In re Pops

890 N.W.2d 902, 315 Mich. App. 590
CourtMichigan Court of Appeals
DecidedApril 28, 2016
DocketDocket No. 328818
StatusPublished
Cited by36 cases

This text of 890 N.W.2d 902 (In re Pops) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Pops, 890 N.W.2d 902, 315 Mich. App. 590 (Mich. Ct. App. 2016).

Opinion

Per CURIAM.

Respondent-father (respondent) appeals as of right an order terminating his parental rights to his child, EP, under MCL 712A.19b(3)(c)(z) (conditions that led to adjudication continue to exist), MCL 712A.19b(3)(g) (failure to provide proper care and custody), and MCL 712A.19b(3)(j) (reasonable likelihood of harm). For the reasons set forth in this opinion, we reverse.

I. FACTUAL BACKGROUND

The trial court obtained jurisdiction over EP after respondent pleaded no contest to an allegation by petitioner, the Department of Health and Human Services (DHHS), that he fled from police for a distance of 14 blocks while EP was in his vehicle. Police discovered marijuana and a scale in the vehicle, and respondent was briefly incarcerated pending charges. Petitioner [593]*593placed EP with respondent’s mother, who had been EP’s caregiver since birth. However, petitioner removed EP from the grandmother’s home and placed him in foster care when it discovered that she had a criminal record and could not obtain a license as a foster-care provider. The prosecutor did not charge respondent for the traffic offense. Instead, respondent agreed to plead guilty to another offense, resisting and obstructing a police officer, and the court sentenced him to 18 months’ probation. Respondent engaged in services provided by petitioner while on probation, but he was sent to prison after his arrest for carrying a concealed weapon. The grandmother twice petitioned the trial court for a guardianship over EP, but the court denied both petitions. Petitioner eventually filed for termination of respondent’s parental rights, which the trial court granted. Respondent now appeals.

II. STANDARD OF REVIEW

Respondent argues that the trial court erred when it found that petitioner established multiple statutory grounds for termination by clear and convincing evidence. The trial court’s decision that a ground for termination of parental rights has been proved by clear and convincing evidence is reviewed for clear error. In re BZ, 264 Mich App 286, 296; 690 NW2d 505 (2004). “A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court’s special opportunity to observe the witnesses.” Id. at 296-297.

III. STATUTORY GROUNDS FOR TERMINATION

The trial court found that petitioner established three separate grounds for terminating respondent’s [594]*594parental rights: MCL 712A.19b(3)(c)(¿), MCL 712A.19b(3)(g), and MCL 712A.19b(3)(j).

A. MCL 712A.19b(3)(c)(i) AND MCL 712A.19b(3)(g)

Under MCL 712A.19b(3)(c)(¿), the trial court may terminate a parent’s parental rights if 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” it finds by clear and convincing evidence that 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.” A trial court may also terminate a parent’s parental rights if it finds by clear and convincing evidence that 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.” MCL 712A.19b(3)(g). We address both statutory grounds together.1

The trial court held that it was appropriate to terminate respondent’s parental rights under MCL 712A.19b(3)(c)(i) because criminal activity was present at the beginning of the case and criminal activity was still a concern in light of respondent’s arrest and imprisonment for carrying a concealed weapon. The court explained that there was no indication regarding when these conditions would be rectified because re[595]*595spondent would be incarcerated until at least April 2016, and it was unlikely that he could provide care for EP immediately after his release. The court also explained that, beyond his incarceration, respondent did not participate in services on a meaningful level when he had the opportunity and never attended therapy. The court held that termination was proper under MCL 712A.19b(3)(g) because respondent could not provide care or custody during incarceration, and he was unable to provide for an appropriate alternative placement.

With regard to these statutory grounds, respondent argues that he provided proper care and custody by placing EP with the grandmother, who had acted as EP’s caregiver since birth. Respondent is correct that Michigan permits an incarcerated parent to achieve proper care and custody through placement with a relative. In re Mason, 486 Mich 142, 161 n 11; 782 NW2d 747 (2010). Our Supreme Court determined that when an incarcerated parent requests placement of his or her children with a relative, “[a]s long as the children are provided adequate care, state interference with such decisions is not warranted.” In re Sanders, 495 Mich 394, 421; 852 NW2d 524 (2014).

Petitioner’s guide for relative placement requires that relatives must become licensed foster-care providers. DHHS, Children’s Foster Care Manual: Relative Placement and Engagement (September 1, 2014), p 12.2 Petitioner’s reason for removing EP from the grandmother’s home was her inability to become a licensed foster-care provider because of her criminal history. The grandmother’s criminal record included a misde[596]*596meanor aggravated assault charge in 2005 and a misdemeanor domestic violence charge in 2006. Her record also included convictions for operating with a suspended license in 2007, felony retail fraud in 2010, and misdemeanor retail fraud in 2011. Respondent contends that removal from the grandmother’s home was erroneous because petitioner’s policy states that relatives not interested in licensure can apply for a waiver. Petitioner’s policy guidelines specifically state that all relative caregivers must become licensed and that waivers are only appropriate if the relative refuses to pursue licensure or the child is an American Indian. Id. at 14-15. In this case, the determination made by the caseworker was that the grandmother’s criminal history made her ineligible for licensure, not that she refused to pursue licensure. Therefore, the waiver process cited by respondent was not applicable to the grandmother.

Nevertheless, respondent is correct that petitioner did not follow its own guidelines when it determined that the grandmother could not become a licensed foster-care provider because of her criminal record. A foster-home applicant must “[b]e of good moral character,” Mich Admin Code, R 400.9201(b), but would be outright barred for a prior conviction only if it was for child abuse or neglect. Mich Admin Code, R 400.9205(3). Notably, the Children’s Foster Care Manual: Relative Placement and Engagement prohibits placement with a relative caregiver only if there is a felony conviction for certain enumerated crimes, including spousal abuse or physical assault, battery, or a drug-related offense within the last five years. Children’s Foster Care Manual: Relative Placement and Engagement, p 8. However, the grandmother had misdemeanor

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Cite This Page — Counsel Stack

Bluebook (online)
890 N.W.2d 902, 315 Mich. App. 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pops-michctapp-2016.