in Re M Downing Minor
334925
Mich. Ct. App.Jul 11, 2017Background
- Mother (respondent) had no contact with child MD since about 2010 and had not sought custody or parenting time since 2011; she provided no financial or material support.
- MD lived with his father (petitioner) and petitioner’s mother for about six years; MD has significant special-care needs (benign hydrocephalus; possible autism).
- Respondent had multiple domestic-violence convictions and was sentenced as a habitual offender on subsequent convictions.
- Petitioner and other witnesses testified to respondent’s history of violent behavior in the presence of her children (including swinging a frying pan while MD was an infant).
- The trial court exercised jurisdiction under MCL 712A.2(b)(1); terminated respondent’s parental rights under MCL 712A.19b(3)(a)(ii), (g), (j), and (n)(ii); and found termination was in MD’s best interest.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Jurisdiction under MCL 712A.2(b)(1) | Court properly had jurisdiction because respondent abandoned/failed to support MD | Trial court failed to state preponderance findings on the record / procedure defects | Affirmed: written order and on-the-record findings satisfied MCR 3.977(I)(1); abandonment/support established by preponderance |
| L‑GAL called as fact witness / absences | L‑GAL testimony was admissible when called by respondent; absences were not respondent’s ground to challenge | Trial court erred by allowing L‑GAL as fact witness and by permitting absences | Respondent waived challenge to calling L‑GAL (she called the witness); respondent lacks standing to challenge L‑GAL performance/attendance on behalf of child |
| Statutory grounds for termination (subsections (a)(ii), (g), (j), (n)(ii)) | Clear and convincing evidence supported desertion, failure to provide care, risk of harm if returned, and listed-offense convictions/habitual-offender sentencing | Court improperly relied on incarceration and/or residual facts; contentions that child was left with father negates abandonment | Affirmed: clear and convincing evidence supported each statutory ground; convictions and violent history satisfied (n)(ii); abandonment/neglect supported despite child living with father |
| Best‑interest determination | MD had stable, caring placement with petitioner; respondent’s violence and history of using children in coercive ways make termination necessary | Termination was unnecessary given relative placement; maternal bond could be restored | Affirmed: preponderance of the evidence supports termination — MD’s needs, lack of bond, safety concerns, and respondent’s instability favored termination |
Key Cases Cited
- In re BZ, 264 Mich. App. 286 (2004) (standard: jurisdiction established by preponderance; appellate review for clear error)
- In re White, 303 Mich. App. 701 (2014) (clear-error standard for termination facts)
- In re VanDalen, 293 Mich. App. 120 (2011) (plain-error review for unpreserved procedural claims)
- In re Mason, 486 Mich. 142 (2010) (incarceration alone is not grounds for termination)
- In re Hall, 188 Mich. App. 217 (1991) (abandonment/neglect can exist despite child being placed with relatives)
- In re Laster, 303 Mich. App. 485 (2013) (desertion for 91+ days supports termination under MCL 712A.19b(3)(a)(ii))
- In re Hudson, 294 Mich. App. 261 (2011) (conduct toward one child is probative of likely conduct toward another)
- In re Olive/Metts Minors, 297 Mich. App. 35 (2012) (best-interest factors and consideration of relative placement)