In Re Trejo Minors

Cavanagh, J.

(concurring in part and dissenting in part). I concur in parts i-hi of the majority opinion. However, I disagree that the probate court did not clearly err in finding that petitioner had proven statutory grounds for termination by clear and convincing evidence.

FACTS

Defense counsel said it best when he described the situation presented wherein respondent “got on a train and she was never able to get off.” After her divorce, respondent found herself financially and emotionally unable to care for her children. After seeking help from family and her former husband, who were unable or unwilling to assist, respondent turned to the Department of Social Services. From there, she was required to take steps toward reuniting with her children. As the probate court points out, *366 she complied with most of these steps. She completed parenting classes, attended counseling, maintained employment, attended all court hearings, and participated in psychological evaluations. Strikes against her include missed counseling appointments, failure to maintain adequate housing, failure to discipline the children during visits, and failure to present a plan for reunification. Notably missing from this list is any form of abuse—physical or emotional. Also absent are facts showing neglect or substance abuse. Upon review of the facts stressed by the probate court, it appears that respondent’s financial hurdle was the most difficult to overcome. The consequences of this fact, coupled with an erroneous application of the applicable statutes, are what ultimately led to termination.

ERRONEOUS PROCEDURE

As the majority notes, there was confusion about how to proceed with the termination and best interests hearings. The probate court determined in advance that it would proceed with the termination hearing and later separately consider the best interests evidence. I agree that the probate court understandably relied on the erroneous statutory interpretation provided in In re Hall-Smith, 222 Mich App 470 ; 564 NW2d 156 (1997).

As explained by the majority, that case placed a rebuttable presumption on the respondent to go forward with evidence that termination is clearly not in the child’s best interests. This procedure may have led both parties to wait to produce evidence until the *367 best interests hearing. 1 This would explain the petitioner’s decision to provide only one witness in support of its petition to terminate parental rights, and would explain the respondent’s failure to produce any witnesses or evidence at the termination stage. At the best interests hearing, however, both parties produced several witnesses in attempts to persuade the court.

This error is significant in that the court must find, at the termination stage, clear and convincing evidence that the statutory grounds for termination have been proven by the petitioner. We determined today that the best interests determination merely provides the court with an opportunity to find that termination is clearly not in the child’s best interests. Ante at 352. In this context, review of the probate court’s determination to terminate should be based only on facts relied upon by the court in finding that statutory grounds for termination were proven. I would hold that the facts provided by the single witness’ testimony were plainly insufficient and, thus, the court’s findings were clearly erroneous. Although this error might have been prevented by considering all evidence produced by both parties, the court, in ruling that it would hear best interest evidence at a later time, relied on insufficient evidence.

*368 i

Our Legislature has provided a statutory list of grounds for termination. The probate court held that petitioner had proven MCL 712A.19b(3)(c)(i) and (g); MSA 27.3178(598.19b)(3)(c)(i) and (g), by clear and convincing evidence. MCL 712A.19b(3)(c)(i); MSA 27.3178(598.19b)(3)(c)(i) provides:

The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:

(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.

In order to make its determination under this subsection, the court heard testimony of the family case worker, Kelly Parkinson. The court found that there were only two conditions that led to the original adjudication, and “they involved housing and they involved [the] mother’s choice or her desire as to whether or not she wanted the children in her custody.” On the basis of Ms. Parkinson’s testimony, the court found that respondent had five addresses, therefore one of the two conditions continued to exist. The court also found that because respondent had been fairly compliant with much of the parent-agency agreement, it was convinced that the second condition no longer existed. 2

*369 Ms. Parkinson provided the only testimony regarding respondent’s housing situation. The testimony reveals that there was scant support for the ultimate findings made by the court on this issue. On direct examination, Ms. Parkinson testified that she thought a list of housing options had been given to respondent and that she was seeking housing. She testified that respondent was living with a friend and then moved into a house that respondent reported was suitable for the children. Ms. Parkinson testified that she was going to make a visit, but that respondent moved before that happened. When asked the number of different addresses respondent had provided, Ms. Parkinson responded:

A. Several. I would say at least five different addresses.

Q. Did she ever give you any excuses why she couldn’t come up with a suitable housing arrangement?

A. Never a viable excuse. I would assume it was financial.

This was the extent of the direct examination on the housing issue. On cross-examination she was not clear, and did not know, whether respondent had been given housing referrals. Ms. Parkinson was asked to verify the length of time respondent had been at her current address, and Ms. Parkinson was again “unclear.” She had never visited the current apartment and had not determined whether it was appropriate. She did not know whether respondent was on a waiting list for a two-bedroom apartment, and had not verified any information regarding respondent’s living arrangements or plans.

At the conclusion of direct and cross-examination, the court examined the witness. Interestingly, in over *370 twenty-four pages of examination, the court never once inquired into the housing issue. The court’s conclusory findings on this issue are demonstrative of the short shrift given to this issue:

As to the housing issue, in this Court’s opinion, that still is not resolved .... Now, she has not been able to do that in the approximately one-year’s time between the placement of the children and the filing of this Petition, and in fact, the testimony has been that she has had five addresses during that time and none of those addresses were suitable for the care of the children. [3] [T]his Court is satisfied that there is clear and convincing evidence to support 19b(c)(i); that that condition leading to that original adjudication continues to exist.

The court was required to determine whether the conditions that led to the initial order continued to exist, and that there was no reasonable likelihood that conditions would be rectified within a reasonable time considering the age of the children. Without information regarding suitability of respondent’s current housing situation, or respondent’s plan for housing, the court was not provided with clear and convincing evidence that the housing conditions were unsuitable and, if so, would not be rectified within a reasonable time. The majority describes Ms. Parkinson’s testimony as “undisputed” and revealing that respondent acknowledged her housing was unsuitable. It also provides that respondent was merely on a waiting list for a two-bedroom house on the date of termination. The majority relies on Ms. Parkinson’s statement that respondent “indicated” that the apart *371 ment was unsuitable for all three children. Ms. Parkinson did not say when this was “indicated” or to whom. A full reading provides that Ms. Parkinson was unsure of respondent’s housing situation on the day of the termination hearing. She had not verified her current address or situation. Moreover, the majority is relying on respondent’s attorney’s cross-examination question of Ms. Parkinson as evidence that respondent “held merely a place on a waiting list for a two-bedroom apartment on the date of the termination . . . .” Ante at 360. Reliance on an attorney’s questions of a witness as evidence reflects the meager support in the record. What is clear is that the court had insufficient evidence regarding respondent’s current and prospective housing situation at this stage of the proceedings.

n

While rejecting grounds argued by petitioner based on the behavior of the children, the court agreed that a second statutory ground for termination had been proven. MCL 712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g) provides:

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.

To prove this ground, petitioner provided the parent-agency agreement listing eight requirements and argued that respondent had not complied. The court found, however, that respondent had failed to comply with only two of the eight. First, the court reiterated *372 that housing was inadequate “despite the statement that the mother has recently obtained housing, that she is renting from a friend.” 4 Second, the court reviewed respondent’s therapy progress and concluded that the result was that there has not been a provision of proper care or custody because of the lack of progress here. This vague explanation makes it difficult to discern whether the court was referring to housing, a formal “plan,” or that slow progress in therapy caused her to be unable to provide proper care. The court’s statement immediately following the conclusion regarding respondent referred to the father’s lack of appropriate housing. The majority resorted to reviewing testimony provided at a later hearing to conclude that the court did not clearly err in this conclusion. Ante at 360, n 16. Even if I were to accept the fact that respondent’s therapy progress was slow, this is but one of eight goals listed in the parent-agency agreement. Subsection 19b(3)(g) does not require that every goal listed in the parent-agency agreement be complied with in order to spare the parent from termination of rights. In fact, no reference is made in the statute regarding these agreements. Instead, as explained by the majority, the parent-agency agreement is a service plan that provides guidance to the agency, the parent, and the court. It provides both services to be provided, and expectations of the parent. Ante at 346, n 3. It is not a list of binding requirements that necessarily leads to termination under subsection 19b(3)(g), if there is noncompliance *373 with one or two. 5 Because the housing goal lacks evidence to support respondent’s violation, and because the therapy issue is extremely vague, I would hold that the court clearly erred in finding clear and convincing evidence that grounds under subsection 19b(3)(g) were proven.

CONCLUSION

These cases are especially difficult and fact specific. As recognized by the majority, appellate courts must adhere to a high standard of review, that of clear error, and must have a definite and firm conviction that a mistake has occurred before overturning a probate court’s determination. This Court has reviewed countless cases detailing reprehensible acts committed by parents against their children. Almost every case involves some sort of physical, and often sexual, abuse accompanied by neglect and substance abuse. The sad stories reviewed by judges, attorneys, and caseworkers can lead to a cynical view of our ability to repair these familial relationships. Such facts are not present in the instant case. Instead, the facts show that respondent had a difficult time recovering from the emotional and financial effects of her divorce.

We must keep in mind that the “fundamental liberty interest of natural parents in the care, custody, and management of their childfren] does not evaporate simply because they have not been model parents or *374 have lost temporary custody of their child[ren] to the State.” Santosky v Kramer, 455 US 745, 753 ; 102 S Ct 1388 ; 71 L Ed 2d 599 (1982). With this in mind, it is of utmost importance that probate courts follow the statutorily imposed guidelines in determining whether the grounds for termination have been met by clear and convincing evidence. In this case, it appears that the probate court, in its original adjudication, failed to do so. For the reasons set forth, I would reverse the termination of parental rights.

Markman, J., took no part in the decision of this case.

The majority describes this as a tactical choice. I agree, but, the choice was made on the basis of an erroneous view by the lower courts that the respondent had a burden of proof at the best interests hearing. The court clearly erred in finding clear and convincing evidence on the basis of the testimony of one caseworker who was not sure where respondent lived and had not investigated whether respondent’s housing problem was being resolved. Further, she was not sure whether any caseworker had provided respondent with housing referrals or assistance as required by the parent-agency agreement. .

The court also found that respondent failed to present a custodial plan. However, this may not be considered under this subsection because it was not a condition that led to the initial adjudication.

3 There is no support in the record for the conclusion that “none” of the addresses were suitable. It appears that Ms. Parkinson relied on respondent’s claim that one was unsuitable, but had not visited the others.

Apparently, the court was referring to the June 12 hearing where respondent provided proof to the court that she was renting a two-bedroom apartment. The court explained that she brought her landlord to that hearing.

As the majority notes, “substantial!] compliance]” is the test, under the court rule, not the statute, for determining whether there is evidence that there is a risk of harm in returning the child to the parent. Ante at 346, n 3. Here, respondent substantially complied with the parent-agency agreement by completing at least six of the eight requirements.