IN RE STERLING, TYLER, AND TAYLOR GERBIG MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of S. G., T. G., and T. G., Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
June 7, 2002
Petitioner-Appellee,
v
No. 233859
Iron Circuit Court
Family Division
LC No. 99-001012-NA
PHYLLIS DEYOUNG,
Respondent-Appellant.
Before: Owens, P.J., and Markey and Murray, JJ.
PER CURIAM.
Respondent appeals as of right from the trial court’s order terminating her parental rights
to the minor children under MCL 712A.19b(3)(g) and (j). We affirm.
I. Facts and Procedural History
Respondent is the biological mother of three minor children, ages fourteen and twelve
(the twelve-year olds are twins). The biological father of these minor children was Gerald
Gerbig, who past away on October 25, 1999. Respondent and Mr. Gerbig were divorced by the
entry of a November 12, 1992 judgment of divorce. The judgment of divorce awarded
respondent custody over the minor children, but on August 27, 1997, the Gogebic County Circuit
Court modified the judgment of divorce and awarded Mr. Gerbig physical custody of the minor
children with respondent receiving reasonable parenting time.
The minor children resided with Mr. Gerbig from August 27, 1997 until March 19, 1999,
when the Iron County Family Independence Agency (FIA) removed the minor children from the
custody of Mr. Gerbig and placed them in a foster home. A preliminary hearing was held on
March 19, 1999, at which time the trial court, inter alia, ordered the FIA to notify respondent of
the pending matter.1 Thereafter, a second preliminary hearing was held at which time the trial
1
According to respondent’s testimony at the November 4, 2000 trial, she attended each of the
court hearings addressing the petition filed against Mr. Gerbig.
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court authorized the filing of a petition against Mr. Gerbig. At that hearing Mr. Gerbig, the only
respondent to the initial petition, admitted to certain allegations set forth in the petition. On
August 26, 1999, the trial court held a dispositional hearing on the petition. On that date the trial
court referred the minor children to the FIA for placement pursuant to MCL 400.55(h). As
noted, just two months later Mr. Gerbig passed away.
On November 16, 1999, the FIA signed a petition against respondent requesting the
termination of her parental rights pursuant to MCL 712A.19(b)(3)(c)(ii), (g), and (j). A
preliminary hearing was held on December 8, 1999, which respondent attended. The trial court
authorized the filing of the petition and a bench trial was scheduled for January 28, 2000. Upon
completion of trial, the court issued a February 11, 2000, opinion and order terminating the
parental rights of respondent. However, the trial court subsequently vacated that opinion and
order in light of the failure to properly serve respondent with the petition. As a result, a new trial
was held on November 3 and November 4, 2000. Thereafter, the trial court issued a December
6, 2000, opinion and order terminating respondent’s parental rights.
In its opinion and order, the trial court terminated respondent’s parental rights on the
basis of two specific subsections, MCL 712A.19b(3)(g) and (j). The trial court found by clear
and convincing evidence that respondent, without regard to intent, failed to provide proper care
or custody for the minor children and that there was no expectation that respondent could
provide proper care and custody within a reasonable time to the children considering their ages.
The court further found by clear and convincing evidence that the children had “fragile
psychological conditions” and would be emotionally harmed if returned to their mother. Finally,
the trial court found that respondent had failed to establish that it was clearly not in the best
interests of the children to terminate her parental rights.
II. Analysis
A.
Respondent first argues that the trial court erred in terminating her parental rights without
her first being afforded an opportunity to receive and comply with a case service plan. We
disagree. Although respondent’s argument would have some merit if the trial court had
terminated her parental rights pursuant to MCL 712A.19b(3)(c)(ii), a review of the trial court’s
opinion and order discloses that that statutory provision was not a basis for the trial court’s
decision.2 Rather, a review of the trial court’s opinion and order reveals that respondent’s
parental rights were terminated solely on the basis of MCL 712A.19b(3)(g) and (j). Indeed,
under the trial court’s “findings and conclusions,” the court specifically found “by clear and
convincing evidence that [respondent] without regard to intent, failed to provide proper care or
custody for her children . . . [and] there is no expectation that [respondent] will be able to
provide proper care and custody within a reasonable time considering the children’s ages.” This
finding falls explicitly under the requirements of MCL 712.A.19b(3)(g). The court also found
“by clear and convincing evidence, that these fragile children would be emotionally harmed if
2
That statutory provision was, however, a ground asserted in the petition by the FIA as a basis
for termination.
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returned to their mother based on the expert testimony. This is also based on a progress, or lack
thereof, of [respondent] during the pendancy [sic] of this action.” This finding comports with a
termination under MCL 712A.19b(3)(j). Hence, it is clear that the trial court did not terminate
respondent’s parental rights under MCL 712A.19b(3)(c)(ii).
The reasons for termination are important because under neither statutory provision relied
upon by the trial court is there any requirement that the trial court find that respondent did not
comply with a case service plan. Although arguably MCL 712A.19b(3)(c)(ii) has such a
requirement, as noted that section was not relied upon by the trial court in terminating
respondent’s parental rights.
Respondent argues that a case service plan must be prepared before any termination can
take place under any circumstance, citing MCL 712A.18f(2), and that none was prepared in this
case. However, a plan and an updated plan were created for the children under the initial petition
against the biological father, and was referred to by the FIA case worker in respondent’s case.
Importantly, both the August 25, 1999 updated service plan and the October 22, 1999 case
service plan make reference to the respondent’s home, her substance abuse problems, and her
participation in the service plan and problems caring for the children. Although neither plan
separately itemizes what actions respondent must take, the plans are sufficiently specific such
that they provided respondent with ample notice as to what she needed to do to improve her
situation, as well as the home environment, for the children. Trial testimony and reports from
the case worker also revealed respondent’s failure to seek any of the help offered by the FIA,
including the offering of free telephone communication and transportation to implement
visitation. We additionally note that the case service plan and updated case service plan were
considered by the trial court before making its decision, as required by MCL 712A.18f(4).
Accordingly, respondent’s argument is without merit.
B.
Respondent also argues that the trial court clearly erred when it found that clear and
convincing evidence existed to terminate her parental rights. “In order to terminate parental
rights, the [family division of the circuit court] must find that at least one of the statutory grounds
for termination . . . has been met by clear and convincing evidence.” In re Jackson, 199 Mich
App 22, 25; 501 NW2d 182 (1993)(citations omitted). This Court reviews the trial court’s
findings of fact under the clearly erroneous standard. In Re McIntyre, 192 Mich App 47, 50; 480
NW2d 293 (1991). “A finding is clearly erroneous where the reviewing court has a definite and
firm conviction that a mistake has been made.” Jackson, supra at 25, citing In Re Newman, 189
Mich App 61, 65; 472 NW2d 38 (1991).
Upon review of the entire record, we conclude that the trial court did not clearly err in
terminating respondent’s parental rights under MCL 712A.19b(3)(g) and (j). Specifically, the
trial court relied on evidence which revealed that respondent had failed to provide any care, let
alone “proper care or custody,” for the minor children. The evidence before the trial court
showed that respondent had very little contact with the children during the course of at least one
year, and had taken no reasonable steps to institute any type of regular visitation during the
course of these proceedings. Although the trial court noted that respondent and her new husband
had made some improvements in their quality of life, it specifically found -- based in large part
on credibility determinations -- that she was unable to provide any proper care and custody
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within a reasonable time considering the children’s ages. Additionally, the trial court accepted
expert testimony that each of the minor children were of a fragile psychological state of mind
and in need of a stable environment immediately, given their ages. This Court must defer to a
trial court’s credibility determinations. See In re Miller, 433 Mich 331, 337; 445 NW2d 161
(1989). As such, we find that the trial court did not clearly err in finding that at least one ground
for termination was established by clear and convincing evidence.
Once the trial court made its findings in that regard, it took the additional required step by
finding that termination would not clearly be against the best interests of the children. The trial
court relied upon the recommendation of the guardian ad litem, and other evidence in the record,
to conclude that respondent had not established that it was clearly not in the children’s best
interest to terminate her parental rights. The court placed significant emphasis on the ages of the
children, their psychological state, and the fact that respondent had not provided a home for the
children for a long period of time. The trial court’s decision in this regard was supported by both
expert and lay testimony. We will not reverse a trial court’s decision when it chooses between
two sets of competent, competing facts.3 Thus, the evidence did not show that termination of
respondent’s parental rights was clearly not in the children’s best interests. In re Trejo, 462
Mich 341, 356-357; 612 NW2d 407 (2000).
C.
Respondent also makes several procedural arguments, neither of which require reversal.
Respondent first argues that the trial court was required to hold an initial dispositional hearing,
separate from the trial itself, prior to terminating respondent’s parental rights. However,
respondent’s argument fails for two reasons. First, because the trial court had already taken
jurisdiction over the minor children through the father’s admissions, another initial dispositional
hearing was not required. See In re CR, _____ Mich App _____; _____ NW2d _____ (Docket
No. 228856, issued February 26, 2002), slip op at 10. Second, MCR 5.974(D) specifically
allows a trial court to terminate parental rights at the initial disposition phase so long as the
requirements under that court rule are met. Thus, even if an initial dispositional hearing had
been held in this case the trial court could have terminated respondent’s parental rights at that
hearing because its findings at trial fell under MCL 712A.19b(3) which complied with MCR
5.974(D)(3)(c).
Finally, respondent argues that the FIA was required by law to hold a conference prior to
the termination of her parental rights. However, this issue was neither raised before nor decided
by the trial court and, therefore, is not properly presented for appellate review, and we decline to
address the issue. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999).
3
Respondent argues that two letters contained in the trial court record which are favorable to her
reveal that the trial court’s finding were erroneous. However, the trial court specifically noted in
its opinion and order that there was some evidence in the record that respondent and her new
husband had made improvements in their lives. However, the trial court also noted that because
of the demeanor of respondent and her husband during their testimony, it did not believe that
they had improved their situation as much as they had asserted. Hence, the trial court was aware
of and considered this evidence when making its decision. Again, deference must be accorded to
the trial court’s ability to judge the credibility of the witnesses. Miller, supra at 337.
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Affirmed.
/s/ Donald S. Owens
/s/ Jane E. Markey
/s/ Christopher M. Murray
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