IN RE BRIANNA RENEE MALONE MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of BRIANNA RENEE MALONE,
Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
March 10, 2009
Petitioner-Appellee,
v
No. 287065
Kent Circuit Court
Family Division
LC No. 07-052379-NA
NICOLE ANNE MALONE,
Respondent-Appellant,
and
NORMAN ALLEN SCHULTZ,
Respondent.
Before: Jansen, P.J., and Borrello and Stephens, JJ
PER CURIAM.
Respondent appeals as of right the order terminating her parental rights to her minor child
under MCL 712A.19b(3)(c)(i), (g), (l), and (m). We affirm.
Respondent does not argue on appeal that petitioner failed to provide clear and
convincing evidence of a statutory ground to terminate her parental rights. Rather, she argues
that termination was clearly against the child’s best interests. We disagree and affirm. This
Court reviews for clear error the trial court’s decision regarding the child’s best interests. MCR
3.977(J); In re Trejo Minors, 462 Mich 341, 365; 612 NW2d 407 (2000).
Under the version of the statute in effect at the time when the termination order in this
case was entered, the trial court was required to find that termination was in the child’s best
interests before terminating respondent’s parental rights. MCL 712A.19b(5). In making its best
interests determination, the court should weigh all evidence available. See Trejo, supra at 354.
Brianna was removed from parental custody within days of her birth. Respondent’s
rights were terminated a year after the child was removed from parental custody. Respondent
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participated in a Parental Agency agreement relative to her older child, Sonia Jayde Schultz from
May 2006 until voluntary termination of the rights of both parents to that child on November
2006. A new agreement was entered into relative to Brianna after the entry of an Order of
Adjudication/Disposition was entered on November 8, 2007. The Kent County Prosecutor’s
Office filed a Supplemental Petition on May 14, 2008. That petition cited the removal of Sonia
as its statutory reason for termination and also cited several reasons for the termination of
respondent’s parental rights including; her inability to parent as a sole custodial parent, need for
90 more days of therapy, lack of a “stable period of employment,” her residential environment,
failure to establish independence in her life and parenting skill.
There was no contest as to the statutory basis for the termination in the three-day
termination hearing. Once the court made the finding that at least one statutory basis for
termination was established by clear and convincing evidence, it was compelled to terminate the
parental rights unless there was evidence that the termination was clearly not in the best interests
of the child. The court was not required to make best interests findings in accordance with the
factors in the Child Custody Act. In Re JS and SM, 231 Mich App 92, 102; 585 NW2d 326
(1998), rejected in part on other grounds by Trejo, supra at 353 n 10.
The court’s factual findings were supported by the record and established that termination
was in Brianna’s best interests. The court heard testimony from the full treatment team,
including respondent’s therapist and the Bethany Christian workers. The opinion noted that,
“This is not about Nicole Malone it is about Brianna Malone.” In its oral opinion, the court
relied heavily on the circumstances regarding the older removed child, Sonia. In particular, the
judge was concerned that respondent’s established pattern of choosing her relationship with the
adult male over the interests and safety of the child would continue. In explaining this concern,
the court cited to the manner in which Sonia had been treated. Specifically, the court noted that
despite acknowledging that Norman Schultz was responsible for abusing Sonia, respondent was
pregnant with his third child at the time of the hearing. Respondent had denied contact with
Schultz during the period that Brianna was in care. However, jail records revealed numerous
visits with him during that time. The court also cited respondent’s slow progress in counseling,
her lack of veracity and her failure to seek any independent housing as significant factors in the
termination decision. While the physical environment of respondent was acceptable and
respondent was making efforts to find employment, the court was concerned for the need for
permanent placement of the child. Each of these concerns is an appropriate consideration in
examining the best interests of the child. See In re BZ, 264 Mich App 286, 301; 690 NW2d 505
(2004).
The trial court did not clearly err when it held that termination of respondent’s rights was
in the child’s best interests.
Affirmed.
/s/ Kathleen Jansen
/s/ Stephen L. Borrello
/s/ Cynthia Diane Stephens
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