IN RE DUSTY TAYLOR JR MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DUSTY TAYLOR, JR., Minor.
DEPARTMENT OF HUMAN SERVICES, f/k/a
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
January 17, 2006
Petitioner-Appellee,
v
No. 263906
Montcalm Circuit Court
Family Division
LC No. 2004-000168-NA
DUSTY TAYLOR, SR.,
Respondent-Appellant.
In the Matter of DUSTY TAYLOR, JR., Minor.
DEPARTMENT OF HUMAN SERVICES, f/k/a
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
v
No. 263907
Montcalm Circuit Court
Family Division
LC No. 2004-000168-NA
MANDY GIBSON,
Respondent-Appellant.
Before: Bandstra, P.J., and Fitzgerald and White, JJ.
PER CURIAM.
In these consolidated appeals, respondents appeal as of right from the trial court order
terminating their parental rights to the minor child under MCL 712A.19b(3)(c)(i), (g), and (j).
We affirm.
Three-month-old Dusty was removed from respondents’ care when no suitable person
was named to care for him after respondent mother was found passed out from intoxication and
the intoxicated respondent father was absent from the home following a domestic dispute.
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Jurisdiction was assumed over the child pursuant to respondent mother’s admissions of substance
abuse, domestic violence in respondents’ relationship, lack of proper care of Dusty, and four
prior minor in possession convictions. Respondent father chose not to appear at the adjudication
for fear of arrest on an outstanding Friend of the Court warrant for failure to support another
child, and a separate adjudication was not held regarding him. Respondents were provided with
parent agency agreements, with which they minimally complied. Respondent father was
incarcerated for nearly four of the nine months of this proceeding.
Petitioner filed a petition for permanent custody only eight months after Dusty’s removal,
before having a permanency planning hearing. A primary theme running through respondents’
arguments on appeal is objection to such swift termination, particularly with regard to respondent
father, who was released from jail only four months before the termination hearing. Respondents
both argue on appeal that they were working on their parent agency agreements and needed more
time, and that clear and convincing evidence did not support termination of their parental rights.
In addition, respondent father challenges MCL 712A.19b(3)(g) as unconstitutionally vague,
asserts that the trial court did not possess jurisdiction over him because it did not conduct an
adjudication with regard to him, argues that his parent agency agreement was illusory because
the agency was intent on termination regardless of his compliance and did not render him
adequate assistance, and argues that the trial court reversibly erred by failing to make specific
best interests findings.
The trial court did not clearly err in determining that the statutory grounds for termination
of parental rights were established by clear and convincing evidence. MCR 3.977(J); In re
Miller, 433 Mich 331, 337, 344-345; 445 NW2d 161 (1989). The evidence, and respondents’
testimony in particular, clearly showed that respondents were not proactive in attempting to
become suitable parents for Dusty. The issue before the trial court was whether respondents
could become able to provide proper care or custody and rectify the conditions leading to
adjudication within a reasonable time. Respondents’ lack of proactive effort clearly indicated
that they would not be able to do so. Although termination was swift, allowing respondents an
additional three-months for a permanency planning hearing and a later termination hearing
would not change the fact that respondents were passive, dependent, and had psychological
issues that would take a great deal of time to remedy. Given nine months’ time, respondents had
not yet even begun to invest in addressing these issues. Contrary to respondent mother’s
assertion, the trial court did not promise that she would have a minimum of one year to rectify
the conditions leading to adjudication, but noted that she must make significant progress within
twelve months, or less, or petitioner would request permanency.
Respondent father next argues that MCL 712A.19b(3)(g) is unconstitutionally vague. “A
statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of
the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to
determine whether an offense has been committed; and (3) its coverage is overbroad and
impinges on First Amendment freedoms.” In re Gentry, 142 Mich App 701, 707; 369 NW2d
889 (1985), citing People v Howell, 396 Mich 16, 20; 238 NW2d 148 (1976). Respondent
argues the second and third grounds, claiming that the terms “proper care and custody” and
“reasonable” are overbroad, and that the trial court used its own interpretation of “reasonable
time” in terminating respondent’s parental rights. He does not argue that he did not have fair
notice of the conduct proscribed.
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This Court has previously determined that the terms “proper care and custody” and
“reasonable,” as used in the previous version of the statute, are not unconstitutionally vague.
Gentry, supra at 707, 709-712. Additionally, to challenge a statute based on overbreadth, the
statute must be overbroad in relation to respondent’s conduct. Gentry, supra at 708-709.
Respondent father’s conduct clearly fit within the statutory prohibition against failure to provide
proper care and custody, and he does not have standing to argue that the statute was overbroad in
relation to his conduct. It clearly applied to him. With regard to the trial court’s interpretation of
“reasonable,” decisions of this Court and the Michigan Supreme Court have sufficiently limited
the trial court’s discretion in finding what is a “reasonable expectation” and a “reasonable time”
so as to render the statute definite enough to withstand a vagueness challenge. Gentry, supra at
709.
Next, respondent father asserts that the trial court did not possess jurisdiction over him
because it did not conduct an adjudication with regard to him. Although respondent father’s
brief on appeal frames his argument in terms of subject matter jurisdiction, the subject matter of
a child protective proceeding is the child, In re Gillespie, 197 Mich App 440, 442; 496 NW2d
309 (1992), and the trial court in this case properly assumed jurisdiction over Dusty pursuant to
respondent mother’s admissions. In substance, respondent father’s argument is one of lack of
personal jurisdiction, which he did not assert in the trial court and may not collaterally attack in
the appeal from the order terminating his parental rights. In re Hatcher, 443 Mich 426, 444; 505
NW2d 834 (1993). However, it was apparent in this case that the trial court properly possessed
jurisdiction over respondent father once he was properly served with the summons and petition.
MCL 712A.12. The trial court’s personal jurisdiction over respondent father was not dependent
on his appearance at the adjudication. In re CR, 250 Mich App 185, 205; 646 NW2d 506 (2001).
Respondent father also argues that petitioner did not fulfill its part of the parent agency
agreement, and that the agreement was illusory because the agency was intent on termination
regardless of his compliance and progress. The evidence showed that the agency provided
respondent father with many referrals and services, as well as cash assistance, and that it
continued to service respondent father even after he moved to another county. The agency had
more time to focus attention on respondent mother because respondent father was incarcerated
for part of the proceeding. In the four months following his release from jail, respondent father
did not meaningfully and productively engage in the services offered. His parent agency
agreement was not illusory. He failed to utilize it and benefit from it.
Lastly, although respondent father argues that the trial court failed to make best interests
findings related to MCL 712A.19b(5), the evidence showed that the trial court made best
interests findings. In addressing Dusty’s best interests the trial court did not use the phrase
“clearly not in the child’s best interests” or cite MCL 712A.19b(5). However, it was apparent
from the trial court’s finding that it was aware of the proper standard of proof and correctly
applied the law to the facts. Findings are sufficient if it appears that the trial court was aware of
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the issues in the case and correctly applied the law. People v Armstrong, 175 Mich App 181,
185-186; 437 NW2d 343 (1989); DeVoe v C A Hull, Inc, 169 Mich App 569, 576; 426 NW2d
709 (1988).
Affirmed.
/s/ Richard A. Bandstra
/s/ E. Thomas Fitzgerald
/s/ Helene N. White
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