Opinion
No. 349595
04-02-2020
IN RE B. M. BAHAM, Minor.
Swiderski & Ward PC (by David J. Swiderski) for respondent.
Swiderski & Ward PC (by David J. Swiderski) for respondent.
Before: Markey, P.J., and Gleicher and M. J. Kelly, JJ.
M. J. Kelly, J. Respondent appeals as of right the trial court order terminating her parental rights to her minor child, BB, presumably under MCL 712A.19b(3)(h) and MCL 712A.19b(3)(j). On appeal, respondent challenges the trial court's decision to take jurisdiction over BB and its decision to terminate her parental rights. We affirm the trial court's order taking jurisdiction over the child because respondent cannot establish plain error affecting her substantial rights with regard to that decision. We vacate the trial court's termination order, however, because after review of the whole record we are left with a definite and firm conviction that the trial court made a mistake by finding clear and convincing evidence of statutory grounds to terminate respondent's parental rights to BB.
Although the trial court order states that the court found statutory grounds to terminate respondent's parental rights, the trial court wholly failed to specifically identify the statutory grounds it found had been established. Petitioner, the Department of Health and Human Services, however, sought termination under MCL 712A.19b(3)(h) and (j), and the trial court's findings—despite being myopically focused on best interests—arguably indicate that it found both statutory grounds satisfied. The trial court's findings will be discussed in detail later in this opinion.
I. BASIC FACTS
In October 2017, respondent and two men entered her father's home. Using a baseball bat, the two men robbed and attacked respondent's father. Respondent and the men left, leaving respondent's father badly beaten. Although respondent did not know it at the time of the armed robbery, her young son was in the home, and as a result of the robbery was left without proper care and custody. On January 3, 2018, respondent was arrested for the armed robbery of her father. She pleaded guilty, and in May 2018, she was sentenced to 5 to 20 years in prison. Her earliest release date is January 8, 2023.
Respondent's son was removed from her care approximately one week later. Her parental rights to her son were subsequently terminated and are not at issue in this appeal.
Respondent did not discover that she was pregnant with BB until after she was incarcerated. Respondent testified that she knew Child Protective Services (CPS) would be involved, and she recounted that before she gave birth she spoke with a pregnancy counselor, who "set up a plan." At the termination hearing, respondent testified that she had three alternative plans for when the child was born: to place the child with her mother, with her brother and sister-in-law, or with a close family friend until respondent was released from prison. Respondent believed that the pregnancy counselor was trying to implement one of the plans, and she believed that the child would be provided with care via a legal guardianship. BB was born in September 2018.
Within days of BB's birth, the Department of Health and Human Services (DHHS) filed a petition seeking temporary custody of BB, alleging that respondent was incarcerated, was unable to physically provide care for BB, and had "not provided an appropriate plan for [BB's] care and supervision." At the time that the petition was filed, BB was at the hospital and no plan for her care had been successfully implemented. At the initial preliminary hearing, a CPS worker informed the court that respondent "would like" BB "to reside with [respondent's] biological brother." And respondent stated that she would not need a lawyer "if we got everything figured out." On further questioning from the court, respondent explained that the plan was for BB to reside with respondent's brother. Thereafter, the child was placed with respondent's brother. No guardianship was put in place, however. On October 9, 2018, respondent entered a plea of admission to the allegations in the petition, and the trial court found that, given respondent's admission, there was a statutory basis under MCL 712A.2(b)(1) to assume jurisdiction of BB.
Respondent was provided with a Parent Agency Treatment Plan, which required her to address her issues with substance abuse, to improve her deficient parenting skills, and to improve her emotional stability. At the termination hearing, respondent's caseworker testified that respondent was compliant with her case planning, noting that respondent "actually did a really good job all things considered." Furthermore, respondent testified that she had completed a parenting class and that she was able to incorporate some of the techniques she learned into her weekly parenting-time sessions with BB. Respondent also testified that she was taking GED classes and that she anticipated earning her GED within one month. She was on a waiting list for cosmetology training, which she hoped would permit her to obtain employment shortly after her release from prison. In addition, respondent testified that she was on the waiting list for other services, including an additional parenting class, a program that would allow her to record herself reading a book and to send the recording to her child, and Narcotics Anonymous (NA) classes. Respondent was also participating in a "Moving On" class, which she explained had taught her how to distinguish good relationships from bad relationships. Respondent's Moving On instructor indicated to her that after completing the class, if she did well, she could become eligible for an earlier release from prison. The caseworker explained that she received documentation showing all the services that respondent had participated in, the services she was on a waiting list for, and the dates of services completed. She also agreed that respondent's testimony regarding her services while incarcerated was "accurate." The caseworker also testified that the prison staff reported that respondent was compliant and had not "gotten into any trouble" or received any tickets since being incarcerated.
We note that the case services plan, even at the outset, demonstrated that the DHHS did not genuinely intend to allow for the possibility of reunification. The initial case services plan stated that "[d]ue to [respondent's] being incarcerated for an extended period, it would be in the child's best interest to change her permanency planning goal to adoption." In another section, the report candidly states that "[d]ue to the length of time [respondent] will be incarcerated, it is in [BB's] best interest to change the goal to adoption ...." The case services plan was signed October 2018, which is before respondent even had an opportunity to attempt to participate in reunification services.
Although the DHHS attempted to introduce evidence that respondent would not, in fact, be eligible for an early release, the trial court declined to take judicial notice of the evidence.
Despite respondent's undisputed compliance with the case services plan, on March 27, 2019, the DHHS filed a petition to terminate respondent's parental rights. The petition alleged that termination was proper under MCL 712A.19b(3)(h) and MCL 712A.19b(3)(j). Following a termination hearing, the trial court made a number of factual findings allowing for an inference that it found statutory grounds to terminate respondent's parental rights under MCL 712A.19b(3)(h) and MCL 712A.19b(3)(j), and it found that termination of respondent's parental rights was in BB's best interests.
This appeal follows.
II. JURISDICTION
A. STANDARD OF REVIEW
Respondent argues that the trial court erred by finding grounds to exercise jurisdiction under MCL 712A.2(b)(1). Respondent did not challenge the court's jurisdictional decision until after the court entered an order terminating her parental rights. Accordingly, we review her challenge for plain error affecting her substantial rights. In re Ferranti , 504 Mich. 1, 29, 934 N.W.2d 610 (2019). In order to prevail, respondent "must establish that (1) error occurred; (2) the error was ‘plain,’ i.e., clear or obvious; and (3) the plain error affected [her] substantial rights." Id. "A ‘clear or obvious’ error under the second prong is one that is not ‘subject to reasonable dispute.’ " In re Pederson Minors , 331 Mich. App. 445, 463, 951 N.W.2d 704 (2020) (citation omitted). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera , 281 Mich. App. 1, 9, 761 N.W.2d 253 (2008). Moreover, reversal is unwarranted unless the error "seriously affected the fairness, integrity or public reputation of judicial proceedings." Ferranti , 504 Mich. at 29, 934 N.W.2d 610 (quotation marks, citation, and brackets omitted).
B. ANALYSIS
Respondent argues that the trial court erred by assuming jurisdiction over BB because the facts that respondent admitted to are insufficient to support a finding of statutory grounds under MCL 712A.2(b)(1). She has not, however, established that an error occurred, that it was plain, and that it affected her substantial rights. Nor has she offered any analysis as to how the alleged plain error seriously affected the fairness, integrity, or public reputation of the child-protective proceedings.
After authorizing a petition to take jurisdiction over a minor child, the trial court "can exercise jurisdiction [over the child] if a respondent-parent enters a plea of admission or no contest to [the] allegations in the petition ...." Ferranti , 504 Mich. at 15, 934 N.W.2d 610 ; MCR 3.971. However, before it may do so, the court must find that a statutory basis exists for exercising jurisdiction over a minor in a child-protective proceeding. In re PAP , 247 Mich. App. 148, 152–153, 640 N.W.2d 880 (2001). Thus, even if a respondent enters a plea of admission to all or some of the allegations in the petition, the trial court may not accept that plea "without establishing support for a finding that one or more of the statutory grounds alleged in the petition are true ...." MCR 3.971(D)(2). If the trial court does not establish support for a finding that one or more of the statutory grounds alleged in the petition is true, then the respondent's plea of admission is invalid because it is not an accurate plea. MCR 3.971(D)(2).
The court may also exercise jurisdiction over the child if the DHHS proves the allegations alleged in the petition at a trial. Ferranti , 504 Mich. at 15, 934 N.W.2d 610.
The court in this case exercised jurisdiction over BB under MCL 712A.2(b)(1), which provides:
(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. [Emphasis added.]
Under this statutory provision, there are a number of alternative grounds for taking jurisdiction. Relevant to this appeal, the trial court specifically stated in its written order of adjudication that it was exercising jurisdiction over BB because there was "a lack of proper custody or guardianship." The phrase "without proper custody or guardianship" is defined by the statute, which provides that " ‘[w]ithout proper custody or guardianship’ does not mean a parent has placed the juvenile with another person who is legally responsible for the care and maintenance of the juvenile and who is able to and does provide the juvenile with proper care and maintenance." MCL 712A.2(b)(1)(C) (emphasis added).
"[A] court speaks through its written orders and judgments, not through its oral pronouncements." In re Contempt of Henry , 282 Mich. App. 656, 678, 765 N.W.2d 44 (2009).
At the adjudication hearing, respondent's lawyer indicated that respondent desired to enter a plea of admission to the allegation of improper supervision contained in ¶ B of the petition. After the court advised respondent of the rights she was giving up by entering a plea and the consequences of entering a plea, respondent testified. She admitted that she was BB's mother, that she was incarcerated for armed robbery, and that her earliest release date is January 8, 2023. The following exchange then occurred between respondent's lawyer and respondent:
Q. And because you-re in the—because you're there at least through 2023, are you able to care for [BB]?
A. No, I can't.
Q. You can't provide physical care for [BB] at this time?
A. No.
Q. And you wouldn't be able to provide any financial care at this time, minimal?
A. No.
Q. All right. And basically the last thing says that you don't really have a—you do have a plan but you don't
really have an appropriate plan for [BB] at this point in time? You have some ideas of what you'd like to do with her?
A. Yeah.
Q. But you can't really do ‘em cause you're in there, correct?
A. Yeah.
Q. Okay. And you can't again and I've already asked this kind of but you can't provide any supervision, you can't watch her or do anything with her at this time?
A. No. [Emphasis added.]
Viewing the above, it is clear that respondent admitted that she was incarcerated. Although respondent also stated that she had an "idea" of what she wanted to happen and that she had a "plan," she nevertheless testified—under oath—that she did not have an appropriate plan for BB's care. Given respondent's testimony, therefore, the court could find—and did find—that BB was left without proper custody and guardianship. Because respondent's testimony was sufficient to establish support for a finding that jurisdiction was proper under MCL 712A.2(b), we discern no plain error in the court's decision.
Despite her testimony that she did not have an appropriate plan for BB's care, respondent contends on appeal that jurisdiction was not proper because BB was placed into the care of respondent's brother and his home was not unfit. Caselaw supports that if a parent places a child in the care of a relative whose home is not unfit, then the "without proper custody or guardianship" language is not satisfied. For example, in In the Matter of Curry , 113 Mich. App. 821, 824, 826-827, 318 N.W.2d 567 (1982), this Court held that the trial court erred by finding the respondents’ children had been left "without proper custody or guardianship" because the respondents had placed their children in the custody of relatives before the probate court hearing and there was no evidence showing that the children's living environment was unfit or unwholesome. The Court explained that "[u]ntil there is a demonstration that the person entrusted with the care of the child by that child's parent is either unwilling or incapable of providing for the health, maintenance and well being of the child, the state should be unwilling to interfere." Id. at 826-827, 318 N.W.2d 567. Similarly, in In re Ward , 104 Mich. App. 354, 360, 304 N.W.2d 844 (1981), this Court held that a child "who was placed by her natural mother in the custody of a relative who properly cared for her ... is not a minor ‘otherwise without proper custody or guardianship’ " under MCL 712A.2(b)(1).
In this case, unlike the respondents-parents in Ward and Curry , there is no evidence that respondent placed her child with any relative before the petition was filed. See In re MU , 264 Mich. App. 270, 279, 690 N.W.2d 495 (2004) (holding that because MCL 712A.2 "speaks in the present tense, ... the trial court must examine the child's situation at the time the petition was filed"). Instead, at the time the petition was filed, BB was in the hospital. And, although respondent had been discussing arrangements for BB's care with a pregnancy counselor, respondent did not implement any of the potential plans prior to the filing of the petition. Again, as noted above, respondent testified at the termination hearing that she had "three plans for when the baby was born." And she stated that she "thought" the care was supposed to be through a guardianship, which is what the pregnancy counselor was "trying to work out." However, she agreed that "something happened and the guardianship wasn't done." No guardianship was ever established, either before or after the adjudication hearing was held. As a result, notwithstanding the child's placement with respondent's brother at the time she entered her plea of admission, respondent cannot show plain error.
Finally, even if respondent could show plain error, she made no attempt to establish that the plain error affected her substantial rights. Respondent made a decision to enter a plea of admission to the allegations in the petition. As a result, the adversarial process was never engaged. We can glean from the record that respondent discussed multiple options for giving a guardianship over BB to a relative or a close family friend. We cannot, however, discern whether any relative or family friend was willing—prior to the involvement of the DHHS—to actually serve as the child's guardian. We could discern that respondent's brother was willing to take care of the child. The record shows that he and his wife—after the DHHS became involved—accepted placement of the child. But the record also reflects that he thought adopting BB was the best option. There is nothing indicating that he would have accepted a legal guardianship as an alternative. Nor is there any indication that, again, absent the involvement of the DHHS, he would have been willing and capable of providing for BB's care and custody for the duration of respondent's incarceration. Ultimately, because respondent entered a plea of admission, these factual matters remain ambiguous, open to speculation either in support of or in opposition to respondent's argument on appeal. Speculation and suspicion that a plain error may have occurred is insufficient to establish a reasonable probability that the outcome of the proceedings would have been different. For the same reasons, we conclude that even if there were an error, it did not seriously affect the integrity, fairness, or public reputation of the child-protective proceedings. The trial court did not err by finding statutory grounds to exercise jurisdiction under MCL 712A.2(b).
III. TERMINATION OF PARENTAL RIGHTS
A. STANDARD OF REVIEW
Respondent next argues that the trial court erred by finding statutory grounds to terminate her parental rights. Challenges to a court's finding that a statutory ground for termination has been established are reviewed for clear error. In re Hudson , 294 Mich. App. 261, 264, 817 N.W.2d 115 (2011) ; see also MCR 3.977(K). "Clear error exists when some evidence supports a finding, but a review of the entire record leaves the reviewing court with the definite and firm conviction that the lower court made a mistake." In re Dearmon , 303 Mich. App. 684, 700, 847 N.W.2d 514 (2014). We defer to the trial court's special opportunity to view the witnesses before it. Id.
As recently explained by this Court in Pederson Minors , 331 Mich. App. at 472, 951 N.W.2d 704 (some alterations in the original):
"To terminate parental rights, the trial court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence." In re Ellis , 294 Mich. App. 30, 32 (2011). The clear and convincing evidence standard is "the most demanding standard applied in civil cases[.]" In re Martin , 450 Mich. 204, 227, 538 N.W.2d 399 (1995). Evidence is clear and convincing if it
produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the
truth of the precise facts in issue. [ Id. (quotation marks, citation, and brackets omitted).]
"Evidence may be uncontroverted, and yet not be ‘clear and convincing.’ " Id.
(quotation marks and citation omitted). "Conversely, evidence may be ‘clear and convincing’ despite the fact that it has been contradicted." Id. (quotation marks and citation omitted).
B. ANALYSIS
We first address whether reversal is required because the trial court failed to specifically identify the statutory grounds upon which it was terminating respondent's parental rights. MCR 3.977(I)(3) provides that "[a]n order terminating parental rights under the Juvenile Code may not be entered unless the court makes findings of fact, states its conclusions of law, and includes the statutory basis for the order." The court must "state on the record or in writing its findings of fact and conclusions of law[;] [b]rief, definite, and pertinent findings and conclusions on contested matters are sufficient." MCR 3.977(I)(1). In its lengthy opinion, the trial court did not specifically identify either MCL 712A.19b(3)(h) or (j) as a basis for its termination decision, nor did it directly quote the language of either statutory provision. In fact, the language used in its opinion showed that, as it related to respondent, the court was focused exclusively on the best interests of the child. Nevertheless, in its written order, the court did proclaim that it found statutory grounds to terminate respondent's parental rights. And although an articulation of the statutory grounds and the facts the court found to support them would have greatly aided this Court's review, the findings the court did make are adequate for appellate review.
In contrast, when determining whether to terminate the parental rights of BB's unidentified father, the court specifically found that termination was proper under MCL 712A.19b(3)(a)(i ) because the father had deserted BB for a period of 28 or more days and had not sought custody during that period. Then, only after finding statutory grounds for termination, the court turned to whether termination of the father's parental rights was in BB's best interests.
The trial court, for example, discussed the existence of a bond between BB and respondent, but determined the child's bond with the foster parents (who had more contact with BB) was stronger. The court then stated that "[t]he child has a great need for permanency, stability and finality," noting her young age and her possibility of developmental delays. The court considered, at length, the "advantage[s] of the foster home over the parent's home," as well as the existence of a bond between BB and her cousins. The court expressly stated that "[t]he child is doing extremely well in current care" and noted that the "possibilities of adoption in the current placement is great." Then, finally, the court looked at "the issue of relative placement," but determined that it did not outweigh the need to terminate. Ultimately, at the conclusion of all of its findings of fact, the court stated that it was in BB's best interests to terminate respondent's parental rights.
The DHHS sought termination under MCL 712A.19b(3)(h) and (j), presented evidence in support of those statutory grounds, and argued during closing that the grounds had been established by the evidence presented. Termination is proper under MCL 712A.19b(3)(h) if the court finds by clear and convincing evidence:
The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, and 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.
As explained by our Supreme Court in In re Mason , 486 Mich. 142, 160-161, 782 N.W.2d 747 (2010), " MCL 712A.19b(3)(h) authorizes termination only if each of [the] three conditions" set forth in the statute are met. We examine each condition in turn. First, the court must find by clear and convincing evidence that the respondent "is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years ...." MCL 712A.19(b)(3)(h) ; Mason , 486 Mich. at 160, 782 N.W.2d 747. The second condition requires the trial court to find that "the parent has not provided for the child's proper care and custody." MCL 712A.19(b)(3)(h) ; Mason , 486 Mich. at 160, 782 N.W.2d 747. Here, the court found that respondent's earliest release date was January 8, 2023, which means that respondent's incarceration will necessarily exceed a two-year period. Furthermore, it is clear that, because she is imprisoned, respondent will be unable to provide a normal home for BB for a period exceeding two years. Yet, respondent's inability to personally provide care for her child is not dispositive because a parent does not have to be personally able to provide proper care and custody. Rather, he or she can "achieve proper care and custody through placement [of the child] with a relative." Mason , 486 Mich. at 161 n. 11, 782 N.W.2d 747. In this case, the record reflects that respondent and the DHHS worked together to place BB with respondent's brother. It does not matter that the child was placed with the DHHS before respondent could voluntarily place the child with her brother. See id. at 163-164, 782 N.W.2d 747. Here, BB was, in fact, placed in the care of respondent's brother, who as recounted by the trial court, was providing exceptional care and custody for the child in respondent's absence. Therefore, given that the undisputed record shows that respondent was providing proper care and custody to BB by placing her with a relative, we are left with a definite and firm conviction that a mistake was made. In addition, there is insufficient evidence to support a finding that the third element of MCL 712A.19b(3)(h) is satisfied. The third condition "is forward-looking" and "asks whether a parent ‘will be able to’ provide proper care and custody within a reasonable time." Mason , 486 Mich. at 161, 782 N.W.2d 747. In this case, the caseworker opined that it would take respondent 8 to 12 months after being released from prison to be able to provide BB with proper care and custody, noting that respondent would have to maintain stable housing and employment, have child care in place, participate in substance-abuse classes or NA meetings, and participate in parenting classes. Yet, the caseworker acknowledged that her opinion was "based on the normal life span of a CPS case." The caseworker's opinion, thus, is "largely unsupported" by evidence specific to respondent's circumstances. See id. at 162, 782 N.W.2d 747 (noting that the trial court erred by relying on a caseworker's largely unsupported opinion regarding how long it would take the respondent to provide care after being released from prison). Moreover, the caseworker's unsupported opinion was contradicted by the evidence admitted at the termination hearing. First, while in prison, respondent had completed a parenting class and was on a waiting list for another one. She was able to incorporate some of the techniques she learned into her parenting-time visits. There are no reports that she was inappropriate at parenting time. Therefore, even if she had to take another parenting class upon release from prison, there is nothing to suggest that she might need to take multiple classes or that her parenting skills would be at a preprison level such that it would take her up to a year to resolve any parenting problems. Second, respondent was on a waiting list for cosmetology school and intended to seek employment in that field upon release. She was also in the process of obtaining her GED. Therefore, although the caseworker opined that employment might be a problem, it was a problem that respondent was actively seeking to remedy prior to her release. Third, despite the caseworker's opinion that respondent might not have any support to assist her in caring for her daughter, the record reflects that her parents were very supportive of her. Moreover, given the undisputed bond between respondent's brother's family and BB, it defies logic to assume that respondent's brother would be unwilling to provide any assistance with BB's care once respondent was released from prison. Finally, with regard to housing, respondent stated that she intended to reside with her parents until she could earn enough money for her own apartment. There is nothing on the record to suggest that she would be required to live independently before her child could be returned to her.
It should be noted that MCL 712A.19b(3)(h) requires a finding that a parent has not provided for a child's proper care and custody , and our Supreme Court has expressly held that a parent can achieve proper care and custody by placing a child with a relative. Mason , 486 Mich. at 161-164, 782 N.W.2d 747. The fact that the placement may occur after the trial court has exercised jurisdiction under MCL 712A.2(b), and that the placement may have only been accomplished with the aid of the DHHS and the court, is irrelevant. The evidentiary standard requires proof by clear and convincing evidence. In contrast, MCL 712A.2(b)(1)(C) provides that a child is without proper care and custody if the parent does not place the child with someone legally responsible for that child's care. Further, it requires the court to examine the circumstances at the time the petition is filed. In re MU , 264 Mich. App. at 279, 690 N.W.2d 495. The evidentiary standard only requires proof by a preponderance of the evidence. Therefore, although evidence that respondent planned with the DHHS to place BB with her brother and that BB was actually placed with respondent's brother after the petition was filed is insufficient to defeat a finding of statutory grounds for jurisdiction under MCL 712A.2(b), that same evidence is sufficient to support a finding that the respondent did, in fact, provide for her child's proper care and custody under MCL 712A.19b(3)(h).
The caseworker testified that, although none of the visits was observed by her, the foster parents reported that BB would cry "a lot" during the visits. However, the foster parents apparently attributed the crying to being at the prison. In addition, given that BB was an infant at the time, it would have been more alarming if she did not cry at all during the visits.
Finally, the trial court found that respondent was complying with her services and was doing well in prison, which further negates an inference that she somehow would be noncompliant with services if released. Specifically, the trial court found—and the record confirms—that:
The trial court recited respondent's history of noncompliance with services in an earlier child-protective proceeding. However, given that respondent had been compliant for nine months and was still seeking out services, the inference of noncompliance created by her conduct in the earlier case was weakened.
since [respondent's] been incarcerated since January of 2018, she's done extremely well. And while in prison, it appears she's a model prisoner. She's been doing everything she could, doing all the classes she can, doing parenting classes ....
* * *
It sound like things are going very, very, very well in prison for her and that's a good thing. And what's also telling of the type of family she has is that even she says here today that her goal would be once she's released from
prison, that she'd probably return to her father's home. That's where her son is apparently and where this crime occurred that caused her to go to prison. And so her family has apparently forgiven her. She's indicated that her mother, her father, brother or sister brings [BB] up for parenting time with her and that she's apparently mended whatever damage she's done with her family which is a good thing and it really shows what kind of a strong family they have ....
* * *
The parent's compliance with [the] case service plan has been great as far as [respondent] has been concerned.... [S]ince this child has come into care which was shortly after birth in September of 2018, she has done everything possible that she could. [Respondent] has done every program that she can get her hands on while she's institutionalized. She's been doing the visits that she could. Her parenting visitation with the child, the history of visitation has been extremely good. Any time she can, she's there, and has been showing she's trying to do what she can to better herself and if at all possible to have the child returned to her care. So she's done very well with compliance with the case service plan as well as visitation.
Considering all of the above, we are left with a definite and firm conviction that the court made a mistake by terminating respondent's parental rights under MCL 712A.19b(3)(h).
In addition, termination was not proper under MCL 712A.19b(3)(j). The court may terminate a parent's parental rights under Subdivision (j) if it finds by clear and convincing evidence that "[t]here is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent." Again, the record reflects that—despite her prior history—respondent was compliant with services and was seeking out additional services. She was demonstrating appropriate parenting during the parenting-time visits and was making plans for how to support herself and BB in the future, including by earning a GED and attending vocational school while in prison. Her family was supportive of her, both financially and emotionally, and would visit her at the prison. Respondent's behavior in prison was exemplary, with the prison staff reporting that she had no tickets and was not causing any trouble. In light of respondent's undisputed progress toward reunification, to the extent that the court found a reasonable probability of harm to BB if returned to respondent's care, the court's finding was clearly erroneous.
IV. CONCLUSION
The trial court did not plainly err by exercising jurisdiction over BB under MCL 712A.2(b)(1). Accordingly, we affirm the order of adjudication. However, because the court clearly erred by finding statutory grounds to terminate respondent's parental rights under MCL 712A.19b(3)(h) and (j), we vacate the trial court's termination order.
Affirmed in part, vacated in part, and remanded for further proceedings. We do not retain jurisdiction.
Markey, P.J. (concurring in part and dissenting in part).
I fully agree with the analysis and conclusion set forth in the lead opinion with respect to the adjudicative phase of the proceedings and the determination that the trial court had jurisdiction. But I strongly disagree with my colleagues that the trial court committed clear error by finding clear and convincing evidence in support of termination. I would affirm the order terminating respondent-mother's parental rights under MCL 712A.19b(3)(h) (parent is imprisoned for such a period that the child will be deprived of a normal home for more than two years). Accordingly, I concur with regard to the issue of jurisdiction and dissent on the matter of termination under MCL 712A.19b(3)(h).
With respect to the dispositional phase of the proceedings and termination, I begin with respondent's argument that the court failed to articulate the specific statutory grounds upon which it was terminating her parental rights. MCR 3.977(I)(3) provides that "[a]n order terminating parental rights under the Juvenile Code may not be entered unless the court makes findings of fact, states its conclusions of law, and includes the statutory basis for the order." The court must "state on the record or in writing its findings of fact and conclusions of law[,] [and] [b]rief, definite, and pertinent findings and conclusions on contested matters are sufficient." MCR 3.977(I)(1).
The Department of Health and Human Services (DHHS) pursued termination under MCL 712A.19b(3)(h) and (j). Section 19b(3)(h) provides for termination when "[t]he parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, and 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." Section 19b(3)(j) provides for termination when "[t]here is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent."
My review of the trial court's ruling from the bench reveals that the court did not specifically refer to § 19b(3)(h) or (j). The court did, however, devote a great deal of time to discussing respondent, her lengthy imprisonment, BB, and BB's best interests. But, the fact is, although the trial court implied as much, it did not make the requisite specific findings that there existed a reasonable likelihood that BB would be harmed if placed in respondent's care. Therefore, I must agree that termination cannot be affirmed on the basis of § 19b(3)(j).
The order terminating respondent's parental rights also did not specifically identify the particular statutory ground or grounds that the court relied on in making its ruling.
At the time respondent's plea was taken, this requirement was codified at MCR 3.971(C)(2).
On the other hand, the record is more than adequate to discern that the trial court terminated respondent's parental rights under § 19b(3)(h). The trial court noted the horrendous armed robbery that respondent aided and abetted against her own father, a crime that left her father near death, that was perpetrated in the presence of her own son, and that led to her conviction for armed robbery and a lengthy prison sentence. The court also observed that respondent would serve at least three years before she might be released from prison. Further, the trial court heavily referenced the prior termination proceedings regarding respondent's son (BB's half-brother) who was present during the crime and who is not at issue here. The trial court additionally alluded to the three-month period before respondent was arrested and incarcerated for armed robbery in January 2018. While acknowledging that respondent had done well in prison, the court stressed that that three-month window was "the only time that [it could] really look at to determine what [respondent] would be like outside of incarceration because she has been incarcerated since January of 2018." Moreover, the court noted that respondent had failed miserably at compliance with the treatment plan and that she then basically disappeared. The trial court further stated:
In October 2017, respondent participated in the armed robbery. The DHHS removed respondent's son from her care in November 2017. In January 2018, respondent was arrested for aiding and abetting the armed robbery. After pleading guilty, she was sentenced to 5 to 20 years’ imprisonment in May 2018. Her earliest release date is January 8, 2023. BB was born in September 2018 while respondent was in prison. In November 2018, respondent's parental rights to her son were terminated, and respondent did not appeal that termination. In the proceedings regarding her son, respondent failed to comply with her treatment plan with respect to participating in substance-abuse counseling, random drug screens, parenting education, and mental health services.
Respondent referred to the task of "figuring out" the child's placement as a joint enterprise: "we got everything figured out." The context, fairly read, makes the point unmistakable: respondent was personally and deeply involved in the placement process.
Obviously, [respondent] is unable to provide for [BB] and her parenting ability, as far as we could tell with the other child, is extremely poor. The child was left with [respondent's] dad a lot apparently and left with other people and she appears to have some issues when she is stressed and possibly some developmental problems herself and certainly did not have great parenting skills when she was with the other child.
The court reiterated that it would be about three years, at the earliest, before respondent was released from prison. The trial court continued:
And then obviously the child would not be back in her care immediately. She'd have to once again show that she's dealing with whatever issues she needs to deal with, including any mental health issues, work-related issues, housing issues, looking at whether she has a substance abuse problem and whether or not that would come to light again once she's released so there's a lot of things that would have to be taken care of before this child would be able to be returned home. So at minimal, we're looking at three-and-a-half to four years. And right now [BB] is ... almost nine months old so we're looking at a child who would most likely be five years old before she's looking at being returned to the care of her mother.
The court additionally found that "the fact that [BB] would be almost five years old before there'd be any chance of reunification make[s] it clear that we cannot for this child's sake allow -- not terminate today." The trial court then concluded that "[t]here is clear and convincing evidence that a statutory basis exists for the termination of parental rights ...." When read in context and in their entirety, the court's observations and findings as discussed above sufficed to reflect a proper determination that respondent was imprisoned for a period exceeding two years, that she had not provided for BB's proper care and custody, and that there was no reasonable expectation that respondent would be able to provide proper care and custody within a reasonable time considering BB's age. MCL 712A.19b(3)(h).
Next, respondent contends that even assuming the statutory grounds the court relied on were MCL 712A.19b(3)(h) and (j), the court clearly erred by finding that those grounds were proven by clear and convincing evidence. Given my conclusion regarding § 19b(3)(j), I examine this issue solely in the context of § 19b(3)(h). And I again strongly disagree with the lead opinion that the trial court clearly erred by terminating respondent's parental rights under § 19b(3)(h).
If a trial court finds that a single statutory ground for termination has been established by clear and convincing evidence and that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child, the court is mandated to terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5) ; MCR 3.977(H)(3) ; In re Beck , 488 Mich. 6, 10-11, 793 N.W.2d 562 (2010) ; In re Moss, 301 Mich. App. 76, 90, 836 N.W.2d 182 (2013) ; In re Ellis , 294 Mich. App. 30, 32, 817 N.W.2d 111 (2011). "This Court reviews for clear error the trial court's ruling that a statutory ground for termination has been established and its ruling that termination is in the children's best interests." In re Hudson , 294 Mich. App. 261, 264, 817 N.W.2d 115 (2011) ; see also MCR 3.977(K). "A finding ... is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed[.]" In re BZ , 264 Mich. App. 286, 296, 690 N.W.2d 505 (2004). When applying the clear-error standard in parental termination cases, "regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Miller , 433 Mich. 331, 337, 445 N.W.2d 161 (1989) ; see also MCR 2.613(C).
"A parent's failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody." In re White , 303 Mich. App. 701, 710, 846 N.W.2d 61 (2014). The doctrine of anticipatory neglect provides that how a parent treats one child is probative of how that parent may treat other children. In re LaFrance Minors , 306 Mich. App. 713, 730, 858 N.W.2d 143 (2014). It is clear that the trial court in the instant case relied on these two legal principles or doctrines in making its ruling, emphasizing respondent's treatment-plan failures in relation to her son. I find no clear error in the court's doing so. Respondent's abysmal failures resulting in the termination of her parental rights to her son reflected an inability to properly care for a child. Respondent's failure to comply with her treatment plan and to utilize services designed for her did not occur years ago—they occurred immediately before respondent was incarcerated. Respondent's in-prison compliance with the treatment plan while in the early stages of her imprisonment was not enough to be predictive of her future and overcome or obviate the reality of her prior conduct. For the factual and legal reasons the trial court carefully articulated and that I recited, quoted, and referenced earlier, I cannot conclude that the court clearly erred by finding that there was clear and convincing evidence to support termination of respondent's parental rights to BB under MCL 712A.19b(3)(h). Respondent does not challenge the trial court's ruling regarding BB's best interests, so it is not our job to do so here.
I certainly recognize that "[t]he mere present inability to personally care for one's children as a result of incarceration does not constitute grounds for termination." In re Mason , 486 Mich. 142, 160, 782 N.W.2d 747 (2010). I also acknowledge that "Michigan traditionally permits a parent to achieve proper care and custody through placement with a relative." Id. at 161 n. 11, 782 N.W.2d 747. But here, respondent not only has a serious history of poor parenting and a prior termination of rights regarding an older child, she will be in prison for several more years. BB will be four years old when or if her mother is released in January of 2023. Respondent will be a complete stranger to this child who will have been living in a stable environment her entire life. And we must not be oblivious to the fact that respondent's incarceration arose from her assistance in a frightening, near-fatal assault against her own father while he was caring for her son, the child respondent lost in her prior termination proceedings. My colleagues view this case in a vacuum, focusing exclusively on respondent's time in prison, i.e., while in a very structured, confined, and controlled setting, far removed from her everyday life. But respondent's "good" behavior during this period of imprisonment is, frankly, in my view, irrelevant to predicting her behavior three-plus years in the future upon release from prison. My colleagues’ focus on this period in concluding that the trial court clearly erred by terminating respondent's rights to BB is mystifying at best, and in my opinion, legally incorrect. My colleagues are also misguided in their focus on BB instead of giving context to the proceedings and considering the far more telling circumstances pertaining to the previous termination of respondent's parental rights to her son and her long-term, unacceptable, pre-incarceration behavior. Along with the termination of her parental rights to her son and her treatment-plan failures, we must also consider, as did the trial court, respondent's psychological status. According to a caseworker from the DHHS, respondent's psychological evaluation indicated that she was detached from her son, that she was "extremely dependent on others," and that she was fearful of rejection and abandonment. The psychological report further revealed that respondent's cognitive functioning fell within a "borderline range" and that she would have difficulty with planning and anticipating situations and consequences in her life. In terms of parenting, respondent was deemed at risk for patterns of abuse and neglect. Additionally, the psychological report noted that respondent was "quite self-preoccupied," easily overwhelmed, and would have difficulties subjugating her needs to the needs of a child. Surely this evidence, coupled with respondent's undisputed history, weighs far more heavily and serves as a far better predictor of respondent's behavior three years hence than does her conduct exhibited during only the first year or so of her 5-20 year prison sentence. How can my colleagues conclude under these facts that the trial court clearly erred?
I do not read In re Mason for the proposition that an imprisoned parent can avoid termination under § 19b(3)(h) in all cases where the child at issue is placed with relatives who provide the child with proper care and custody. In the instant case, the termination of respondent's parental rights to her son, her past noncompliance with services and failure to provide proper care or custody to a child, and her precarious psychological state all support the trial court's basis for termination under MCL 712A.19b(3)(h) no matter that respondent's brother and sister-in-law were caring for BB. In sum, there was sufficient evidence showing that BB would be deprived of a normal home for a period exceeding two years due to respondent's imprisonment, that respondent had not provided for BB's proper care and custody, and that there was no reasonable expectation that respondent would be able to provide proper care and custody "within a reasonable time considering [BB's] age." MCL 712A.19b(3)(h) (emphasis added). In my view, reversal is wholly unwarranted. I would affirm the termination of respondent's parental rights. Finally, I urge the DHHS to seek leave to our Supreme Court for the important task of clarifying this issue.
I note that it was not "the parent" who "provided for the child's proper care and custody," MCL 712A.19b(3)(h) ; rather, it was the DHHS that ultimately provided for BB's care and custody by placing her with respondent's brother and sister-in-law. Respondent simply had multiple unexecuted ideas regarding BB's care.
The transcript is certainly susceptible to a reading that places responsibility for calculated avoidance of the central issue on the shoulders of respondent's counsel. That does not excuse the court or the DHHS from their independent obligations to recognize that this plea was defective.
I concur in part and dissent in part.
Gleicher, J. (concurring in part and dissenting in part).
The lead opinion holds that the circuit court erred by terminating respondent's parental rights based on evidence that did not satisfy the clear and convincing standard, and I agree. But I respectfully disagree that the circuit court properly assumed jurisdiction in the first place. The child at issue, BB, was not "without proper custody" at the time of the adjudication hearing, and that fact should have precluded a jurisdictional finding.
I. THE ADJUDICATION ERRORS
As the lead opinion explicitly acknowledges, a court may not accept a respondent's plea to jurisdiction "without establishing support for a finding that one or more of the statutory grounds alleged in the petition are true[.]" MCR 3.971(D)(2).1 "While the adjudicative phase is only the first step in child protective proceedings, it is of critical importance because the procedures used in adjudicative hearings protect the parents from the risk of erroneous deprivation of their parental rights." In re Sanders , 495 Mich. 394, 405-406, 852 N.W.2d 524 (2014) (quotation marks, citation, and brackets omitted). "The adjudication divests the parent of her constitutional right to parent her child and gives the state that authority instead." In re Ferranti , 504 Mich. 1, 16, 934 N.W.2d 610 (2019). To avoid unwarranted disruption of a parent-child relationship and to safeguard a parent's rights, close adherence to the adjudicatory rules is required.
The lead opinion holds that the trial court properly assumed jurisdiction under MCL 712A.2(b)(1) because respondent mother is incarcerated and had not provided an "appropriate" plan for BB's care. The record firmly refutes that conclusion. Respondent was incarcerated throughout her pregnancy and therefore could not have personally placed her newborn with the caregivers she selected. Nevertheless, respondent diligently planned for her newborn's care, and this fact was well-known to the Department of Health and Human Services (DHHS) before the court assumed jurisdiction. Shortly after her birth and weeks before the adjudication hearing, BB was safely placed with respondent's brother and sister-in-law, at respondent's suggestion. In my view, this placement deprived the court of jurisdiction.
Respondent learned of her pregnancy while in prison. With the assistance of the prison's "pregnancy counselor," respondent helped arrange for her brother and his wife to assume custody of the child after her birth. Here is the relevant testimony at the first preliminary hearing, conducted in Washtenaw County four days after BB's birth (and before the newborn's hospital discharge):
The Court : Do you want an attorney appointed?
[Respondent ]: I don't think I need one if we got everything figured out.
The Court : Okay. I'm not sure what you mean by that but --
[Respondent ]: Well, cause my caseworker --
The Court : All right. Well, I'll hear from you in a moment.
[Respondent ]: Okay.
* * *
The Court : ... Ms. House [DHHS worker], do you know what she's referring to?
Ms. House : Yes, your Honor. [Respondent ] would like [BB ] to reside with her biological brother. I got his name
over here, I'm sorry, and his wife in Van Buren County.
The Court : All right. Well, is that what you were referring to, [respondent ], when you said you have everything worked out?
[Respondent ]: Yeah.
The Court : Okay. That's the placement but what that doesn't address is your rights.... [Emphasis added.][ 2 ]
When the trial court further inquired about BB's placement, the DHHS worker advised, "A 588, a home assessment with relative home assessment was already completed because they knew the baby was coming and that was the home that was speculated as to being able to provide for [BB]."
The preliminary hearing was continued so that the court could appoint counsel for respondent. At the continued hearing on October 2, the prosecutor advised that "[t]he child is placed with a relative, the respondent mother's brother in Van Buren County." BB remains in that placement today.
Given respondent's testimony at the preliminary hearing that she helped establish the placement, it was utterly disingenuous for the DHHS to proceed with a petition asserting that she "abandoned the child[ ] without proper custody or guardianship." See MCL 712A.2(b)(1). As the DHHS was aware, this contention was untrue.
The lead opinion asserts that jurisdiction was proper under a different clause of MCL 712A.2(b)(1), which refers to a child "who is without proper custody or guardianship." According to the lead opinion, quoting MCL 712A.2(b)(1)(C), the phrase "without proper custody or guardianship" is "defined" by the statute as follows: " ‘Without proper custody or guardianship’ does not mean a parent has placed the juvenile with another person who is legally responsible for the care and maintenance of the juvenile and who is able to and does provide the juvenile with proper care and maintenance."
A sentence proclaiming what something does not mean hardly qualifies as a "definition." In my view, the statutory language ("without proper custody or guardianship") is plain and unambiguous. If a child has "proper custody" or is in a guardianship, a court may not take jurisdiction. I would read MCL 712A.2(b)(1)(C) as an additional caution that MCL 712A.2(b)(1) does not apply when "a" parent has placed the child with a legally responsible person. In other words, MCL 712A.2(b)(1)(C) highlights that a court does not have jurisdiction when a child is being cared for by a legally responsible person, regardless of whether the respondent or the other parent arranged for the placement. This interpretation is easily synchronized with the "big picture" meaning of the words "without proper custody or guardianship." A child in "proper custody," even if placed there by a parent other than the respondent, is not subject to the court's jurisdiction.
BB was in "proper custody" before the adjudication because respondent did everything she could to achieve that placement. That she needed help arranging for that "proper custody" due to her incarceration is legally irrelevant. Our Supreme Court explained in Sanders , 495 Mich. at 420-421, 852 N.W.2d 524 :
An incarcerated parent can exercise the constitutional right to direct the care of his or her children while incarcerated,
and [the respondent-father] has tried to do just that. For example, an incarcerated parent can choose who will care for his children while he is imprisoned. In re Mason , [486 Mich. 142, 161 n. 11, 782 N.W.2d 747 (2010)] ("Michigan traditionally permits a parent to achieve proper care and custody through placement with a relative."). [Citation omitted.]
The DHHS knew that BB was in "proper custody," the prosecutor knew it, respondent knew it, and respondent's attorney knew it, too. The circuit court should have similarly understood that BB was not legally subject to the court's jurisdiction, despite the contrived colloquy conducted by respondent's counsel:
[Respondent's Counsel ]: All right. And basically the last thing says that you don't really have a -- you do have a
plan but you don't really have an appropriate plan for [BB] at this point in time? You have some ideas of what you'd like to do with her?
[Respondent ]: Yeah.
[Respondent's Counsel ]: But you can't really do ‘em cause you're in there, correct?
[Respondent ]: Yeah.
[Respondent's Counsel ]: Okay. And you can't again and I've already asked this kind of but you can't provide any supervision, you can't watch her or do anything with her at this time?
[Respondent ]: No.
That respondent could not personally provide "supervision" was not determinative or even relevant to the inquiry required under MCL 712A.2(b)(1). The pertinent question was whether respondent had arranged for someone else to do so. That question was never asked.3 The answer was already in the record: she had. A fair reading of the questions and answers reveals that the questioner (respondent's counsel) understood full well that respondent had a "plan" for the child that would have defeated jurisdiction, and deliberately changed the subject to present care and custody.
Despite this inadequate testimony, the court accepted a plea to jurisdiction. To establish jurisdiction, the DHHS had to prove the allegations set forth in the petition by a preponderance of the evidence. MCR 3.972(C)(1) and (E). Alternatively, respondent could admit the allegations, as counsel attempted to accomplish here. MCR 3.971. But a plea of admission does not relieve the court of its responsibility to verify a plea's accuracy. MCR 3.971(D)(2). Nor does a plea excuse a court from considering whether the facts admitted amount to an actual ground for taking jurisdiction. For example, in Ferranti , 504 Mich. at 30, 934 N.W.2d 610, the Supreme Court held that the circuit court "violated MCR 3.971(C)(2) by failing to establish support for a finding that one or more of the statutory grounds alleged in the petition were true. Therefore, the manner in which the trial court assumed jurisdiction violated the respondent-mother's due process rights." Similarly, in In re Wangler/Paschke , 498 Mich. 911, 911, 870 N.W.2d 923 (2015), the Supreme Court held that the circuit court "violated MCR 3.971(C)(2) by failing to establish support for a finding that one or more of the statutory grounds alleged in the petition were true." Here, the plea colloquy was inadequate and inaccurate, and the assumption of jurisdiction was therefore erroneous.
At the time respondent's plea was taken, this provision was codified at MCR 3.971(C)(2).
The lead opinion holds that because respondent testified that she did not have an "appropriate " plan for BB, the court correctly found that the child "was left without proper custody and guardianship." Therefore, the lead opinion continues, there was no plain error in the court's decision. The lead opinion fails to explain, however, why respondent's plan was inappropriate, particularly since the child remains to this day in the placement originally selected by respondent. Lest there be any doubt about the plan and respondent's role in forming it, the issue was revisited at the termination trial:
The Court : Did you know that [Child Protective Services] would become involved with [BB]?
[Respondent ]: Yeah.
The Court : Did you talk to an attorney or seek out any information about a guardianship for the baby?
[Respondent ]: Yes, I talked to a pregnancy counselor.
The Court : Okay. What happened with that?
[Respondent ]: She set up a plan. I had three plans for when the baby was born and she did a home check for them to take the baby.
The Court : So do you remember what the three options were, what the difference was?
[Respondent ]: It was for mom to take her until I came home, and then it was my brother and my sister-in-law, and then there was also a family friend that would have took her until I came home.
The Court : And was that supposed to be through a guardianship?
[Respondent ]: I thought so when I talked to the pregnancy lady, that's what she was trying to work out. [Emphasis added.]
This testimony unmistakably demonstrates that respondent made the plan that resulted in placement. The lead opinion dodges this fact by asserting that "there is no evidence that respondent placed her child with any relative before the petition was filed" and that "respondent did not implement any of the potential plans prior to the filing of the petition." True, but irrelevant.
First, respondent could not have personally made a placement because she was in prison. Second, Sanders instructs that "an incarcerated parent can choose who will care for [her] children" while the parent is incarcerated, and that is good enough. Sanders , 495 Mich. at 421, 852 N.W.2d 524. The key is the parent's personal investment and involvement in the plan, not the ability to carry it out on her own. And to the extent that the lead opinion insinuates that three plans do not constitute "a plan," I respectfully disagree. Good planners make backup, contingency plans. That is exactly what happened here. The record reflects that respondent did whatever she could from prison to see to it that her daughter was placed in a stable and appropriate relative's home.
As in Ferranti , the jurisdictional error committed here was plain. The lead opinion asserts that even if plain error occurred, it did not affect respondent's substantial rights because the facts are "ambiguous" regarding whether respondent's brother was "willing and capable of providing for BB's care and custody for the duration of respondent's incarceration." I find no such ambiguity. A caseworker's note dated January 14, 2019, states that BB's "permanency planning goal is reunification with a concurrent planning goal of adoption .... [BB]’s placement is a pre-adoptive placement and her relatives state that they are willing to provide permanency if reunification efforts are unsuccessful. " (Emphasis added.) Respondent's family willingly brought BB to visit respondent in prison, a substantial drive from their homes, on more than one occasion. As in Ferranti , 504 Mich. at 31, 934 N.W.2d 610, the jurisdictional error seriously affected the fairness, integrity, or public reputation of the proceedings, as it "allowed the state to interfere with and then terminate the respondent[’s] fundamental right to parent [her] child."
Respondent's family evidently understands the concepts of rehabilitation and forgiveness. The Legislature also recognized that a parent convicted of a crime can grow and change by including in MCL 712A.19b(3)(h) the requirement that the state prove, clearly and convincingly, 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." In Mason , our Supreme Court explained that this statutory subsection is "forward-looking," and elucidated:
Significantly, just as incarceration alone does not constitute grounds for termination, a criminal history alone does not justify termination. Rather, 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 one of his own children, or if the parent committed murder, attempted murder, or voluntary manslaughter of one of his own children. [Mason , 486 Mich. at 161, 165, 782 N.W.2d 747 ].
This means that the Legislature, as well as our Supreme Court, has rejected the notions that an incarcerated parent's past is her future and that evidence of past misconduct suffices to terminate parental rights.
II. THE TERMINATION-HEARING ERRORS
The evidence adduced at the termination hearing was remarkable. Respondent not only adhered perfectly to her case service plan—she excelled. Respondent availed herself of all classes and services available to her, and she placed herself on the waiting list for others. Her prison record was clean; she had earned no "tickets." At the recommendation of the attorney who represented BB, respondent's family brought BB to visit respondent in the prison on three or four occasions. The circuit court's findings reflect the progress respondent had made:
Our partially dissenting colleague asserts that when released from prison "[r]espondent will be a complete stranger to this child who will have been living in a stable environment her entire life." The record refutes that statement.
However, since she's been incarcerated since January of 2018, she's done extremely well. And while in prison, it appears she's a model prisoner. She's been doing everything she could, doing all the classes she can, doing parenting classes....
* * *
It sounds like things are going very, very, very well in prison for her and that's a good thing. And what's also telling of the type of family she has is that even she says here today that her goal would be once she's released from prison, that she'd probably return to her father's home. That's where her son is apparently and where this crime occurred that caused her to go to prison. And so her family has apparently forgiven her. She's indicated that her mother, her father, brother or sister brings [BB] up for parenting time with her and that she's apparently mended whatever damage
she's done with her family which is a good thing and it really shows what kind of a strong family they have ....
* * *
The parent's compliance with [the] case service plan has been great as far as [respondent] has been concerned.... [S]ince this child has come into care which was shortly after birth in September of 2018, she has done everything possible that she could. [Respondent] has done every program that she can get her hands on while she's institutionalized. She's been doing the visits that she could. Her parenting visitation with the child, the history of visitation has been extremely good. Any time she can, she's there, and has been showing she's trying to do what she can to better herself and if at all possible to have the child returned to her care. So she's done very well with compliance with the case service plan as well as visitation.
Judges of this Court do not often read comments like these for the simple reason that model respondents retain their parental rights. The reason that respondent lost hers comes down to one fact: her incarceration. As the lead opinion explains, Mason teaches that in light of her efforts to arrange for placement of her child, her incarceration—and MCL 712A.19b(3)(h) —did not supply an appropriate ground for termination.
The partial dissent insists that termination was warranted based on respondent's "psychological status" and her previous "treatment plan failures." As to the first, the partial dissent quotes extensively from a psychological report apparently prepared while respondent was incarcerated in the county jail before her criminal case concluded. The report itself is not part of the record. Excerpts from it were read aloud by a DHHS worker at the preliminary hearing. The report has little to contribute in this case, as it was written before the then 18-year-old respondent turned her life around. And because it is not evidence of record, it supplies no legal basis for termination.
More troubling is the partial dissent's reliance on respondent's past as a predictor of her future. This Court has emphasized that the doctrine of anticipatory neglect, on which the partial dissent relies, does not suffice to prove a statutory ground for termination. See In re LaFrance Minors , 306 Mich. App. 713, 858 N.W.2d 143 (2014). In LaFrance , we stressed that age and other differences between children decrease the probative value of a negative inference arising from a parent's poor treatment of one child. Id. at 730-731, 858 N.W.2d 143. We reiterated the same common-sense principles more recently in In re Kellogg , 331 Mich. App. 249, 952 N.W.2d 544 (2020). I would add that the doctrine of anticipatory neglect also fails to take into account that parents can grow and change. That's why the Legislature mandates services in all but the rarest of situations. If our Legislature believed that past is prologue, it would not have wasted the taxpayers’ money on helping struggling parents achieve meaningful and lasting change. And to hold that an incarcerated parent who has committed a "horrendous" crime can never be redeemed simply eviscerates Mason .
Finally, I believe that the circuit court additionally erred by finding that termination served BB's best interests. First, no evidence was presented that BB's custodians favored or even sought termination of respondent's rights. To the contrary, the evidence depicted a family in which BB would be safe and well cared for even if respondent maintained her parental rights while incarcerated. A guardianship, if one were established, would continue that protection even after respondent's release. Second, Mason instructs that "placement with relatives weighs against termination under MCL 712A.19a(6)(a)." Mason , 486 Mich. at 164, 782 N.W.2d 747 (emphasis added). The circuit court applied the opposite presumption: that because BB lived with relatives, respondent's inability to care for the child supported termination of her rights. Had the circuit court properly applied the Mason presumption, it would have concluded that termination of respondent's parental rights did not serve BB's best interests.
III. CONCLUSION
Exercising their powers as rulemakers, the Legislature and our Supreme Court have insisted that a court identify with some particularity the grounds and the evidence for depriving a parent of the care and custody of his or her child. Those rules mandate specific findings at both the adjudication and dispositional stages that were not made here. The rules help ensure the fairness and accuracy of the process. Because it violated a variety of these rules, the circuit court lacked the authority to take jurisdiction and to terminate respondent's parental rights.
Rules are important, but this case also presents a more fundamental problem. A court may not take jurisdiction or terminate an incarcerated parent's rights when the parent has planned for their child's care and custody. Respondent made a plan deemed highly appropriate by the DHHS and the circuit court. Her child is thriving. We are left with this: respondent's rights were terminated because she is incarcerated. As Mason and a host of cases from this Court have held, incarceration alone is not an adequate ground for either jurisdiction or termination.
I would vacate both the adjudication and termination orders and on remand would permit the DHHS to file a new petition if and only if a jurisdictional ground actually exists.