that they allowed ARP to speak
to Fawn on several occasions when she called.
In March 2007, petitioners filed a petition seeking termination of respondent’s parental
rights pursuant to MCL 712A.19b(3)(f)(i) and (ii), which provide as follows:
(f)
The child has a guardian under the estates and protected
individuals code, 1998 PA 386, MCL 700.1101 to 700.8102, and both of the
following have occurred:
(i)
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 or, if a support order has been entered, has failed to substantially
comply with the order for a period of 2 years or more before the filing of the
petition.
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(ii)
The parent, having the ability to visit, contact, or communicate
with the minor, has regularly and substantially failed or neglected, without good
cause, to do so for a period of 2 years or more before the filing of the petition.
Respondent contested jurisdiction, and in July 2007 the circuit court conducted a jury
trial. The jury found that the circuit court had jurisdiction over ARP pursuant to MCL
712A.2(b)(5), the statutory ground alleged in the petition.
On September 6, 2007, the circuit court commenced a termination hearing. At the
conclusion of the hearing, the court found that respondent failed to attend any of the annual
guardianship review hearings, and never petitioned for visitation. Based on respondent’s failures
to pay any child support and to make “regular and substantial visits,” the circuit court held that
the statutory ground for termination in subsection 19b(3)(f) had been proven by clear and
convincing evidence. The court additionally observed that “[ARP] needs permanency,” and that
“permanency can only be provided at this time with allowing [petitioners] to proceed with
adoption.”
II. Governing Legal Principles
In Stanley v Illinois, 405 US 645, 651; 92 S Ct 1208; 31 L Ed 2d 551 (1972), the United
States Supreme Court reaffirmed and emphasized the constitutionally protected rights of natural
parents: “It is plain that the interest of a parent in the companionship, care, custody, and
management of his or her children ‘come(s) to this Court with a momentum for respect lacking
when appeal is made to liberties which derive merely from shifting economic arrangements.’”
(Citation omitted). The Supreme Court held in Stanley that the Fourteenth Amendment’s Due
Process Clause required a parental fitness hearing before a state could constitutionally deprive a
parent of parental rights. Id. at 657-658.
Subsequently, in Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599
(1982), the United States Supreme Court addressed the constitutionally required standard of
proof in parental rights termination cases. The Supreme Court’s analysis began with the
observation that standards of proof “are shaped by the risk of error inherent in the truth-finding
process . . . .” Id. at 757. In parental rights termination proceedings, the Supreme Court
determined, “the private interest affected is commanding; the risk of error from using a
preponderance standard is substantial; and the countervailing governmental interest favoring that
standard is comparatively slight.” Id. at 758. Because a parent facing the termination of his or
her parental rights risks the loss of a fundamental liberty interest, the Supreme Court held that a
court’s termination decision must rest on at least clear and convincing evidence. Id. at 768-770.
The clear and convincing evidence standard is “the most demanding standard applied in
civil cases.” In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995). Our Supreme Court has
described clear and convincing evidence as proof that
produce(s) in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established, evidence so clear, direct and weighty
and convincing as to enable (the factfinder) to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue. [Id. (internal quotation
omitted).]
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Petitioners sought the termination of respondent’s parental rights solely pursuant to MCL
712A.19b(3)(f)(i) and (ii). Petitioners therefore bore the burden of proving respondent’s
unfitness by clear and convincing evidence. In my view, they failed to do so.
III. Standard of Review
To the extent that this case presents an issue of statutory interpretation, this Court applies
de novo review. People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003). We review the
circuit court’s factual findings for clear error. In re ALZ, 247 Mich App 264, 271; 636 NW2d
284 (2001). A factual finding is clearly erroneous if, although there is evidence to support it, we
are left with a definite and firm conviction that a mistake has been committed. Id. at 271-272.
IV. Analysis
The asserted ground for termination of respondent’s parental rights, MCL
712A.19b(3)(f), requires proof of two separate facts: that respondent “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,” subsection (f)(i), and that respondent, “having the
ability to visit, contact, or communicate with the minor, has regularly and substantially failed or
neglected, without good cause, to do so for a period of 2 years or more before the filing of the
petition,” subsection (f)(ii). As discussed above, proof of these two facts must be clear and
convincing to justify the termination of parental rights.
In my view, the record lacks clear and convincing evidence that respondent had the
ability to visit, contact or communicate with his daughter. Petitioners deliberately denied
respondent any opportunity to visit or communicate with ARP. But the record reveals no legal
or factual basis for petitioners’ decision to separate respondent from his child. In my judgment,
the circuit court clearly erred by endorsing petitioners’ position that respondent had to obtain a
court order before he could visit his child, particularly in the absence of actual evidence to this
effect. The circuit court compounded this error by sanctioning petitioners’ improper conduct as
the basis for terminating respondent’s parental rights.
The majority and the circuit court assert that respondent could have petitioned for the
right to visit his daughter, even though nothing in the record supports the proposition that
petitioners properly denied him visitation in the first place.1 According to this reasoning, the
appropriate penalty for respondent’s failure to do something that he should never have been
forced to do is to forever deprive him of a fundamental right.2
1
The guardianship order is not within the record provided to this Court. According to MCL
700.5204(5), when a court appoints a guardian it “may at any time order the minor ward’s
parents to pay reasonable support and order reasonable parenting time and contact of the minor
ward with his or her parents.”
2
In Stanley, supra at 651, the United States Supreme Court observed that “[t]he private interest
… of a man in the children he has sired and raised, undeniably warrants deference and, absent a
powerful countervailing interest, protection.”
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This Court addressed a similar situation In re ALZ, supra, and I find the majority’s effort
to distinguish that case wholly unpersuasive. The respondent in ALZ had no contact with his
child for almost four years because the petitioner mother instructed him to “leave them alone or
stay out of their lives.” Id. at 266. In December 1998, the respondent wrote to the mother and
acknowledged that he had “not been in [ALZ’s] life for the past four years,” but requested an
opportunity to get to know his daughter, which the mother refused. Id. at 266-267. In February
1999, the respondent formally commenced proceedings to establish his paternity and sought
parenting time. Id. at 268. The mother and her new husband responded by petitioning for
termination of the respondent’s parental rights based on his failure to support or contact the child
for a period of two years or more, and requesting a stepparent adoption. Id. The family court
refused to permit the adoption, finding that “the mother’s position refusing contact any any (sic)
reintegration plan, resulted in his inability to have contact with the child.” Id. at 271. This Court
affirmed, explaining,
The family court concluded that respondent did not have the ability to
visit, contact, or communicate with A.L.Z. because of petitioner mother’s refusal
to allow respondent to establish contact with the child. Upon review of the
record, we find no error in the lower court’s conclusion on this issue. [Id. at 273.]
The majority attempts to distinguish In re ALZ because in that case, the “respondent’s
paternity had not been established, so ‘he was effectively a nonparent’ and did not have a legal
right to visit or communicate with the child and could not seek court intervention without first
establishing paternity.” As this Court pointed out in ALZ, however, the respondent did not seek
an order of filiation during the first 3-1/2 years that the petitioners denied him visitation with his
daughter, but waited to establish paternity until the child had reached six years of age.
Nevertheless, this Court affirmed the circuit court’s determination that the respondent’s
December 1998 letter and February 1999 filing of a family court action for paternity and
visitation “constituted ongoing requests for contact with A.L.Z., but that petitioner mother’s
resistance to these requests resulted in respondent’s inability to contact the child . . . .” Id. at
274.
Obviously, the respondent in ALZ could have established paternity sooner than he did.
But his failure to take legal action for the first 3-1/2 years of his daughter’s life did not result in
termination of his parental rights only because ALZ’s mother prevented him from visiting his
child. In my view, the same analysis should apply here. I would hold that the circuit court
clearly erred when it construed the statutory terms “ability to visit, contact, or communicate” to
include respondent’s potential ability to interact with his daughter, conditioned on a court
appearance and a court order. I would construe the statute to require that a parent possess an
actual ability to visit, unimpaired by the existence of a barrier improperly erected by a third
party. In my view, clear and convincing evidence of parental unfitness requires more than a
showing that a parent failed to hire an attorney and go to court to vindicate an improperly denied
right to visit his child.
The instant record contains clear, convincing and unrebutted evidence that respondent did
not have the ability to visit, contact or communicate with his daughter because petitioners made
it their mission to deprive him of that ability. I additionally reject the majority’s facile
suggestion that respondent should have written letters to his daughter. Given petitioners’ attitude
toward respondent and their abject unwillingness to allow him to merely speak to ARP on the
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telephone, it is a virtual certainty that any letters would not have found their way to his four- or
five-year-old child.
“The fundamental liberty interest of natural parents in the care, custody, and management
of their child does not evaporate simply because they have not been model parents or have lost
temporary custody of their child to the State. Even when blood relationships are strained,
parents retain a vital interest in preventing the irretrievable destruction of their family life.”
Santosky, supra at 753. Respondent should have been more proactive, and probably should have
tried harder to assert his right to visit his daughter. His faults, however, pale in comparison to
those generally resulting in the termination of parental rights. In the vast majority of the
termination cases considered by this Court, parents are afforded multiple opportunities to
improve parenting skills before a circuit court deprives them of their rights, even when the
parents have abused or otherwise harmfully neglected their children. Here, respondent tried to
parent, and no record evidence exists tending to support either his unfitness while parenting
ARP, or that he would parent badly if given an opportunity. Because the circuit court allowed
the calculated misconduct of others to serve as a driving factor in extinguishing respondent’s
constitutional rights, I would reverse.
/s/ Elizabeth L. Gleicher
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