IN RE THOMPSON MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In re JAVONTE THOMPSON and JA’COREY
THOMPSON, Minors.
_________________________________________
UNPUBLISHED
April 18, 1997
DEPARTMENT OF SOCIAL SERVICES,
Petitioner-Appellee,
v
No. 195790
Kalamazoo Juvenile Court
LC No. 96-000011-NA
JERMAINE THOMPSON,
Respondent-Appellant,
and
CRYSTAL ROBINSON,
Respondent.
DEPARTMENT OF SOCIAL SERVICES,
Petitioner-Appellee,
v
No. 195830
Kalamazoo Juvenile Court
LC No. 96-000011-NA
CRYSTAL ROBINSON,
Respondent-Appellant,
and
JERMAINE THOMPSON,
Respondent.
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Before: Hoekstra, P.J., and Murphy and Smolenski, JJ.
PER CURIAM.
In docket number 195790 of this consolidated appeal, respondent Jermaine Thompson appeals
as of right the termination of his parental rights to Javonte Thompson and Ja’Corey Thompson pursuant
to MCL 712A.19b(3)(b)(i) and (ii); MSA 27.3178(598.19b)(3)(b)(i) and (ii) (parent causes or fails to
prevent physical injury). In docket number 195830, respondent Crystal Robinson appeals as of right
the termination of her parental rights to the same children on the same grounds. We affirm.
Respondent Robinson argues that the 1995 amendments to MCR 5.974(D) remove all
discretion from the trial court and make termination a requirement, thereby violating the legislative policy
of reunification expressed in MCL 712A.1(2); MSA 27.3178(598.1)(2). However, in terminating
respondent Robinson’s parental rights, the record is clear that the trial court relied on the version of
MCR 5.974(D) that was in force before it was amended in 1995. Accordingly, we decline to consider
respondent Robinson’s argument. Moreover, even if we consider the argument, we conclude that it is
without merit. The staff comment to the MCR 5.974 explains that 1995 amendments were a response
to the enactment of 1994 PA 264, which, in part, amended MCL 712A.19b; MSA 27.3178(598.19b)
effective January 1, 1995, by adding the following subsection:
(5) If the court finds that there are grounds for termination of parental rights, the
court shall order termination of parental rights and order that additional efforts for
reunification of the child with the parent shall not be made, unless the court finds that
termination of parental rights to the child is clearly not in the child’s best interest. [MCL
712A.19b(5); MSA 27.3178(598.19b)(5).]
In In re Hall-Smith, ___ Mich App ___; ___ NW2d ___ (Docket No. 195833, issued
3/25/97), this Court stated as follows concerning the enactment of § 19b(5):
[U]se of the term “shall” rather than “may” indicates a mandatory rather than
discretionary action.
Given the Legislature’s use of the words “shall” and “unless” in the above
provision, we interpret the above statute to now create a mandatory presumption which
can only be rebutted by a showing that termination is clearly not in the child’s best
interest. If no such showing is made and a statutory ground for termination has been
established, we believe that the trial court is without discretion and must terminate
parental rights. Accordingly, we believe that a trial court’s now non-discretionary
decision regarding termination is reviewed in its entirety for clear error.
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Although the burden of proof remains with the petitioner to show that a
statutory ground for termination has been met by clear and convincing evidence, MCR
5.974(A)(3) and (F)(3), we believe that the burden of going forward with evidence that
termination is clearly not in a child’s best interests rests with the respondent. In In re
Miller, 433 Mich 331, 345; 445 NW2d 161 (1989), our Supreme Court discussed a
parent’s burden of going forward with evidence that they would be able to reestablish a
proper home for the child as discussed in then 1972 PA 59, § 19a(f), the statute under
which termination was sought. In that case, the Court made the following distinction
between the burden of proof and the burden of going forward:
“Although the burden of proof is on the party seeking to terminate parental
rights, the burden of going forward with the evidence is on the parent or parents. A
parent who fails to produce any evidence risks an adverse ruling on the evidence
presented, but one who produces some indication that the family situation has improved
has met the burden of going forward. Meeting the burden of production, however,
does not mean that the parent has necessarily prevailed.” [citations omitted.]
Similarly, we believe that once a statutory ground for termination has been met by clear
and convincing evidence, the language of MCL 712A.19b(5); MSA
27.3178(598.19b)(5) requires a parent to put forth at least some evidence that
termination is clearly not in the child’s best interest. Absent any evidence addressing
this issue by the parent, termination of parental rights is mandatory.
Accordingly, contrary to respondent Robinson’s argument, by enacting MCL 712A.19b(5);
MSA 27.3178(598.19b)(5), the Legislature has signaled its intention to forego additional efforts at
family reunification and to make termination of parental rights mandatory in the circumstances outlined in
Hall-Smith.
Next, respondent Robinson argues that the trial court’s findings of fact with respect to the
grounds for termination were without factual support. We disagree. Evidence was introduced
indicating that respondent Robinson had herself physically abused Javonte, and that she hid Javonte and
failed to seek medical treatment for his many injuries to protect herself and respondent Thompson.
Thus, clear and convincing evidence supporting the statutory ground for termination was presented. We
assume that respondent Robinson put forth at least some evidence indicating that termination was not
clearly in the best interests of the children where the trial court noted that respondent Robinson’s mother
had given testimony about “the outward appearances of love and nurturing and support exhibited by her
daughter . . . .” We further assume that the production of this evidence precluded mandatory
termination of respondent Robinson’s parental rights. Hall-Smith, supra. However, despite this
evidence, the trial court found that respondent Robinson’s apparent inability to make independent
decisions about the care and protection of the children was not likely to change in the foreseeable future
Given Javonte’s living situation and the severity and history of his injuries, we conclude that this finding
was not clearly erroneous. Id. See also In re Conley, 216 Mich App 41, 42; 549 NW2d 353 (1996).
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We find no abuse of discretion in the court’s decision to terminate respondent Robinson’s parental
rights. Hall-Smith, supra; Conley, supra at 44-45.
Finally, respondent Thompson argues that the trial court’s findings of fact with respect to the
grounds for termination were clearly erroneous. Specifically, respondent Thompson contends that there
was no direct evidence that he was responsible for Javonte’s injuries or that he was aware of the
seriousness of Javonte’s injuries. We disagree. Again, clear and convincing evidence of the statutory
grounds for termination was presented. A police officer testified that respondent father stated that he
was responsible for disciplining the children, which included hitting the children with his hand or a belt,
that a few nights before the police took Javonte he had beat Javonte with a belt while he was
intoxicated, and that he did not seek medical treatment for Javonte’s injuries because he was afraid that
he and respondent Robinson would get into trouble. Respondent Robinson testified that during this
same time period she observed respondent Thompson hit Javonte with a belt in the middle of the night,
and that the next morning Javonte was bruised and crying. Contrary to respondent Thompson’s
assertion, respondent Robinson’s testimony concerning her observations of his actions was not
inadmissible hearsay. See MRE 801. Accordingly, we conclude that the trial court’s findings that
respondent Thompson both caused and failed to prevent Javonte’s injuries were not clearly erroneous.
Because respondent Thompson failed to put forth evidence from which the trial court could conclude
that termination was clearly not in the best interests of the children, the trial court’s now-mandatory
decision to terminate respondent Thompson’s parental rights complied with the requirements of §
19b(5), and we find no clear error in that decision. Hall-Smith, supra.
Affirmed.
/s/ Joel P. Hoekstra
/s/ William B. Murphy
/s/ Michael R. Smolenski
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