In re Moss
- Reporters:
- , , ,
- Before:
- Owens
Lead Opinion
Respondent appeals as of right an order terminating her parental rights to her youngest daughter and her son. The trial court found, for the reasons stated in the referee’s findings of fact and conclusions of law, that there was clear and convincing evidence to terminate respondent’s parental rights under
First, respondent argues that there was not clear and convincing evidence to terminate her parental rights pursuant to
The trial court terminated respondent’s rights under
The court may terminate a parent’s parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
[[Image here]]
(g) The parent, without regard to intent, fails to provide proper care or custody for the child 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.
[[Image here]]
(j) There 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.
The record shows that respondent’s substance abuse affects her ability to provide proper care and custody for the children.
Moreover, the facts do not show that there is a reasonable expectation that respondent would be able to provide proper care and custody within a reasonable amount of time considering the children’s ages. She has a long history of mental illness that has been difficult to manage. She repeatedly experienced psychotic episodes, including auditory hallucinations in which she was told to harm her children. Although respondent was seeking treatment, the testimony at trial established that previous attempts at treatment were unsuccessful. She had been admitted at least three times for psychiatric care at hospitals in Michigan, Illinois, and Florida, and respondent testified about difficulties arising when her medications ran out. She also testified about numerous problems in adjusting her medications to successfully control her symptoms.
In addition, the record shows that there is a reasonable likelihood, based on the conduct or capacity of respondent, that the children would be harmed if returned to respondent’s home. Respondent has a long history of substance abuse and mental illness, and her treatment has been unsuccessful for both. At the termination hearing, it was undisputed that respondent had thoughts of harming her youngest daughter and that she acted on those thoughts by attempting to suffocate her. Although respondent testified that she no longer had thoughts of harming her daughter since she received the proper medication, the trial court found that the risk of harm to the children would be too great if respondent went off her medication for any reason. Furthermore, respondent’s oldest daughter had previously been removed and placed in foster care because respondent had thoughts of harming her. The record shows that respondent falsified drug tests in order to regain custody and that after regaining custody, respondent continued to have thoughts of harming her daughter.
Given the facts of record, we conclude that the trial court did not clearly err in finding by clear and convincing evidence statutory grounds for termination under
Next, respondent argues that petitioner failed to prove by clear and convincing evidence that termination of her parental rights was in the best interests of the children. We disagree. Although respondent asserts that the trial court must find by clear and convincing evidence that termination is in the best interests of the children, there is no statute, court rule, or caselaw requiring such. The statute clearly states that the statutory grounds for termination must be proved by clear and convincing evidence, but does not provide a standard of proof for the best-interest determination.
If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child’s best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.
Before it was amended by 2008 PA 199, the statute read:
If the court finds that there are grounds for termination of parentalrights, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made, unless the court finds that termination of parental rights to the child is clearly not in the child’s best interests. [ MCL 712A.19b(5) , as amended by 2000 PA 232 (emphasis added).]
Accordingly, because of the statutory language at the time, our Supreme Court concluded that once the trial court finds that there are statutory grounds for termination, the trial court must terminate parental rights unless it finds by clear evidence that termination is not in the child’s best interests. Trejo, 462 Mich at 354. However, because the statute as amended in 2008 does not include the term “clearly,” the clear-evidence standard no longer applies to the best-interest determination.1 Thus, the current statute does not provide a standard of proof. For the reasons that follow, we hold that the preponderance of the evidence standard applies to the best-interest determination.
Initially, we note that in civil cases, the Legislature’s failure to spell out a standard of proof would usually require application of the preponderance of the evidence standard. Residential Ratepayer Consortium v Pub Serv Comm, 198 Mich App 144, 149; 497 NW2d 558 (1993). However, termination-of-parental-rights cases are not strictly civil cases, as recognized by the United States Supreme Court in Santosky v Kramer, 455 US 745, 762; 102 S Ct 1388; 71 L Ed 2d 599 (1982). Rather, they bear “many of the indicia of a criminal trial.” Id. Further, the Michigan Court Rules, which are adopted by our Supreme Court, are silent on the standard of proof required for the best-interest determination, as is Michigan caselaw. See MCR 3.977(E)(4), (F)(1)(c), and (H)(3)(b). So in the absence of explicit Michigan law on the issue, we must determine whether the preponderance of the evidence standard can be constitutionally applied to the best-interest determination. To do so, we look for guidance in Santosky, the leading case from the United States Supreme Court regarding the requisite standard of proof in termination-of-parental-rights proceedings.
Santosky examined the constitutionality of the state of New York’s parental-rights-termination statute. San-tosky, 455 US at 748-749. Specifically, Santosky analyzed whether New York’s statute, which authorized the trial court to terminate a parent’s rights to the child if the state proved by a fair preponderance of the evidence that the parent had permanently neglected the child, satisfied the due-process requirements of the Fifth and Fourteenth Amendments. See id. at 748-751. At the time, New York’s termination proceedings consisted of two parts: (1) a fact-finding hearing to prove permanent neglect and (2) a dispositional hearing to determine what placement was in the child’s best interests. Id. at 748. Under New York’s statute, once the state established permanent neglect by a fair preponderance of the evidence at the fact-finding hearing, the parent’s rights to the child could be terminated if termination was determined to be in the best interests of the child. Id. at 748-749.
To determine the requisite standard of proof that due process would require for the fact-finding stage of the termination proceeding, the Court weighed the three
identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Mathews, 424 US at 335.]
First, the Santosky Court noted that the private interest affected in a termination proceeding is “commanding,” because victory by the state at the fact-finding hearing declares the parent unfit to raise the child and makes termination of parental rights possible. San-tosky, 455 US at 758-760. Thus, the private interest affected favors a heightened standard of proof. Id. at 761. Second, the Court determined that the risk of an erroneous termination of parental rights is severe and that a heightened standard of proof would alleviate that risk more than a preponderance of the evidence standard would. Id. at 764-765. Finally, the Court concluded that a heightened standard of proof would not impair the state’s interests “in preserving and promoting the welfare of the child” and “in reducing the cost and burden of such proceedings.” Id. at 766-768. Thus, the Court held that the clear and convincing evidence standard is the minimal constitutionally mandated standard that must be applied at the fact-finding stage of termination proceedings. Id. at 769.
In Michigan, termination proceedings consist of two stages, which are identical in function to the New York stages discussed in Santosky. First, we apply a clear and convincing evidence standard to determine whether there are statutory grounds for termination.
Under the first Mathews factor, there are two private interests affected in a proceeding to terminate parental rights: (1) the parent’s fundamental liberty interest in the care, custody, and management of the child and (2) the child’s interest in a normal family home. Santosky, 455 US at 758-759. At the statutory-grounds stage in a termination proceeding, the child and the parent “share a vital interest in preventing erroneous termination
Further, the history of Michigan’s termination-of-parental-rights statute indicates that the focus at the best-interest stage has always been on the child, not the parent. Before 1994, while the statute and court rules were silent regarding whether termination had to be in the child’s best interests, caselaw held that a juvenile disposition, including termination of parental rights, must be made in the child’s best interests. See In re Franzel, 24 Mich App 371, 377; 180 NW2d 375 (1970). In 1994, the statute was amended to add language requiring the trial courts to terminate parental rights once a statutory ground was proved, unless it was clearly not in the best interests of the child.
The second Mathews factor requires us to explore the risk of an erroneous deprivation of the child’s and the parent’s interests if we were to apply a preponderance of the evidence standard and the probable value, if any, of a clear and convincing evidence standard. See San-tosky, 455 US at 761. Because the focus is on the parent at the statutory-grounds stage, a clear and convincing evidence standard reduces the risk of an erroneous determination that a
The final Mathews factor requires us to examine the governmental interests at stake, which are “a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings.” Santosky, 455 US at 766. The use of a clear and convincing evidence standard at the best-interest stage could impose an increased financial burden on the state because additional evidence might be required to meet the higher standard of proof. In addition, and more importantly, the use of a clear and convincing evidence standard at the best-interest stage would impair the state’s parens patriae interest in preserving and promoting the welfare of the child. The state’s parens patriae interest in terminating parental rights arises after the parent has been found unfit. Id. at 767 n 17. Thus, once a statutory ground for termination is established, i.e., the parent has been found unfit, the state has a substantial interest in protecting the welfare of the child. The application of a heightened standard of proof—clear and convincing evidence—hinders the state’s interest in protecting the welfare of the child.
Thus, in light of the foregoing analysis, we hold that whether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence.2
In this case, the record shows that respondent acted on her thoughts of harming her youngest daughter by attempting to suffocate her numerous times. The record also shows that she brought the children with her while purchasing drugs, that her son had seen her using crack cocaine before, and that she did not have stable housing. Further, the record shows that given her history, her ultimate success regarding her substance abuse and mental health treatments is uncertain at best. Accordingly, the petitioner proved by a preponderance of the evidence that termination was in the children’s best interests.
(1) the original, or amended, petition contains a request for termination;
(2) at the trial or plea proceedings, the trier of fact finds by a preponderance of the evidence that one or more of the grounds for assumption of jurisdiction over the child underMCL 712A.2(b) have been established;
(3) at the initial disposition hearing, the court finds on the basis of clear and convincing legally admissible evidence that had been introduced at the trial or plea proceedings, or that is introduced at the dispositional hearing, that one or more facts alleged in the petition:
(a) are true, and
(b) establish grounds for termination of parental rights underMCL 712A.19b(3)(a) , (b), (d), (e), (f), (g), (h), (i), (j), (k), (Z), (m), or (n);
(4) termination of parental rights is in the child’s best interests.
In this case, the initial petition requested termination, the trial court found by a preponderance of the evidence that there were grounds to assume jurisdiction, and the trial court found by clear and convincing evidence that at least one of the grounds for termination had been established. Further, the trial court found that it was in the best interests of the children for respondent’s rights to be terminated. Therefore, all the requirements of MCR 3.977(E) were met and no reunification efforts were required.
Affirmed.
MURRAY, EJ., concurred with OWENS, J.
Notes
Assuming, without deciding, that “clear evidence” is similar to what is required under the clear and convincing evidence standard, the pre-2008 statute provided a heightened standard of proof to prevent termination rather than to permit termination.
We note that this determination is further supported by the fact that the Legislature did not include a standard for the best-interest determination when it amended the statute, as it did for the establishment of a statutory ground for termination. Had the Legislature intended the standards to be the same, it could have included such language.
Concurrence Opinion
(concurring). I join in the majority’s conclusions that the trial court did not err by finding that there was clear and convincing evidence to terminate respondent’s parental rights under
In Mathews, the United States Supreme Court implemented a balancing test to be used to determine whether certain procedures were adequate to meet the requirements of due process:
[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and thefiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Id. at 335.]
In my view, Mathews is inapplicable here for two reasons. First, respondent did not make a due-process challenge on appeal. Instead, respondent erroneously cites
Second, even if a due-process challenge were properly before us, Mathews remains inapplicable because once grounds for termination are established by clear and convincing evidence under
Because a parent against whom there exists clear and convincing evidence to terminate parental rights no longer has a liberty interest including the right to custody and control of the children, I would conclude that this case should be resolved solely in accordance with the relevant statutes and court rules. The general rule in a civil case is that when an applicable statute “does not spell out a particular standard of proof,” “the usual ‘preponderance of the evidence’ quantum of proof in civil cases is therefore considered to apply.” Residential Ratepayer Consortium v Pub Serv Comm, 198 Mich App 144, 149; 497 NW2d 558 (1993). In the context of a termination-of-parental-rights proceeding, the Supreme Court recognized and affirmed this principle by its adoption of MCR 3.972(C)(1), which provides:
Except as otherwise provided in these rules, the rules of evidence for a civil proceeding and the standard of proof by a preponderance of evidence apply at trial, notwithstanding that the petition contains a request to terminate parental rights.
Since MCR 3.977(E)(4), the court rule specifically applicable to this case, fails to provide a standard of proof relevant to a trial court’s best-interest determination, the preponderance of the evidence standard
For the reasons stated, I agree that the judgment of the trial court should be affirmed. However, rather than using the Mathews due-process analysis, I would affirm the best-interest findings of the trial court as having been made in a manner consistent with the plain language of