IN RE DUNCAN MINORS (Per Curiam Opinion)
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STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED May 15, 2012 In the Matter of DUNCAN, Minors. No. 306821 Ingham Circuit Court Family Division LC Nos. 10-001069-NA 10-001070-NA 10-001071-NA 11-000430-NA Before: FITZGERALD, P.J., and MURRAY and GLEICHER, JJ. PER CURIAM. Respondent O. Duncan appeals as of right from a circuit court order terminating his parental rights to the minor children pursuant to MCL 712A.19b(3)(g), (h), (j), and (n)(ii). We reverse and remand. Respondent and his wife have four children. The two older children were previously in a guardianship with their maternal grandmother. The third child was born in December 2008 and was also placed in his grandmother s care. Respondent was arrested for homicide in July 2009 and has been continuously incarcerated since then. The three older children returned to their mother for a brief period, but she lost custody again in June 2010, due in part to her continued drug use. The court acquired jurisdiction over the three older children in July 2010, and the children were again placed with their maternal grandmother. The fourth child was born during the period of temporary wardship and was also placed with the maternal grandmother. Petitioner later sought termination of parental rights because the mother was not able to overcome her drug problem, and respondent, who had been convicted of manslaughter, was serving a prison sentence of 5 to 22-1/2 years. The mother voluntarily released her parental rights, and the trial court terminated respondent s parental rights after a hearing. Respondent argues that the trial court erred in finding that each of the statutory grounds for termination was established by clear and convincing evidence. To order termination pursuant to a supplemental petition, the trial court must find by clear and convincing evidence that one or more facts alleged in the petition are true and establish a statutory basis for termination under § 19b(3). In re Trejo, 462 Mich 341, 350, 360; 612 NW2d 407 (2000); MCR 3.977(H)(3)(a). We review the trial court s findings for clear error. In re Trejo, 462 Mich at 356-357; MCR 3.977(K). A finding of fact is clearly erroneous if the reviewing court has a definite and firm -1- 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 trial court clearly erred in finding that § 19b(3)(g) was established by clear and convincing evidence. The trial court did not clearly err in finding that respondent failed to provide proper care or custody for his children. He was unable to care for his children due to his incarceration, and he left them with an unfit custodian without making arrangements to have another person care for the children. The trial court found that respondent would not be able to provide proper care and custody for the children within a reasonable time because of the length of time he will remain incarcerated. The trial court stated that although respondent had proposed alternative relative caretakers, we re looking at the parent to be able to provide that care and custody, not whether or not there might be somebody else that can do that for him. However, in In re Mason, 486 Mich 142, 160, 163; 782 NW2d 747 (2010), our Supreme Court held that [t]he mere present inability to personally care for one s children as a result of incarceration does not constitute grounds for termination of parental rights and that a respondent could fulfill his duty to provide proper care and custody in the future by voluntarily granting legal custody to his relatives during his remaining term of incarceration. Here, respondent was amenable to having the children remain with their grandmother and she agreed to continue caring for the children under a guardianship until respondent was released from prison. Although respondent had not actually taken steps to establish a limited guardianship with the grandmother, there was no evidence that he could not do so within a reasonable time. Therefore, the trial court clearly erred in finding that there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the children s ages. The trial court also clearly erred in finding that § 19b(3)(h) was established by clear and convincing evidence. That subsection contains the same elements as § 19b(3)(g), along with the added element that due to the parent s incarceration, the child will be deprived of a normal home for a period exceeding two years. In re Mason, 486 Mich at 161, 164-165. Given that the supplemental petition was filed in July 2011 and that respondent s early release date is in July 2014, the trial court could properly find that the children will be deprived of a normal home for a period exceeding two years due to respondent s incarceration. However, as with § 19b(3)(g), termination under § 19b(3)(h) also requires evidence that there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child s age. Because respondent and the children s grandmother were both amenable to a guardianship during the remainder of respondent s incarceration and there was no evidence that a guardianship could not be established within a reasonable time, the evidence did not support a finding that respondent would not be able to provide proper care and custody within a reasonable time considering the children s ages. Thus, the trial court erred in finding that termination was warranted under § 19b(3)(h). The trial court also clearly erred in finding that § 19b(3)(j) was established by clear and convincing evidence. The Supreme Court addressed this subsection in In re Mason, 486 Mich at 165, and held that a criminal history alone does not justify termination. The Court stated that termination solely because of a parent s past violence or crime is justified only under certain enumerated circumstances, including when the parent created an unreasonable risk of serious abuse or death of a child, if the parent was convicted of felony assault resulting in the injury of -2- one of his own children, or if the parent committed murder, attempted murder, or voluntary manslaughter of one of his own children. Id. The Court concluded that termination under § 19b(3)(j) was clearly erroneous in that case because no evidence showed that the children would be harmed if they lived with [the] respondent upon his release. Id. There was no evidence here that respondent had hurt a child. His criminal record included convictions for illegal possession of drugs and a gun, and for fatally shooting another person, but there was no evidence regarding the circumstances surrounding the prior offenses such that the court could reasonably find that respondent had kept drugs or firearms in the home, let alone in a place accessible to the children, or that he engaged in criminal conduct in the presence of the children. Therefore, the evidence did not support a finding that the children were reasonably likely to be harmed if placed in respondent s custody upon his release. Lastly, with respect to § 19b(3)(n)(ii), respondent does not dispute that manslaughter committed with a firearm involves an element of force or threat of force or that, due to his prior felony convictions, he was subject to sentencing as an habitual offender. But termination under § 19b(3)(n)(ii) also requires evidence that termination is in the child s best interests because continuing the parent-child relationship with the parent would be harmful to the child. The trial court found that maintenance of the parent-child relationship would be harmful to the children because respondent s poor decision-making created a risk of harm to the children. We agree that the nature of respondent s crimes makes him a poor role model for the children and that his recidivism indicates that the parent-child relationship may again be disrupted if respondent reoffends in the future. However, the trial court s finding that continuing the parent-child relationship would be harmful to the children cannot be reconciled with the fact that respondent was allowed to maintain a relationship with the children during the proceedings through letters and telephone calls. In fact, one goal of the parent/agency agreements was that respondent develop a close parent child bond with his child and they directed that he send his children age appropriate letters or call if possible. This indicates that maintenance of the parent-child relationship was deemed appropriate for, and not harmful to, the children, and there was no evidence that anything had changed at the time the supplemental petition was filed such that maintenance of the parent-child relationship had become harmful to the children. Therefore, we conclude that the trial court clearly erred in finding that § 19b(3)(n)(ii) was established by clear and convincing evidence. In sum, the trial court clearly erred in determining that each of the statutory grounds for termination was established by clear and convincing evidence. Accordingly, we reverse the trial court s order and remand for further proceedings. In light of our decision, it is unnecessary to determine whether the trial court properly evaluated the children s best interests under MCL 712A.19b(5). Reversed and remanded for further proceedings not inconsistent with this opinion. Jurisdiction is not retained. /s/ E. Thomas Fitzgerald /s/ Elizabeth L. Gleicher -3-
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