In re B and J

Decision Date13 May 2008
Docket NumberDocket No. 279462.,Docket No. 279461.,Docket No. 279585.
Citation756 N.W.2d 234,279 Mich.App. 12
PartiesIn re B AND J, MINORS. In re B and J, Minors. In re E and A, Minors.
CourtCourt of Appeal of Michigan — District of US

Janet L. Szpond, Sterling Heights, for Rosita Orozco-Miranda.

Before: JANSEN, P.J., and DONOFRIO and DAVIS, JJ.

JANSEN, P.J.

In these consolidated appeals, respondents Hugo Rene Diaz, also known as Hugo Rene Dias (Hugo), and Floricelda Orozco (Floricelda) appeal by right the family court's order terminating their parental rights to minor children B and J under MCL 712A.19b(3)(g). Respondent Rosita Orozco-Miranda (Rosita) also appeals by right the family court's order terminating her parental rights to minor children E and A under MCL 712A.19b(3)(g). We reverse.

I. Basic Facts and Procedural History

Hugo and Floricelda were married and are the parents of B and J. Rosita—Floricelda's adult daughter—lived with Hugo and Floricelda with her two children, E and A. Hugo, Floricelda, and Rosita are Guatemalan citizens who were illegally residing in this country. B was born in Guatemala and is therefore also a Guatemalan citizen. The other three children were born in the United States. All speak Spanish as their primary language.

In 2005, petitioner Department of Human Services investigated an allegation that Hugo had sexually abused Rosita's children. However, the allegation was never substantiated. The following year, petitioner again investigated alleged abuse by Hugo. The children were removed from the home in July 2006. Petitioner filed petitions seeking to terminate Hugo's and Rosita's parental rights. The petitions alleged that Hugo had sexually abused one of Rosita's children and that Rosita had failed to protect her children from Hugo's abuse. Petitioner did not seek at that time to terminate Floricelda's parental rights, but it did seek to continue the children in protective custody.

Preliminary hearings were held and the petitions were authorized. The family court continued temporary protective custody of the children.

A combined trial concerning the parental rights of Hugo and Rosita was held in late 2006. On the final day of trial, the family court found that petitioner had failed to meet its burden of establishing statutory grounds for termination of Hugo's and Rosita's parental rights by clear and convincing evidence. However, the court concluded that there was sufficient evidence to take jurisdiction over the children.1 The court ordered petitioner to prepare a parent-agency agreement, to allow supervised visitation, and to provide services toward reunification.

Petitioner made meager attempts to provide services and made little effort to locate Spanish-speaking assistance for respondents. Petitioner also failed to produce the children for at least two scheduled visits with respondents following the court's order. Before these issues could be remedied, however, respondents were detained by United States Immigration and Customs Enforcement (ICE) officials2 and deported to Guatemala. It is evident from the record that petitioner, itself, reported respondents to ICE.

At a subsequent hearing in January 2007, the family court observed that such conduct by petitioner was in bad faith and "morally repugnant." The court observed that petitioner had been charged with providing services toward reunification, that respondents had fully and actively participated in the proceedings, and that respondents had attempted to visit the children despite petitioner's failures. Nonetheless, the court noted that respondents were in the country illegally and therefore subject to deportation.

A permanency planning hearing was held in March 2007, at which time petitioner noted that it would again seek to terminate parental rights. Thereafter, petitioner filed supplemental petitions seeking termination of parental rights with respect to all three respondents under MCL 712A.19b(3)(a)(ii), (g), and (j).

In late June 2007, a new dispositional hearing was held concerning the parental rights of all three respondents. A caseworker from Lutheran Social Services testified that she had called the Guatemalan embassy and had performed an Internet search for possible services in Guatemala. But she testified that she had been unable to find any services for respondents in their native country. The caseworker also testified that she was unable to locate respondents, and testified that respondents had made no attempt to contact petitioner. It was suggested at the hearing that B— the oldest of the four children—might know how to contact respondents in Guatemala. Incredibly, however, the caseworker testified that she had never asked B how to contact respondents because she had not wanted to upset him by asking him about his family. The caseworker confirmed that she believed that it had been petitioner's intention all along to have respondents deported.

At the conclusion of the hearing, the family court noted that the parent-agency agreement had been unrealistic and that petitioner should have attempted to provide greater services for the family. The court found that the requirements for termination under § 19b(3)(a)(ii) had not been established with respect to any of the respondents, reasoning that respondents' involuntary deportation was not a desertion of the children. The court also found that the requirements for termination under § 19b(3)(j) had not been established with respect to any of the respondents because petitioner had failed to prove by clear and convincing evidence that the children would likely be harmed if returned to their parents. However, the court concluded that the requirements for termination under § 19b(3)(g) had been sufficiently established with respect to all three respondents because respondents, who had been deported, were unable to provide proper care and custody for the children. The court further concluded that the children were in need of permanency and that termination of parental rights was not clearly contrary to the their best interests.

II. Standards of Review

We review a family court's decision to terminate parental rights for clear error. MCR 3.977(J); In re Sours, Minors, 459 Mich. 624, 633, 593 N.W.2d 520 (1999). This standard controls our review of "both the court's decision that a ground for termination has been proven by clear and convincing evidence and, where appropriate, the court's decision regarding the child's best interest." In re Trejo, Minors, 462 Mich. 341, 356-357, 612 N.W.2d 407 (2000). A decision is clearly erroneous when, "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 JK, 468 Mich. 202, 209-210, 661 N.W.2d 216 (2003). We review de novo questions of constitutional law. People v. LeBlanc, 465 Mich. 575, 579, 640 N.W.2d 246 (2002).

III. Termination of Parental Rights

There is a strong public policy favoring the preservation of the family because the family unit is deeply rooted in our nation's history and tradition. Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). Natural parents have a fundamental liberty interest in the care, custody, and management of their children, and the state must therefore meet a high burden before terminating an individual's parental rights. See Santosky v. Kramer, 455 U.S. 745, 753-754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). To terminate parental rights, the family court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been established by clear and convincing evidence. In re Fried, 266 Mich.App. 535, 540-541, 702 N.W.2d 192 (2005). The petitioner has the burden of proving the statutory ground. In re Trejo, supra at 350, 612 N.W.2d 407. "Once a ground for termination is established, the court must issue an order terminating parental rights unless there exists clear evidence, on the whole record, that termination is not in the child's best interests." Id. at 354, 612 N.W.2d 407; see also MCL 712A.19b(5).

A. Statutory Grounds for Termination

The family court found that petitioner had failed to establish the statutory grounds for termination contained in §§ 19b(3)(a)(ii)3 and (j) by clear and convincing evidence. Nonetheless, the court found that petitioner had proven the grounds for termination under § 19b(3)(g) by clear and convincing evidence. MCL 712A.19b(3)(g) provides that the family court may terminate a respondent's parental rights if it finds 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." The court concluded that because all three respondents had been deported to Guatemala, they were necessarily unable to provide proper care and custody for the children, and would not be able to do so within a reasonable time.

Petitioner was not entitled to seek termination of respondents' parental rights under § 19b(3)(g) in this case because petitioner, itself, intentionally set out to create that very ground for termination. Relying on Logan v. Zimmerman Brush Co., 455 U.S. 422, 424, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), the Connecticut Supreme Court has held that "a state may not, consistent with due process of law, create the conditions that will strip an individual of an interest protected under the due process clause." In re Valerie D., 223 Conn. 492, 534, 613...

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