IN RE OLIVE/METTS MINORS (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
June 5, 2012
9:10 a.m.
In the Matter of OLIVE/METTS MINORS.
No. 306279
Wayne Circuit Court
Family Division
LC No. 07-473724-NA
Advance Sheets Version
Before: K. F. KELLY, P.J., and WILDER and BOONSTRA, JJ.
PER CURIAM.
Respondent, W. Metts, appeals as of right a circuit court order terminating her parental
rights to her minor children pursuant to MCL 712A.19b(3)(b)(i), (b)(ii), (c)(i), (c)(ii), (g), (j), and
(k)(iii). We affirm the trial court’s order with respect to the minors RO, AM1, and AM2. With
respect to the minor twins, DM1 and DM2, we affirm the portion of the circuit court’s order
determining that at least one statutory ground supported termination, but vacate the court’s bestinterest analysis and remand for further consideration of that issue.
I. BASIC FACTS
Respondent is the mother AM1, RO, AM2, and the twins. The twins are of different
paternity than the other children. The trial court first acquired jurisdiction over the two eldest
children in 2007, following a Department of Human Services (DHS) petition for temporary
custody alleging that RO had been “found poorly cared for, diapers not changed,” and that “the
mother threatened to whoop the baby.” The petition further alleged that respondent was
homeless, the whereabouts of respondent’s only other child at the time, a girl, AM1, were
unknown, and no suitable relatives were available for placement. At the preliminary hearing,
respondent “made admissions . . . sufficient for the court to take temporary jurisdiction of the
children . . . based on evidence of improper supervision and environmental neglect.” The court
placed the children in foster care and directed respondent “to begin anger management and
counseling and have a psychological eval[uation]” pending the dispositional hearing.
The trial court entered the initial dispositional order in January 2008. The children were
continued in foster care, and respondent was directed to participate in services, including
parenting classes, individual counseling, anger management, and family counseling if
recommended; she was also directed to obtain suitable housing and a legal source of income.
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Respondent was granted “unsupervised weekend and overnight visits with goal of reunification
with mom within six weeks[.]”
Respondent made progress toward being reunited with her children. She secured suitable
housing and a job, and began attending parenting classes, anger-management classes, and
individual therapy. However, individual parenting time was terminated in June 2008 after
respondent failed to seek medical attention for the children and left the children with a person
who was not authorized to baby-sit them. Respondent was also arrested and lost her job and
home in May 2008, and began moving between various housing situations, including a shelter.
Respondent developed a pattern of verbal disputes followed by evictions from temporary
housing.
Respondent eventually secured somewhat more stable housing and cash and food
assistance. She also gave birth to her third child, a boy, AM2, in 2009. The court authorized the
DHS to return the two eldest children, AM1 and RO, to respondent with in-home services as
long as her housing situation was appropriate and “mother’s drug screens are negative.”
Respondent continued to work well with DHS, and the court terminated its jurisdiction in
October 2009. The twins were born in January 2010 and remained in respondent’s custody.
The DHS filed another petition for temporary custody in March 2011 following
allegations of physical child abuse by respondent and her mother. Respondent admitted to
pushing her eldest child, AM1, and scratching her face, and admitted that her mother, Kim Parks,
who had a criminal history of felony assault convictions, had been living with her and the
children for about three months. Respondent admitted that “she had observed Kim Parks being
physically aggressive towards the children” and that “she had noticed changes in her children’s
behaviors since Kim Parks came to reside in their home.”
Respondent pleaded no contest to the allegations against her and admitted physical child
abuse occurring on several occasions. She also admitted that she had been previously diagnosed
with “psychiatric issues” and was not currently taking her prescribed medication. Respondent
was evaluated by a counselor from the court’s Clinic for Child Study and was given a poor
prognosis concerning her ability to provide all five of her children a safe and stable environment.
At the dispositional hearing, the foster-care worker testified that respondent had been
preoccupied or overwhelmed during supervised visits, although the children had a warm
relationship with her. Multiple witnesses also testified about respondent’s continuing problem
with anger management, including several incidents of angry outbursts and at least one incident
in which DHS personnel had to call the police to remove respondent from her anger-management
class. At the time of the hearing, respondent was incarcerated for disturbing the peace as a result
of that incident. Testimony was also taken from multiple witnesses who indicated that the
children had begun to internalize and model her aggressive behavior.
Respondent indicated her willingness to continue to attend therapy and angermanagement classes and take psychiatric medication. The trial court found that several statutory
grounds for termination of parental rights had been demonstrated by clear and convincing
evidence and that termination of respondent’s parental rights was in the children’s best interests.
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II. STANDARD OF REVIEW
A court may terminate a respondent’s parental rights if one or more of the statutory
grounds for termination listed in MCL 712A.19b(3) have been proven by clear and convincing
evidence. Once a statutory ground for termination has been proven, the trial court must find that
termination is in the child’s best interests before it can terminate parental rights. MCL
712A.19b(5); MCR 3.977(E)(4). “We review for clear error both the court’s decision that a
ground for termination has been proven by clear and convincing evidence and, where
appropriate, the court’s decision regarding the child’s best interest” under MCL 712A.19b(5). In
re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000); see also MCR 3.977(K). A
trial court’s decision is clearly erroneous “[i]f although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been made.” In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989) (citations and
quotation marks omitted; alteration in original).
III. STATUTORY GROUNDS FOR TERMINATION
We conclude that the trial court did not clearly err by finding that grounds for termination
under MCL 712A.19b(3)(j) were established by clear and convincing legally admissible
evidence. See In re Utrera, 281 Mich App 1, 16-17; 761 NW2d 253 (2008); MCR 3.977(E)(3)
and (K). The evidence showed that respondent had been struggling with her anger-management
problem for years. She received treatment for that problem when the two eldest children were
previously court wards, and again in 2010 and early 2011. Nevertheless, she was unable to
control her anger, even after she resumed her anger-management classes in May 2011. She flew
into a rage during a June 2011 family visit and was arrested for disturbing the peace in August
2011 after an altercation with a teacher and the police. The evidence showed that the older
children were mimicking respondent’s behavior. Therefore, the trial court could properly find
that the children were reasonably likely to be harmed if returned to respondent’s home. Only
one statutory ground for termination need be established. In re CR, 250 Mich App 185, 207; 646
NW2d 506 (2002).
IV. BEST-INTEREST DETERMINATION
In deciding whether termination is in the child’s best interests, the court may consider the
child’s bond to the parent, see In re BZ, 264 Mich App 286, 301; 690 NW2d 505 (2004), the
parent’s parenting ability, see In re Jones, 286 Mich App 126, 129-130; 777 NW2d 728 (2009),
the child’s need for permanency, stability, and finality, see In re VanDalen, 293 Mich App 120,
141-142; 809 NW2d 412 (2011), and the advantages of a foster home over the parent’s home, In
re Foster, 285 Mich App 630, 634-635; 776 NW2d 415 (2009). “If the court finds that there are
grounds for termination of parental rights and that termination of parental rights is in the child’s
best interests, the court shall order termination of parental rights and order that additional efforts
for reunification of the child with the parent not be made.” MCL 712A.19b(5); see also MCR
3.977(E)(4).
We hold that the trial court has a duty to decide the best interests of each child
individually. See Foskett v Foskett, 247 Mich App 1, 11; 634 NW2d 363 (2001); see also In re
HRC, 286 Mich App 444, 457; 781 NW2d 105 (2009). Although “in most cases it will be in the
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best interests of each child to keep brothers and sisters together . . . , if keeping the children
together is contrary to the best interests of an individual child, the best interests of that child will
control.” Wiechmann v Wiechmann, 212 Mich App 436, 440; 538 NW2d 57 (1995); see also
Foskett, 247 Mich App at 11. While Foskett and Wiechmann were child custody disputes in
which the children’s best interests were analyzed under the framework of the Child Custody Act,
MCL 722.21 et seq., the same principle—that each child be treated as an individual—applies
with equal force in termination-of-parental-rights cases under the juvenile code, MCL 712A.1 et
seq. It is, therefore, incumbent on the trial court to view each child individually when
determining whether termination of parental rights is in that child’s best interests.
The evidence showed that respondent loved her children and that the three older children
loved her. The evidence also showed that respondent struggled to cope with five children, was
unable to control her temper to the detriment of the children, lacked a source of income, had lost
her home, and was in jail. Respondent failed to derive any lasting benefit from services
previously provided and there were no additional services that could be provided. We conclude
that the evidence supported the trial court’s determination that termination was in the best
interests of RO, AM1, and AM2.
However, because “a child’s placement with relatives weighs against termination under
MCL 712A.19a(6)(a),” the fact that a child is living with relatives when the case proceeds to
termination is a factor to be considered in determining whether termination is in the child’s best
interests. In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). Although the trial court may
terminate parental rights in lieu of placement with relatives if it finds that termination is in the
child’s best interests, In re IEM, 233 Mich App 438, 453; 592 NW2d 751 (1999), overruled on
other grounds by In re Morris, 491 Mich 81; 815 NW2d 62 (2012); In re McIntyre, 192 Mich
App 47, 52-53; 480 NW2d 293 (1991), the fact that the children are in the care of a relative at the
time of the termination hearing is an “explicit factor to consider in determining whether
termination was in the children’s best interests,” Mason, 486 Mich at 164. A trial court’s failure
to explicitly address whether termination is appropriate in light of the children’s placement with
relatives renders the factual record inadequate to make a best-interest determination and requires
reversal. Mason, 486 Mich at 163-165; In re Mays, 490 Mich 993, 994 (2012).
The trial court did not expressly address the fact that the two youngest children were
residing with a paternal relative. Because the trial court was required to consider the best
interests of each child individually and was required to explicitly address each child’s placement
with relatives at the time of the termination hearing if applicable, Mason, 486 Mich at 164;
Mays, 490 Mich at 994, we conclude that the trial court clearly erred by failing to do so.
Therefore, we vacate the trial court’s best-interest analysis with respect to the twins, and remand
this case to the trial court for further proceedings not inconsistent with this opinion.
Affirmed with respect to the minor children RO, AM1, and AM2. Affirmed in part,
vacated in part, and remanded for further proceedings with respect to the minor children DM1
and DM2. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Kurtis T. Wilder
/s/ Mark T. Boonstra
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