In re NEAL
Docket No. 97597.Michigan Court of Appeals.
Decided October 6, 1987.Harold F. Closz, III, Prosecuting Attorney, and John M. Karafa, Assistant Prosecuting Attorney, for the Department of Social Services.
David W. Marra, for Harry Johnson.
Before: CYNAR, P.J., and WEAVER and J.H. HAUSNER,[*] JJ.
PER CURIAM.
Respondent, Harry Johnson, appeals as of right from a probate court order terminating his parental rights to his minor daughter, Shereka Neal (born January 27, 1978). We affirm.
The Department of Social Services filed a petition in October, 1983, requesting that the probate court take jurisdiction of Shereka and her three siblings, Reginald, April and Jerry Neal, on the basis of parental neglect.
The hearing on this petition took place on October 20, 1983. The probate court took jurisdiction of the children based on the proofs presented. The court ordered the children to remain with the mother, Sheree Neal, in her home under the supervision of DSS and the court. Shereka's father was in prison at the time of the filing of this petition. He had been incarcerated since April 5, 1981.
A supplemental petition was filed on November 30, 1983. Based on this second petition, Shereka and her three siblings were removed from their mother's custody and placed in foster care. At the *524 December 22, 1983, formal hearing on the supplemental petition, the parties stipulated that the children be removed from the mother's custody and placed in foster care facilities. Review hearings were thereafter held in May and November, 1984, and May and October, 1985.
On October 17, 1985, a hearing was held on the first petition for permanent wardship regarding Shereka and her two brothers and sister. The mother stipulated to the material allegations in the petition and stipulated to the termination of her parental rights.
Thereafter, evidence was introduced regarding the parental rights of the fathers. Respondent testified that he was presently incarcerated at the Grand Rapids Correction Center. He stated that he was not aware that Shereka had been in foster care until November, 1984. After this hearing, respondent agreed to work with DSS and to arrange a transfer to the Muskegon Correction Center so he could be close to Shereka.
At the April 10, 1986, hearing, respondent indicated a willingness to work with DSS toward returning his daughter to his custody. The children were continued as temporary wards of the court in foster care.
In early May, 1986, respondent met with DSS officials. An informal parent-agency agreement was reached whereby respondent was to obey the rules of the Muskegon Correction Center, attend parent-child workshops, and visit his daughter on Saturdays at the maternal grandmother's home.
At a hearing held on November 13, 1986, the mother and Jeremiah Wickcliffe (father of the other three children) appeared and each stipulated to voluntary termination of their parental rights. Respondent was not present at the hearing due to transportation problems from the Department of *525 Corrections. As to him, the hearing was rescheduled for December 2, 1986.
At the December hearing, JoAnn Sciba, social worker on the case, testified that she saw respondent in May, 1986, at the Muskegon Correction Center. Respondent was sent back to Jackson prison in June, 1986, because he violated prison rules at the Muskegon Correction Center.
Sciba testified that, while at the Muskegon Correction Center, respondent attended 42 1/2 hours of parent-child workshop classes. Respondent, however, had never visited his daughter before being returned to Jackson.
The maternal grandmother, Dorothy Bailey, stated that in the past three years respondent had no contact with Shereka. The last visit with Shereka took place during Christmas, 1983, when respondent brought her a doll and visited for about fifteen minutes.
Respondent also testified at the hearing. He said he never called his daughter because he did not have the telephone number of the foster home. He believed that he had a good chance of making parole and planned to live and work in Muskegon. He believed that he could reestablish a home for his daughter.
The probate judge issued a written opinion on December 8, 1986, in which he terminated respondent's parental rights. The judge found that respondent was unable to provide a suitable home for the child by reason of the father's neglect of Shereka.
The sole issue before the Court is whether the probate court's findings of fact supporting termination are clearly erroneous.
The probate court terminated respondent's parental rights pursuant to MCL 712A.19a, subds (d), *526 (e) and (f); MSA 27.3178(598.19a), subds (d), (e) and (f), which provide:
Sec. 19a. Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:
* * *
(d) A parent or guardian of the child is convicted of a felony of a nature as to prove the unfitness of the parent or guardian to have future custody of the child or if the parent or guardian is imprisoned for such a period that the child will be deprived of a normal home for a period of more than 2 years.
(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect.
(f) The child has been in foster care in the temporary custody of the court on the basis of a neglect petition for a period of at least 2 years and upon rehearing the parents fail to establish a reasonable probability that they will be able to reestablish a proper home for the child within the following 12 months.
Respondent argues that the probate judge clearly erred by terminating his parental rights under subsection (d) since this section provides for a prospective application, not a retroactive application of its provisions. Respondent contends that, since the probate judge considered his prior imprisonment as a basis for termination, the decision is clearly erroneous.
We review a decision to terminate parental rights under the clearly erroneous standard. In re Cornet, 422 Mich 274, 277; 373 NW2d 536 (1985); In re Bedwell, 160 Mich App 168, 172; 408 NW2d 65 (1987). A finding is clearly erroneous when, *527 although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been committed. In re Cornet, supra, p 278, quoting Tuttle v Dep't of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). The petitioner bears the burden of proving by clear and convincing evidence that termination of parental rights is warranted. In re Bedwell, supra, p 173.
Subsection 19a(d) provides two alternate bases for termination. The first ground focuses on the nature of a parent's or guardian's conviction which would make the parent or guardian unfit for future custody. The second basis looks at whether a parent or guardian will be imprisoned for a length of time in which the child will be deprived of a normal home for a period of more than two years.
The probate judge relied on the second basis since he found that respondent had been imprisoned for a period in excess of two years and that Shereka had been deprived of a normal home for longer than two years.
Upon a careful reading of § 19a(d), we find that its sole focus is whether the imprisonment will deprive a child of a normal home for two years in the future, and not whether past incarceration has already deprived the child of a normal home. Case law supports such a construction. See In re Ovalle, 140 Mich App 79, 84; 363 NW2d 731 (1985); In re Hurlbut, 154 Mich App 417, 424; 397 NW2d 332 (1986).
Therefore, the probate court's findings under section 19a(d) are clearly erroneous since it considered respondent's past incarceration as a basis for terminating his parental rights.
Although we conclude that the probate court's termination decision was clearly erroneous under *528 § 19a(d), we conclude nonetheless that there was clear and convincing evidence to support termination under subsections (e) and (f).
Subsection (e) permits termination of parental rights on the basis of neglect. In Fritts v Krugh, 354 Mich 97, 114; 92 NW2d 604 (1958), our Supreme Court stated that the "entry of an order for permanent custody due to neglect must be based upon testimony of such a nature as to establish or seriously threaten neglect of the child for the longrun future."
We find that clear and convincing evidence was presented to sustain termination on the basis of neglect. The evidence indicated that only once in three years had respondent communicated with Shereka. This communication took place because respondent faced the possibility of returning to Jackson prison and he was willing to voluntarily relinquish any rights to Shereka in exchange for not being transferred to Jackson. Hence, we find no error.
Finally, the probate court's determination to terminate under subsection (f) is not clearly erroneous. Subsection (f) provides for termination if a parent fails to establish a reasonable probability that he or she will be able to establish a proper home for the child within the next twelve months. The burden of going forward with this evidence rests with the parent. In re Pasco, 150 Mich App 816, 821-822; 389 NW2d 188 (1986).
In this case, respondent offered evidence that his incarceration would end in the near future and he would take steps to establish a home for the child and obtain employment. However, no one from the Department of Corrections confirmed respondent's statement that he would be entitled to parole in *529 the next twelve months. The probate court did not err in terminating respondent's parental rights pursuant to subsection (f).
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.