In re Medina

• Decision Date: 13 September 2016
• Docket Number: Docket No. 328952.
• Parties: In re MEDINA.
• Court: Court of Appeal of Michigan — District of US

317 Mich.App. 219

894 N.W.2d 653

In re MEDINA.

Docket No. 328952.

Court of Appeals of Michigan.

Submitted April 5, 2016, at Lansing.

Decided Sept. 13, 2016, at 9:10 a.m.

Child Welfare Appellate Clinic (by Timothy M. Pinto and Lina Delmastro (under MCR 8.120(D))) for respondent.

Foster & Harmon, PC, East Lansing (by Cynthia S. Harmon ), for petitioner.

Before: BOONSTRA, P.J., and WILDER and METER, JJ.

WILDER, J.

Respondent-father appeals as of right the trial court's order terminating his parental rights to his son, JM. The trial court cited three statutory grounds for termination, none of which respondent contests in this appeal: (1) MCL 712A.19b(3)(a)(ii ) (desertion for 91 or more days during which custody is not sought), (2) MCL 712A.19b(3)(i) ("Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful."), and (3) MCL 712A.19b(3)(n)(i ) (parent previously convicted of first-degree criminal sexual conduct (CSC–I) "and the court determines that termination is in the child's best interests because continuing the parent-child relationship ... would be harmful to the child"). We affirm.

I. FACTUAL BACKGROUND

In January 2000—before JM was born—respondent pleaded guilty to CSC–I for forcibly raping and sodomozing his nine-year-old cousin. At that time, respondent was 18 years old. In exchange for his guilty plea, the prosecution dropped additional charges stemming from respondent's admitted sexual relationship with a 14–year–old girl. As a result of his plea, respondent spent roughly eight and a half years in prison. During that time, his parental rights to his daughter, HM, were terminated because respondent was admittedly incapable of caring for HM "physically, emotionally or financially." Respondent has another son, IM, who lives in Florida.

In 2009, after respondent was paroled, he admittedly committed several parole violations—what he characterized as "some wrong decisions"—which resulted in the revocation of his parole. Specifically, respondent "broke tether," visited IM without supervision, and allegedly engaged in gang-related activity.¹ Consequently, respondent was returned to prison, where he served an additional year.

After he was again released from prison, respondent and petitioner-mother began to date. The parties gave conflicting testimony regarding the inception, extent, and duration of their relationship. But it is undisputed that their romantic entanglement resulted in an unplanned pregnancy and the subsequent birth of JM in the autumn of 2011. According to petitioner, JM was about 15 months old when petitioner learned of the factual basis for respondent's CSC–I conviction. Respondent had previously portrayed his conviction as a "Romeo and Juliet" situation involving young love—a romantic relationship between himself, when he was a teenager, and a 14–year–old family friend—but when petitioner went to the courthouse and reviewed the court file, she learned "[t]he whole truth ... that he forcibly raped his 9–year–old cousin anally[,] vaginally[,] and orally." The revelation left petitioner " stunned." Realizing that respondent was "not a good father" and that the relationship would not work, petitioner ended the relationship.

Petitioner later met and began to date her current husband, Benjamin, who is a national guardsman and former sheriff's deputy. Upon learning of petitioner's new relationship, respondent made harassing phone calls to her, threatening to kidnap JM and kill petitioner. Petitioner and Benjamin married in August 2013, forming a blended family with JM and two of his half-siblings. Respondent thereafter began to date another woman, Monica, to whom he eventually became engaged.²

In December 2014, petitioner instituted this action by filing a petition seeking termination of respondent's parental rights to JM. Among other things, petitioner alleged that, upon termination of respondent's parental rights, Benjamin would adopt JM. Petitioner further alleged that JM lacked any bond with respondent and would not recognize him, whereas JM regularly called Benjamin "Dad." Benjamin agreed that he wanted to adopt JM, explaining that he had "grown to see [JM] as [his] son" and that he wanted to provide a "solid" family setting for the child. The trial court subsequently authorized the petition and, over respondent's repeated objections, ordered that respondent would not be permitted parenting time with JM.

Several months later, in March 2015, respondent moved to dismiss the termination petition. He argued that the trial court could not take jurisdiction over JM because the child remained in petitioner's care—a "stable, suitable," and "safe environment"—not foster care. The trial court denied respondent's motion to dismiss the termination petition, citing In re Marin, 198 Mich.App. 560, 568, 499 N.W.2d 400 (1993), for the proposition that "it is not necessary that the child be in foster care in order for the termination petition to be entertained." Later that same month, respondent pleaded guilty to a misdemeanor violation related to his registration as a sex offender. Respondent admitted that he had moved to a different address without duly notifying the authorities.

The matter proceeded to a bench trial regarding adjudication in July 2015. At that time, JM was three years old. Petitioner testified on her own behalf and called two additional witnesses, including her husband, Benjamin. According to petitioner, in the first year of JM's life, she "was a single parent basically." During that time, respondent remained on parole for his CSC–I conviction, was subject to GPS tether restrictions, and maintained "very minimal and sporadic" contact with JM. Any contact that did occur was initiated by petitioner because, at that time, she believed that maintaining a parent-child relationship between JM and respondent "was the right thing to do." But during his visits with JM, respondent seemed to lack any genuine interest in spending time with the child. He "didn't want to change [JM's] diapers and do the daily things that you have to do for a baby," instead preferring to "hang out with friends" and play video games. While doing so, respondent would often consume alcohol, which violated the terms of his parole. Respondent is prone to violent outbursts, especially while drinking, and has previously admitted to being "mentally unstable." Accordingly, when respondent used alcohol, petitioner would remove JM from the situation because she "didn't want [her] son around that." After learning of the basis for respondent's CSC–I conviction, petitioner stopped initiating visits altogether, except for one she arranged as a pretense to retrieve some of JM's personal items from respondent's home. After that visit, which occurred more than two years before the trial, respondent had no contact with JM.

Petitioner further testified that, at the time of trial, she and JM had been living with Benjamin for several years. She described Benjamin as "a great father to [JM]" who had "been there" for JM and whom JM loved.³ Conversely, respondent was then residing at his mother's home along with his stepfather and Monica, all of whom have criminal backgrounds.

Although respondent's testimony painted a very different picture and he disputed most of the substance of petitioner's testimony as well as that of her supporting witnesses, we need only note that, in deciding to assume jurisdiction over JM, the trial court repeatedly questioned respondent's credibility while accepting that of petitioner and her witnesses. The trial court noted that respondent seemed "a poor historian regarding some pretty significant things in [his] life," further noting that petitioner's testimony "made more reasonable sense than [respondent's]."

In the dispositional hearing following adjudication, after entertaining oral argument, the trial court terminated respondent's parental rights under MCL 712A.19b(3)(a)(ii ), (3)(i), and (3)(n)(i ). In support of its best-interest determination, the trial court concluded that JM lacked any bond to respondent and that, in any event, respondent's ability to parent JM was "unknown" because it had been more than two years since respondent saw JM.

The trial court reiterated that it found petitioner and her witnesses to be credible, but it "found that [respondent] was not very credible." The trial court also concluded that JM's need for permanency, finality, and stability favored termination, particularly in light of the fact that JM views Benjamin as his father, and that termination of respondent's parental rights was in JM's best interests.

This appeal followed.

II. STANDARDS OF REVIEW

"The clear error standard controls our review of ‘both the court's decision that a ground for termination has been proven by clear and convincing evidence and ... the court's decision regarding the child's best interest.’ " In re Williams, 286 Mich.App. 253, 271, 779 N.W.2d 286 (2009), quoting In re Trejo, Minors, 462 Mich. 341, 356–357, 612 N.W.2d 407 (2000), superseded in part by statute on other grounds as recognized by In re Moss, 301 Mich.App. 76, 83, 836 N.W.2d 182 (2013). "A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made." In re LaFrance Minors, 306 Mich.App. 713, 723, 858 N.W.2d 143 (2014). Any related statutory interpretation poses a question of law reviewed de novo, id., as does the question whether the trial court conformed to the applicable procedural rules, In re BZ, 264 Mich.App. 286, 291, 690 N.W.2d 505 (2004). We "must defer to the special ability of the trial court to judge the credibility of witnesses." LaFrance, 306 Mich.App. at 723, 858 N.W.2d 143.

III. RULES OF STATUTORY CONSTRUCTION

Many of the fundamental principles of statutory construction that are relevant to this appeal were discussed in In re MKK, 286...