IN RE DONALD TROY JUDD LEE WATKINS MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DONALD TROY JUDD LEE
WATKINS, Minor.
DAVID SAXMAN and TERESA SAXMAN,
UNPUBLISHED
October 20, 2009
Petitioners-Appellees,
v
No. 292330
Eaton Circuit Court
Family Division
LC No. 08-017172-NA
TIMOTHY LEE WATKINS,
Respondent-Appellant.
Before: Fort Hood, P.J., and Sawyer and Donofrio, JJ.
PER CURIAM.
Respondent appeals as of right from a circuit court order terminating his parental rights to
the minor child pursuant to MCL 712A.19b(3)(f). We affirm. This appeal has been decided
without oral argument pursuant to MCR 7.214(E).
The family division of the circuit court may order termination at the initial 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 introduced at the trial or dispositional hearing 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); In re Utrera, 281 Mich App 1, 16-17; 761 NW2d 253 (2008).
Once the court finds a ground for termination, it shall order termination if doing so is in the
child’s best interests. MCL 712A.19b(5). On appeal, the court’s finding that at least one
statutory ground for termination has been proven by clear and convincing evidence and the
court’s decision regarding the child’s best interests are both reviewed for clear error. In re Trejo
Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000). “A finding of fact is clearly erroneous
if the reviewing court has a definite and firm conviction that a mistake has been committed,
giving due regard to the trial court’s special opportunity to observe the witnesses.” In re BZ, 264
Mich App 286, 296-297; 690 NW2d 505 (2004).
The circuit court terminated respondent’s parental rights under § 19b(3)(f). That statute
permits the court to order termination under the following circumstances:
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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.
(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.
The petitioners must prove both subsections (i) and (ii) by clear and convincing evidence
before termination can be ordered. In re ALZ, 247 Mich App 264, 272; 636 NW2d 284 (2001).
The circuit court did not clearly err in finding that § 19b(3)(f)(i) had been proven by clear
and convincing evidence. Respondent was unemployed and received monthly disability benefits
of $1,029. While respondent did not always have any money left over each month after meeting
his own needs and wants, he conceded that he had sufficient funds to pay something toward the
child’s support every month. He had voluntarily paid petitioners $300 between 1998 and 2004
and had paid nothing thereafter. Such evidence clearly and convincingly showed that respondent
had the ability to assist in supporting the child and had not provided regular and substantial
support during the relevant two-year period.
The court also did not clearly err in finding that respondent did not have good cause for
his failure to provide support. Good cause under § 19b(3)(f) means “a legally sufficient or
substantial reason.” Utrera, supra at 22. The fact that petitioners did not seek support is not
good cause because the obligation is on the parent to support his unemancipated minor child.
MCL 722.3(1); Borowsky v Borowsky, 273 Mich App 666, 672-673; 733 NW2d 71 (2007).
Further, the fact that respondent was unable to get the court to “take charge of sending money”
also does not establish good cause. Because there was no evidence that a support order had been
entered against respondent, there was nothing for the court to enforce, see the Support and
Parenting Time Enforcement Act, MCL 552.601 et seq., and no basis for court involvement.
Finally, respondent asserts as good cause the fact that he asked the Social Security
Administration (SSA) to withhold a portion of his disability benefits and send it to the child, but
petitioners refused to accept it. The court struck as hearsay respondent’s testimony that he was
told by the SSA that petitioners would not accept his money and considered only the testimony
that respondent had been unable to get the SSA to assist him in paying support. The court did
not clearly err in finding that this did not establish good cause. The only reason respondent
attempted to arrange for some sort of income withholding rather than send money directly to
petitioners was because he did not trust petitioners to spend the money for the boy’s support, yet
he was unable to say why he did not trust petitioners or to explain how using the SSA as an
intermediary would protect the child’s right to the benefit of the funds. Therefore, the circuit
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court did not clearly err in finding that § 19b(3)(f)(i) had been proven by clear and convincing
evidence.
The circuit court did not clearly err in finding that § 19b(3)(f)(ii) had been proven by
clear and convincing evidence. Respondent had last visited his son in 2003. Although
respondent was allegedly unable to visit in person because of health reasons, he did not maintain
any other means of contact or communication with his son, with the last call being placed in
April 2006, and the child no longer recognized respondent. Respondent attributed his failure to
maintain contact during the past two years to having his earlier attempts at contact thwarted by
petitioners. However, because respondent had a legally enforceable right to maintain a
relationship with his son by virtue of an order granting visitation and could have sought relief
from the court if he believed that petitioners were interfering with that right, petitioners’ alleged
interference did not prevent respondent from having regular and substantial contact or
communication with the child. In re SMNE, 264 Mich App 49, 51; 689 NW2d 235 (2004).
Therefore, the circuit court did not clearly err in finding that respondent had the ability to contact
or communicate with the child and had regularly and substantially failed or neglected to do so
without good cause for the relevant two-year period.
Finally, the circuit court did not clearly err in finding that termination was in the child’s
best interests, given that the child had no memory of respondent and stated that he had no interest
in having any sort of relationship with him. While we do not agree with the circuit court’s
decision to try to resolve this issue by reference to each of the best interests factors set forth in
the Child Custody Act, MCL 722.23, see In re JS & SM, 231 Mich App 92, 101-102 n 2; 585
NW2d 326 (1998), overruled in part on other grounds Trejo, supra at 353, we cannot find that
the court clearly erred in finding that petitioners had the greater disposition to meet the child’s
emotional and material needs given respondent’s lack of significant involvement in the child’s
life. Further, because the court “need not give equal weight to all the factors, but may consider
the relative weight of the factors as appropriate to the circumstances,” Sinicropi v Mazurek, 273
Mich App 149, 184; 729 NW2d 256 (2006), the court did not err in giving greater weight to the
child’s reasonable preference to remain with petitioners.
Affirmed.
/s/ Karen M. Fort Hood
/s/ David H. Sawyer
/s/ Pat M. Donofrio
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