in Re M Downing Minor

STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED
In re M. DOWNING, Minor. July 11, 2017

No. 334925
Macomb Circuit Court
Family Division
LC No. 2016-000082-NA

Before: GADOLA, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

Respondent appeals as of right the order terminating her parental rights to the minor child
MD. The trial court terminated respondent’s parental rights pursuant to MCL 712A.19b(3)(a)(ii)
(parent deserted child for 91 or more days and has not sought custody), (g) (parent failed to
provide proper care or custody and no reasonable expectation parent will provide proper care or
custody within a reasonable time), (j) (reasonable likelihood child will be harmed if returned
home), and (n)(ii) (the parent was convicted of a listed offense and continuation of the parent-
child relationship would be harmful to the child). We affirm.

Respondent first argues that the trial court erred by exercising jurisdiction over MD. We
disagree.

With respect to the preserved issue regarding whether the trial court properly exercised
jurisdiction, this Court has held that “[j]urisdiction must be established by a preponderance of the
evidence[,]” and that it “review[s] the trial court’s decision to exercise jurisdiction for clear error
in light of the court’s findings of fact[.]” In re BZ, 264 Mich App 286, 295; 690 NW2d 505
(2004). A trial court’s determinations are clearly erroneous if “we are definitely and firmly
convinced that it made a mistake.” In re White, 303 Mich App 701, 709-710; 846 NW2d 61
(2014). Meanwhile, this Court reviews unpreserved arguments, such as respondent’s arguments
that the trial court’s procedure was improper, “under a plain-error analysis.” In re VanDalen,
293 Mich App 120, 135; 809 NW2d 412 (2011). “To avoid forfeiture under the plain error rule,
three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear
or obvious, 3) and the plain error affected substantial rights.” Id. (quotations and citations
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 NW2d 253 (2008) (citation
omitted).

“Child protective proceedings have long been divided into two distinct phases: the
adjudicative phase and the dispositional phase.” In re AMAC, 269 Mich App 533, 536; 711
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NW2d 426 (2006) (citations omitted). “The adjudicative phase occurs first and involves a
determination whether the trial court may exercise jurisdiction over the child, i.e., whether the
child comes within the statutory requirements of MCL 712A.2(b).” Id. “The dispositional phase
involves a determination of what action, if any, will be taken on behalf of the child.” Id. at 537.
“In order to find that a child comes within the court’s jurisdiction, at least one statutory ground
for jurisdiction contained in MCL 712A.2(b) must be proven, either at trial or by plea.” In re
SLH, 277 Mich App 662, 669; 747 NW2d 547 (2008). In pertinent part, MCL 712A.2(b)(1)
allows a trial court to assume jurisdiction over a child under the following circumstances:

The court has the following authority and jurisdiction:

(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.

When making a determination regarding jurisdiction in termination proceedings, the trial court
“shall state on the record or in writing its findings of fact and conclusions of law.” MCR
3.977(I)(1). “Brief, definite, and pertinent findings and conclusions on contested matters are
sufficient.” MCR 3.977(I)(1). Although the trial court is not required to make those findings on
the record during the hearing, when it does not do so “it shall file its decision within 28 days
after the taking of final proofs[.]” MCR 3.977(I)(1).

Respondent argues that the trial court erred by failing to announce on the record that it
found, by a preponderance of the evidence, that it had jurisdiction over MD and what findings of
fact that decision was based upon. The record, however, does not support respondent’s
arguments. Indeed, the record reveals that after the close of proofs the trial court announced its
findings of fact. Specifically, the trial court asserted that respondent openly admitted to
deserting MD for a period of nearly five years. During that time, respondent did not provide any
money, gifts, clothes, or food for MD. Respondent was informed by the Oakland Circuit Court
in 2011 that in order for her to gain parenting time with MD, she would have to participate in a
mental health evaluation. Respondent admitted at trial that she still had not performed the
evaluation.

Respondent is correct that the trial court did not explicitly state, on the record, that it
found there to be a preponderance of the evidence regarding a specific statutory ground for the
exercise of jurisdiction. However, the trial court did make “[b]rief, definite, and pertinent
findings and conclusions on contested matters[.]” MCR 3.977(I)(1). Further, in a written order
signed by the trial court less than 28 days after the close of proofs, as required by the court rule,
the trial court set forth which statutory grounds for jurisdiction it relied on. Indeed, the written
order declared that, after trial, there was, on a preponderance of the evidence, “statutory grounds

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to exercise jurisdiction over the child[,]” citing MCL 712A.2(b). The order further specified that
the grounds were “failure to provide, when able to do so, support, education, medical, surgical,
or other necessary care for health or morals” and “abandonment by parent[].” The language of
the order is congruent with the language found in MCL 712A.2(b)(1) as statutory grounds for
adjudication. Therefore, with respect to respondent’s unpreserved argument that the trial court
failed to follow the proper procedure for adjudication, we are satisfied the trial court followed the
procedures established by MCR 3.977(I)(1).

We next address respondent’s argument that the trial court clearly erred in finding that
there was not a preponderance of the evidence in support of a statutory ground for adjudication.
Recall that, “[i]n order to find that a child comes within the court’s jurisdiction, at least one
statutory ground for jurisdiction contained in MCL 712A.2(b) must be proven, either at trial or
by plea.” In re SLH, 277 Mich App at 669. Pursuant to MCL 712A.2(b)(1), two such grounds
include where a “parent . . . , 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, . . . [or] who is abandoned by his or her parent[.]” As just discussed, the trial court found
that those two statutory grounds were met by a preponderance of the evidence. The trial court
did not clearly err where respondent openly admitted on the record that she had not seen or
spoken to MD since 2010, and had not engaged in any legal action to attempt to see MD since
2011. She further admitted that she had not provided any monetary or other support to MD or to
petitioner for the benefit of MD. Those admissions from respondent were corroborated by
testimony from both petitioner and petitioner’s mother. Given those facts, there was clearly a
preponderance of the evidence that respondent neglected to or refused to provide any support for
MD, and for more than six years of his life, she abandoned him. MCL 712A.2(b)(1).

Respondent argues that she could not have been found to have abandoned or neglected
MD because she left him in the care of petitioner, MD’s father. This Court, however, has
previously disregarded that argument, because although a parent might not have the legal duty to
care for a minor, they can still have abandoned or neglected the minor. Specifically, in In re
Hall, 188 Mich App 217, 223-224; 469 NW2d 56 (1991), this Court addressed the respondent-
mother’s argument that she could not have abandoned her minor children when the children were
left in the care of the children’s grandmother. Although that argument was made with respect to
grounds for termination pursuant to MCL 712A.19b(3)(a)(ii), which is for desertion, the same
reasoning applies here. Id. This Court held that there were adequate grounds “regarding
abandonment and neglect” where “[t]he evidence established that [the] respondent had little or
no contact with her children from the time they were placed with their grandmother, and that
[the] respondent failed to comply with parent agency agreements geared at providing the
children with a stable home.” Id. Hall is instructive here because the record established that for
the six years MD lived with petitioner, respondent did not provide any care for or contact MD.
As this Court in Hall held, that was sufficient evidence of abandonment and neglect. Therefore,
the trial court properly took jurisdiction pursuant to MCL 712A.2(b)(1) despite the fact that MD
was living with petitioner.

Respondent next argues that the trial court abused its discretion by allowing the lawyer-
guardian ad litem (L-GAL) representing MD to be called as a fact witness. We disagree.

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 “It is settled that error requiring reversal may only be predicated on the trial court's
actions and not upon alleged error to which the aggrieved party contributed by plan or
negligence.” Lewis v LeGrow, 258 Mich App 175, 210; 670 NW2d 675 (2003) (citations
omitted). Stated differently, “[a] party may not claim as error on appeal an issue that the party
deemed proper in the trial court because doing so would permit the party to harbor error as an
appellate parachute.” Hoffenblum v Hoffenblum, 308 Mich App 102, 117; 863 NW2d 352
(2014) (internal quotations and citation omitted). On appeal, respondent argues that the trial
court erred by allowing the L-GAL to testify as a fact witness. The record reveals that it was
respondent that called the L-GAL as the witness – not petitioner or the trial court. Therefore,
pursuant to Hoffenblum, 308 Mich App at 117, respondent is not now allowed to use that error as
an “appellate parachute.” Instead, as this Court held in Farm Credit Servs of Michigan’s
Heartland, PCA v Weldon, 232 Mich App 662, 683-684; 591 NW2d 438 (1998), respondent’s
contribution to the alleged error means that respondent “ha[s] waived our review of this issue.”

Respondent also argues that the trial court erred by permitting the L-GAL to be absent
during certain portions of the trial. We disagree.

As an initial matter, we note that respondent does not have standing to challenge the L-
GAL’s behavior in her representation of MD. The child’s right to assistance of counsel by an L-
GAL during child protective proceedings is a constitutional protection. In re HRC, 286 Mich
App 444, 458; 781 NW2d 105 (2009). “[C]hildren have a right to appointed counsel in child
protective proceedings, MCL 712A.17c(7), and . . . a child’s attorney appointed under the
juvenile code has the same duties that any other client’s attorney would fulfill when necessary.”
Id. (Citation and quotations omitted.) “Those duties, such as the duty to investigate, examine
witnesses, and appear at hearings on behalf of the client, are inherent in each attorney’s ethical
obligations.” In re AMB, 248 Mich App 144, 224; 640 NW2d 262 (2001). However, “this Court
has held that a respondent in a child protective proceeding lacks standing to challenge the
effectiveness of the child’s attorney.” In re HRC, 286 Mich App at 458.

Because the right to representation by an L-GAL is a constitutional issue, “it is personal
to the child and respondent may not assert it on behalf of the child.” Id., quoting In re EP, 234
Mich App 582, 598; 595 NW2d 167 (1999), overruled on other grounds by 462 Mich 341
(2000). By statute, “[a] lawyer-guardian ad litem’s duty is to the child, and not the court.” MCL
712A.17d(1). As such, the L-GAL’s role in the case was to advocate for the interests of MD, not
respondent. Therefore, the L-GAL’s performance during the proceedings, including her
absences from certain portions thereof, affected the rights of MD and MD alone. Therefore, we
decline respondent’s invitation to address this issue any further. In re HRC, 286 Mich App at
459.

Respondent also challenges the trial court’s determination that there were statutory
grounds for termination. “This Court reviews for clear error the trial court’s factual findings and
ultimate determinations on the statutory grounds for termination.” In re White, 303 Mich App at
709. A trial court’s findings of fact are clearly erroneous if “we are definitely and firmly
convinced that it made a mistake.” Id. at 709-710.

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 Respondent argues that the trial court clearly erred in finding that termination was
established by clear and convincing evidence pursuant to MCL 712A.19b(3)(a)(ii), (g), (j), and
(n)(ii). We disagree.

“ ‘To terminate parental rights, a 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 Brown/Kindle/Muhammad Minors, 305 Mich App 623, 635; 853 NW2d 459
(2014), quoting In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). The trial court first
found that termination was proper pursuant to MCL 712A.19b(3)(a)(ii). The trial court’s finding
was not clearly erroneous if there existed “clear and convincing evidence that [respondent] had
deserted the [child] for 91 days and had not sought custody during that period.” In re Laster, 303
Mich App 485, 492; 845 NW2d 540 (2013).

The record reveals that respondent openly admitted to not having seen or spoken to MD
since March of 2010. Further, respondent also admitted to not providing any financial or
material assistance to MD or to petitioner for the benefit of MD in that same time frame.
Respondent testified that she had not sought parenting time or custody of MD since 2011, and
when her request was denied pending a mental health evaluation, respondent refused to complete
that. Respondent’s testimony was corroborated by petitioner, who stated that respondent had not
been involved in MD’s life since 2010, and that she had not attempted to be since 2011.
Petitioner’s mother testified that, even when respondent was living with MD in the home of
petitioner’s mother, respondent was still rarely around and did not purchase or contribute
anything to the care of MD. Although there was testimony that respondent was in and out of jail
and prison throughout those years, petitioner testified that, when counted consecutively, they
amounted to little more than two total years over a span of six years. During the times when
respondent was not in jail or prison, she still did not attempt to seek custody of or contact with
MD. The trial court found that the aforementioned evidence established by clear and convincing
evidence that respondent had deserted MD and not sought custody in more than 91 days. That
decision was not clearly erroneous where respondent herself admits that she had not contacted or
offered any type of support for MD since 2010, and had not sought parenting time since 2011.
There was clear and convincing evidence that “[respondent] [had] deserted the child for 91 days
and had not sought custody during that period[,]” and therefore, termination pursuant to
subsection (3)(a)(ii) was proper. MCL 712A.19b(3)(a)(ii); In re Laster, 303 Mich App at 492.
In order to circumvent those facts, as she did with respect to her adjudication argument,
respondent argues that she could not have deserted MD when he was left in the care of petitioner.
As we have concluded above, this argument lacks merit. In re Hall, 188 Mich App at 223-224.

The trial court also found clear and convincing evidence that respondent’s rights should
be terminated pursuant to MCL 712A.19b(3)(g). Respondent’s parental rights were properly
terminated if the trial court found, by clear and convincing evidence, that “[t]he 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.” MCL 712A.19b(3)(g). The record, as discussed above,
supports the trial court’s determination that respondent entirely failed to provide proper care or
custody for MD. Indeed, not only did respondent fail to provide proper care and custody to MD,
she did not provide any care or custody. Respondent did not contact or provide any support for
MD in more than six years. Further, at the time of trial, respondent testified that she was living

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in a Red Roof Inn and trying to save money for a lease. Respondent had ample time to create a
situation where she could provide proper care and custody for MD, but even at the time of trial,
there was no evidence that respondent would be able to do so in a reasonable time. As such, the
trial court did not clearly err in determining that there was clear and convincing evidence
supporting termination pursuant to MCL 712A.19b(3)(g).

The trial court also found that MCL 712A.19b(3)(j) was a statutory ground for
termination of respondent’s parental rights. That decision by the trial court was not clearly
erroneous if there was clear and convincing evidence that “[t]here [was] a reasonable likelihood,
based on the conduct or capacity of the child’s parent, that the child will be harmed if [he was]
returned to the home of the parent.” MCL 712A.19b(3)(j). The trial court’s decision was
adequately supported by the record. There was abundant testimony that respondent was a violent
person. Further, there was also testimony that respondent felt comfortable being violent in front
of her children, including both MD and LG, a child she shared with another man. Indeed,
petitioner stated that respondent swung a frying pan at him while he was carrying MD as a baby.
Although MD was not injured in the altercation, respondent showed little regard for MD’s safety.
Respondent had also been violent with LG’s father in the presence of LG. LG’s father testified
that there was more than one occasion where respondent struck him while LG was watching.
During certain arguments, LG’s father would attempt to diffuse the situation by going to bed.
However, those attempts did not always work, and LG’s father would sometimes be forced to
barricade himself and LG in the bedroom to avoid respondent’s rage. LG’s father testified that
respondent had struck him in LG’s presence as recently May or June of 2016. Further, LG
showed signs of anxiety, including pulling out his own hair, which LG’s father attributed to LG
witnessing respondent’s violent behavior.

Considering that evidence, the trial court did not clearly err in determining that there was
clear and convincing evidence that MD would “be harmed if [he was] returned to the home of
the parent.” MCL 712A.19b(3)(j). Not only had respondent been violent in MD’s presence, she
also submitted him to possible danger by swinging a frying pan at petitioner while he was
holding MD. Further, respondent indicated her inability to control her behavior by acting in a
similar way toward LG’s father while LG was present. “Evidence of how a parent treats one
child is evidence of how he or she may treat the other children.” In re Hudson, 294 Mich App
261, 266; 817 NW2d 115 (2011) (citation omitted). LG’s father’s testimony that he had to
barricade himself and LG in a room to avoid respondent’s violence revealed that not only was he
concerned for his safety in respondent’s presence, but also the safety of LG. The trial court
properly considered that as how respondent would treat MD if she were to maintain her parental
rights. See id. In sum, because there was clear and convincing evidence that MD would be
harmed if he were to return to the care of respondent, termination was proper pursuant to MCL
712A.19b(3)(j).

The trial court also found that MCL 712A.19b(3)(n)(ii) was a statutory ground for
termination of respondent’s parental rights. The trial court did not clearly err in so doing if there
existed clear and convincing evidence that respondent was “convicted of . . . [a] violation of a
criminal statute that includes as an element the use of force or the threat of force and that
subjects [respondent] to sentencing” as an habitual offender, and where “continuing the parent-
child relationship with [respondent] would be harmful to the child.” MCL 712A.19b(3)(n)(ii). It
is undisputed that respondent was convicted on three separate occasions for domestic violence

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and that domestic violence involves the use of force or the threat of force. MCL 750.81(2). For
the second conviction, respondent was sentenced as a second habitual offender pursuant to MCL
769.10. For her third conviction, respondent was sentenced as a third habitual offender pursuant
to MCL 769.11. Respondent admitted to those convictions and sentences. Further, as noted
above, respondent’s violent behavior that led to the various convictions also resulted in there
being clear and convincing evidence that a continuing relationship with respondent would be
harmful to MD. As such, there was clear and convincing evidence that respondent was
convicted of a listed offense, sentenced as an habitual offender, and her continuing a relationship
with MD would cause him harm. MCL 712A.19b(3)(n)(ii). Therefore, the trial court did not
clearly err in finding that subsection (n)(ii) was a proper statutory ground for termination.

On appeal, respondent argues that the trial relied solely on her incarceration to establish
statutory grounds for termination contrary to our Supreme Court’s decision in In re Mason, 486
Mich 142; 782 NW2d 747 (2010). In that case, the Court held that “[t]he mere present inability
to personally care for one’s children as a result of incarceration does not constitute grounds for
termination.” Id. at 160. Respondent’s argument, however, overlooks the fact that the trial court
relied largely on her behavior while outside of jail and prison. Indeed, when the petition was
brought and by the time termination was granted, respondent had been out of prison for more
than 18 months. The trial court’s decision, instead, was based on respondent’s abandonment of
MD even when she was not incarcerated, respondent’s violent behavior in the presence of her
children, and respondent’s failure to offer any form of care or custody for MD throughout his
life. Those actions and inactions by respondent took place while she was not in prison or jail.
Therefore, respondent’s argument under Mason is unavailing. Id.

Finally, respondent challenges the trial court’s best interest determination. This Court
reviews a trial court’s determination regarding best interests for clear error. In re White, 303
Mich App at 713. “A trial court’s decision is clearly erroneous ‘[i]f although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been made.’ ” In re Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d
144 (2012), quoting In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).

Respondent argues that the trial court clearly erred in determining that the preponderance
of the evidence supported its determination that it was in MD’s best interest to terminate her
parental rights. We disagree.

“Once a statutory basis for termination has been shown by clear and convincing evidence,
the court must determine whether termination is in the child’s best interest[ ].” In re LaFrance
Minors, 306 Mich App 713, 732-733; 858 NW2d 143 (2014), citing MCL 712A.19b(5). “ ‘[T]he
focus at the best-interest stage has always been on the child, not the parent.’ ” In re
Payne/Pumphrey/Fortson, 311 Mich App 49, 63; 874 NW2d 205 (2015), quoting In re Moss,
301 Mich App 76, 87; 836 NW2d 182 (2013). “Best interests are determined on the basis of the
preponderance of the evidence.” In re LaFrance Minors, 306 Mich App at 733 (citation
omitted). In considering the issue of whether termination is in the best interest of the minor
children, the trial court is permitted to consider “the child’s bond to the parent, the parent’s
parenting ability, the child’s need for permanency, stability, and finality, . . . the advantages of a
foster home over the parent’s home[,] . . . the length of time the child was in care, the likelihood
that the child could be returned to her parents’ home within the foreseeable future, if at all, and

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compliance with the case service plan.” In re Payne/Pumphrey/Fortson, 311 Mich App at 63-64
(internal citations and quotation marks omitted). “In assessing whether termination of parental
rights is in a child’s best interests, the trial court should weigh all evidence available to it.” Id. at
63. In addition, placement with a relative weighs against termination under MCL
712A.19a(6)(a). Indeed, “the fact that the children are in the care of a relative at the time of the
termination hearing is an explicit factor to consider in determining whether termination was in
the children’s best interest.” In re Olive/Metts Minors, 297 Mich App at 43 (internal quotations
and citation omitted).

Testimony at trial revealed that MD had extraordinary care needs, including physical and
occupational therapy arising out of his birth defect – benign hydrocephalus – and a possible
diagnosis of autism. Further, MD was a stranger to respondent. He was only a few months old
the last time he saw respondent. Since then, he had not spoken to or visited with respondent.
Nor had respondent exercised any effort to remain in MD’s life. Rather, respondent entirely
abandoned MD for approximately six years. Plus, as discussed above, respondent’s violent
nature reflects that MD would be put in danger if he was ever submitted to the care of
respondent. Respondent, over the course of six years, never demonstrated the ability to properly
care for a child. We are also satisfied the trial court weighed the fact that MD was living with a
relative in determining whether it was in MD’s best interests to terminate respondent’s parental
rights.

Respondent’s behavior toward LG presents additional issues with respect to MD’s best
interest. If respondent maintained her rights and someday managed to gain parenting time with
MD, he would be at risk of harm because of respondent’s violent and irrational nature. The
evidence at trial revealed that on two separate occasions respondent took LG to Louisiana
without notice to LG’s father. Further, she refused to bring him back unless LG’s father offered
her money or a place to live. Respondent also would keep LG for longer than her scheduled time
during overnight visits that did not involve Louisiana. She would refuse to bring LG back to his
father unless his father would give her money. Respondent’s track record shows that, even when
only having parenting time with LG, her children are in danger of being removed from the state
without consent from the other parent and being used for negotiating purposes with the fathers of
her children. Further, there was no meaningful evidence that respondent was in a position to
make positive changes in her life, considering that respondent had struck LG’s father in LG’s
presence as recently as May or June of 2016. As such, the trial court properly determined it was
in MD’s best interest to avoid the possibility of issues arising out of respondent’s attempts at
involvement in his life, and to terminate her parental rights, particularly where MD had a safe,
loving, stable home with petitioner. In sum, the trial court did not clearly err in determining that
the preponderance of the evidence supported its decision that termination of respondent’s
parental rights was in MD’s best interest. MCL 712A.19b(5).

Affirmed.

/s/ Michael F. Gadola
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood

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