In Re C J McCallum Minor

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

FOR PUBLICATION

November 21, 2024

10:08 AM

In re CJM, Minor.

No. 367565

Oceana Circuit Court

Family Division

LC No. 21-015038-NA

Before: GADOLA, C.J., and K. F. KELLY and MARIANI, JJ.

MARIANI, J.

Respondent appeals by right the trial court’s order terminating his parental rights to his

minor child, CJM, pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication

continue to exist) and (j) (reasonable likelihood of harm if returned to parent).1 Respondent does

not challenge the trial court’s determination that these statutory grounds for termination were

present, but contends the court clearly erred in determining that termination was in CJM’s best

interests. Because, in making that determination, the trial court failed to duly consider whether

CJM was placed with a relative at the time of termination, we vacate the trial court’s best-interests

determination and remand for further consideration of CJM’s best interests in light of his

placement.

I. BACKGROUND

These child-protective proceedings began on December 7, 2021, when the Department of

Health and Human Services (DHHS) filed a petition seeking removal of CJM from respondent’s

care and jurisdiction over the minor child. DHHS alleged that, since November 2020, CJM had

been living with Cassondra Pulsipher, who did not have the proper legal authority to provide care

1

The Department of Health and Human Services (DHHS) also requested termination under MCL

712A.19b(3)(c)(ii) (failure to rectify other conditions), but the trial court did not find that this

statutory basis had been proven by clear and convincing evidence.

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for CJM; CJM was behind on his medical checkups and vaccines; and CJM was recently taken to

the hospital by Pulsipher for emergency treatment after he ingested methamphetamine while in his

mother’s care.2 DHHS alleged that respondent could not provide immediate care for CJM because

he was incarcerated, and he had made no arrangements to ensure that CJM received proper care

while he was incarcerated. DHHS could not formally recommend that CJM be placed with

Pulsipher because she was not related to CJM and DHHS’s policies at that time required it to

“utilize a licensed foster home” if it was unable to “find an appropriate relative,” but DHHS

employees indicated that Pulsipher had provided CJM adequate care since his birth in November

2019 and would continue to do so if the court were to directly place CJM in her care.

The trial court granted DHHS’s request to remove CJM from respondent’s care, and it

directly placed CJM in Pulsipher’s care. Rather than authorize DHHS’s petition, however, the

trial court adjourned the proceedings; this was largely because CJM’s mother had filed a motion

to establish Pulsipher as CJM’s limited legal guardian immediately prior to the proceedings, which

respondent supported, and the matter was still pending before the court. CJM’s mother ultimately

did not appear for the guardianship hearing, however, so the motion did not move forward. The

court authorized DHHS’s petition in February 2022, and it ordered that CJM remain placed with

Pulsipher and that respondent, who had been released from prison shortly after the preliminary

hearing in December 2021, receive supervised parenting time with CJM.

The trial court conducted an adjudication hearing in May 2022, and respondent entered a

plea to the court’s exercise of jurisdiction pursuant to MCL 712A.2(b)(1) (reason to believe child

at substantial risk of harm) and (b)(2) (unfitness of parental home). Respondent pleaded no contest

to DHHS’s allegations that he was incarcerated at the time that the petition was filed and that he

was unable to provide for CJM’s immediate needs. The trial court exercised jurisdiction,

continued respondent’s supervised parenting time, and ordered DHHS to engage in reasonable

efforts toward reunification. DHHS created a case service plan, which the trial court adopted. The

trial court ordered respondent to participate in and benefit from substance-abuse treatment and a

parenting education and supportive visitation program. The court also ordered respondent to

complete substance-abuse and psychological evaluations, submit to random drug screenings,

obtain and maintain suitable housing, and participate in parenting time.

Throughout the proceedings, respondent struggled with participation in the case service

plan. Respondent was referred to substance-abuse services at least five times, but he never

attended the services. Respondent participated in random drug screens, all of which were

completed immediately prior to parenting time, but he consistently tested positive for

methamphetamine. Respondent was referred to a program to assist him in obtaining suitable

housing, but the service was terminated due to his failure to participate. Respondent was

subsequently referred to another program for assistance in housing and had reported that he had

obtained suitable housing, but, upon visiting the home, respondent’s parole officer determined that

the home was uninhabitable. Respondent was referred to a supportive foster care visitation and

education program to assist him with parenting skills, but he missed four appointments and faced

2

CJM’s mother was a respondent throughout this case, and her parental rights to CJM were also

terminated by the trial court. CJM’s mother is not a party to this appeal.

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dismissal from the program for lack of participation. Respondent generally acted appropriately at

parenting times and demonstrated a bond with CJM, but his attendance was inconsistent, and he

stopped attending parenting times entirely in July 2022. Of the parenting times that respondent

attended, he was often under the influence of methamphetamine. CJM struggled significantly with

respondent’s inconsistency, and he demonstrated more emotional stability after respondent

stopped attending parenting times entirely. By mid-August 2022, respondent had been

reincarcerated for new criminal charges and various parole violations after he had been found

trespassing with drug paraphernalia and “a BB gun . . . with the red cap taken off the top of it” in

his possession. It was unknown at the time when respondent would be released from prison.

On October 31, 2022, DHHS—at the trial court’s direction—filed a supplemental petition

requesting termination of respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (c)(ii),

and (j). At the termination hearing in February 2023, respondent’s caseworker testified that DHHS

had provided numerous services to respondent, but respondent failed to participate in or benefit

from the services. Respondent was repeatedly referred to substance abuse services and completed

some initial assessments, but he never “follow[ed] through with the actual service

recommendations.” Though he demonstrated sobriety for approximately two months following

his release from prison, respondent consistently tested positive for methamphetamine since March

2022. Respondent reported that he was participating in a substance abuse program following his

reincarceration in August 2022, but his caseworker was unable to verify his participation in the

program. Respondent was incarcerated for a substantial portion of the case, but during the eight

months that he was not incarcerated, he never obtained suitable housing. Respondent frequently

jumped between temporary living arrangements, which he acknowledged were inappropriate for

CJM. Respondent briefly lived in a trailer, but his parole officer determined that the trailer was

uninhabitable and that he was residing on the property without the permission of the property

owners. Though respondent demonstrated “some benefit” from the supportive foster care

visitation and education program, he never completed the program. Respondent’s outward

behavior was appropriate during parenting times, but he repeatedly attended parenting times under

the influence of methamphetamine. Respondent inconsistently attended parenting times until he

stopped attending them entirely in July 2022.

Respondent’s caseworker testified that termination was in CJM’s best interests. The

caseworker acknowledged that there was “some bond” between respondent and CJM and that CJM

appeared to recognize respondent as his father, but she emphasized that CJM had “never been

under the care of [respondent] since he was born,” whereas Pulsipher had been CJM’s primary

caregiver since birth. CJM also had a very close bond with Pulsipher and considered her to be his

mother, and Pulsipher expressed interest in adopting CJM. Respondent’s counsel inquired about

the possibility of a permanent guardianship with Pulsipher, but the caseworker stated that DHHS

believed that Pulsipher’s adoption of CJM was in CJM’s best interests and that DHHS would not

consider guardianship until it had exhausted the possibility of adoption.

Following the termination hearing, the referee recommended termination of respondent’s

parental rights. The referee found that statutory grounds for termination pursuant to MCL

712A.19b(3)(c)(i) and (j) were established by clear and convincing evidence, repeatedly

emphasizing that respondent failed to participate in or benefit from the services provided by

DHHS. The referee also found that termination of respondent’s parental rights was in CJM’s best

interests. The referee found that respondent’s continued substance abuse affected his ability to

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parent, noting that he inconsistently attended parenting times, attended many parenting times under

the influence of methamphetamine, and was currently reincarcerated due to criminal behavior

related to his substance abuse. The referee noted that respondent’s inconsistent attendance at

parenting times greatly affected CJM’s emotional stability, and she found that respondent could

not offer stability to CJM at that time given his continued substance abuse and frequent periods of

incarceration. The referee recognized that there was a bond between CJM and respondent but

found that the bond was “minimal” and greatly outweighed by CJM’s need for an “appropriate,

drug free, and consistent” environment. The referee recommended that CJM remain placed with

Pulsipher under DHHS’s supervision until her adoption or guardianship of CJM could be finalized.

The trial court adopted the referee’s recommendations and entered an order terminating

respondent’s parental rights in February 2023. This appeal followed.

II. STANDARD OF REVIEW

We review for clear error a lower court’s decision that termination is in a child’s best

interests. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). A finding is

clearly erroneous if, even if some evidence supports the finding, the reviewing court is nevertheless

left with the firm and definite conviction that the lower court made a mistake. In re Mason, 486

Mich 142, 152; 782 NW2d 747 (2010). “[W]hether termination of parental rights is in the best

interests of the child must be proved by a preponderance of the evidence.” In re Moss, 301 Mich

App 76, 90; 836 NW2d 182 (2013). This Court gives deference “to the special ability of the trial

court to judge the credibility of witnesses.” In re Medina, 317 Mich App 219, 227; 894 NW2d

653 (2016) (quotation marks and citation omitted). This Court “review[s] de novo the

interpretation and application of statutes and court rules.” Mason, 486 Mich at 152.

III. BEST INTERESTS

On appeal, respondent does not challenge the trial court’s finding that the statutory grounds

for termination of his parental rights were established by clear and convincing evidence and,

instead, only challenges the trial court’s finding that termination was in CJM’s best interests.

When determining whether termination is in the best interests of the child, the court should

place its “focus on the child rather than the parent.” In re Schadler, 315 Mich App 406, 411; 890

NW2d 676 (2016). “The trial court should weigh all the evidence available to determine the

children’s best interests,” and it should consider a variety of factors, including “the child’s bond

to the parent, the parent’s parenting ability, the child’s need for permanency, stability, and finality,

and the advantages of a foster home over the parent’s home.” In re White, 303 Mich App 701,

713; 846 NW2d 61 (2014) (quotation marks and citation omitted). “The trial court may also

consider a parent’s history of domestic violence, the parent’s compliance with his or her case

service plan, the parent’s visitation history with the child, the child[]’s well-being while in care,

and the possibility of adoption.” Id. at 714. “The trial court may also consider how long the child

was in foster care or placed with relatives, along with the likelihood that the child could be returned

to the parents’ home within the foreseeable future, if at all.” In re Mota, 334 Mich App 300, 321;

964 NW2d 881 (2020) (quotation marks, citation, and alteration omitted). “[A] child’s placement

with relatives is a factor that the trial court is required to consider when making its best-interests

determination, and a child’s placement with relatives weighs against termination.” Id. (quotation

marks and citations omitted).

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Respondent argues, among other things,3 that the trial court clearly erred by failing to

consider whether Pulsipher was a “relative” of CJM as defined by MCL 712A.13a(1)(j), and

therefore whether CJM’s placement with her weighed against termination of his parental rights.

We agree.

MCL 712A.13a(1)(j)’s definition of “relative” was recently amended, with its new version

taking effect approximately four months prior to the termination hearing in this case. See 2022

PA 200, effective October 7, 2022. Relevant to this case, the amendment expanded the definition

of “relative” to include certain “fictive kin”—namely, any “individual who is at least 18 years of

age” and is “[n]ot related to a child within the fifth degree by blood, marriage, or adoption but who

has a strong positive emotional tie or role in the child’s life or the child’s parent’s life if the child

is an infant, as determined by the department.” MCL 712A.13a(1)(j)(ii). See also, e.g., In re

Dixon (On Reconsideration), ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No.

363388); slip op at 9 n 2 (noting that the significant other of the child’s father qualified as the

child’s “ ‘fictive kin’ ” relative under the amended version of MCL 712A.13a(1)(j)).

The trial court did not consider whether Pulsipher fit the “fictive kin” definition of

“relative” within MCL 712A.13a(1)(j)(ii), but the record in this case, as it now stands, suggests

that she did. It was undisputed throughout the proceedings that Pulsipher regularly cared for CJM

since birth, and the caseworker testified at the termination hearing that CJM considered Pulsipher

to be his mother. DHHS specifically requested that the court directly place CJM in Pulsipher’s

care due to their close relationship, and the trial court itself had referred to Pulsipher as CJM’s

“fictive kin.” There is thus ample basis in the present record to conclude that Pulsipher constituted

a “relative” under the version of MCL 712A.13a(1)(j) applicable when respondent’s parental rights

were terminated—which, in turn, would mean that CJM was in the care of a relative at the time of

termination, and the trial court, when making its best-interests determination, was required to

expressly consider CJM’s placement with Pulsipher as weighing against termination. See Mota,

334 Mich App at 321.4 These considerations were wholly absent from the trial court’s best-

3

In light of our disposition here, we need not address respondent’s other criticisms of the trial

court’s best-interests determination. We note, however, that we do not presently see particular

merit in them. Respondent, for instance, contends that the trial court failed to duly recognize that

there was no permanency benefit to CJM in terminating his parental rights, stressing that he had a

bond with CJM, posed no threat of harm to CJM, and behaved appropriately during parenting

times. Respondent maintains that, instead of terminating his rights, the trial court should have left

them intact while pursuing a guardianship with Pulsipher. The record, however, reflects that the

trial court considered respondent’s relationship with and effect on CJM, and that the possibility of

a guardianship was discussed throughout the proceedings. Respondent’s criticisms do not reveal

a clear error in how the trial court handled these discrete matters. That said, for the reasons

discussed herein, the trial court’s failure to duly consider the role of relative placement rendered

its best-interests assessment erroneously incomplete, and remand is necessary for the court to

properly account for that consideration and reassess if termination is in CJM’s best interests.

4

Our dissenting colleague posits that, because CJM was an infant when first placed with Pulsipher,

the emotional ties between Pulsipher and CJM and the role she played in CJM’s life do not bear

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interests determination. And, as this Court has made clear, “[a] trial court’s failure to explicitly

address whether termination is appropriate in light of the child[]’s placement with relatives renders

the factual record inadequate to make a best-interest determination and requires reversal.”

Olive/Metts Minors, 297 Mich App at 43. Accordingly, we must vacate the trial court’s best-

interests determination and remand for further consideration of CJM’s best interests in light of his

placement with Pulsipher.

IV. CONCLUSION

We vacate the trial court’s best-interests determination and remand for further proceedings

consistent with this opinion. We retain jurisdiction.

/s/ Philip P. Mariani

/s/ Michael F. Gadola

on whether she constitutes a “relative” under MCL 712A.13a(1)(j)(ii); instead, “the appropriate

analysis . . . would be the existence of strong emotional ties between Pulsipher and respondents.”

We disagree with this construction of the statute. Under MCL 712A.13(1)(j)(ii)’s plain terms,

what matters to the “relative” assessment is whether the individual in question has (1) “a strong

positive emotional tie or role in the child’s life or” (2) “a strong positive emotional tie or role in . . .

the child’s parent’s life if the child is an infant.” (Emphasis added.) The statute does not purport

to limit the first of these options only to non-infant children (instead making clear through its

second option that the term “child” comprises infants), or to categorically foreclose consideration

of the connection between an infant child and an individual in assessing that individual’s status as

a “relative.” Instead, the statute creates two alternative paths for an individual to attain “relative”

status when the child at issue is an infant—through the individual’s connection with the life of the

infant child, or through the individual’s connection with the life of the infant child’s parent.

Accordingly, Pulsipher’s “strong positive emotional tie or role in [CJM]’s life” would be enough

in itself for her to constitute a “relative” under MCL 712A.13a(1)(j)(ii), regardless of the existence

of any such tie or role in respondent’s life.

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Court of Appeals, State of Michigan

ORDER

Michael F. Gadola

In re C J McCallum Minor Presiding Judge

Docket No. 367565 Kirsten Frank Kelly

LC No. 21-015038-NA Philip P. Mariani

Judges

For the reasons stated in the opinion issued with this order, we REMAND this case for

further proceedings. We retain jurisdiction. After the remand proceedings conclude, we will review the

decisions that the trial court made during those proceedings and consider any remaining issues in this

appeal. Any challenges to the trial court’s decisions on remand must be raised in this appeal. Therefore,

the parties and the trial court must not initiate a new appeal from an order entered on remand within the

scope of this appeal. The Clerk of the Court is directed to reject the initiation of a new appeal from such

an order.

Appellant must initiate the proceedings on remand within 28 days of the Clerk’s

certification of this order, and the trial court must prioritize this matter until the proceedings are concluded.

As stated in the accompanying opinion, the trial court must reconsider whether the termination of

respondent's parental rights is in CJM's best interests in light of CJM's placement with Cassondra Pulsipher

and the definition of "relative" under MCL 712A.13a(1)(j)(ii). The proceedings on remand are limited to

this issue.

The parties must serve copies of their filings in the trial court on this Court. Appellant

must file with this Court copies of all orders entered on remand within seven days of entry.

Appellant must ensure the transcript of all proceedings on remand is filed in the trial court

and this Court within 21 days after completion of the proceedings.

_______________________________

Presiding Judge

A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on

November 21, 2024

Date Chief Clerk