Miller, In re, Docket No. 82919

Decision Date30 August 1989
Docket NumberDocket No. 82919
Citation445 N.W.2d 161,433 Mich. 331
PartiesIn re Ryan Kyle Dean MILLER, Minor. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellant, v. Glen MILLER, Respondent-Appellee. 433 Mich. 331, 445 N.W.2d 161
CourtMichigan Supreme Court

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Donald E. Martin, Ingham County Pros. Atty. by Robert B. Ebersole, Chief Appellate Atty., Lansing, for petitioner-appellant.

William T. King, Lansing, for respondent father.

GRIFFIN, Justice.

After the probate court terminated the parental rights of respondent Glen Miller with respect to his son, Ryan Miller, now six years old, its order was reversed by a divided panel of the Court of Appeals. 1 We are required to decide whether there was sufficient evidence under the appropriate standard of review to support the order of the probate court. Contrary to the holding of the Court of Appeals, we conclude that the probate judge's decision was not clearly erroneous, and therefore we reverse in part. 2

I

With supplementation provided in the course of our opinion, we adopt the following summary of the facts and procedural history as set forth by the Court of Appeals:

"The minor child, Ryan, was born in August, 1982. At that time, his parents were unmarried and Ryan lived with his mother, Sherry [then sixteen years of age].

"In August, 1983, a neglect petition was filed against Sherry on the basis of information reported by Sherry's mother. Ryan's first three months of foster care were with Sherry's mother. The rest of his foster care was with his paternal grandparents.

"In June, 1984, respondent and Sherry married. The marriage was tumultuous, and, at the time of the instant permanent termination proceedings, respondent had filed for divorce. [The divorce became final November 2, 1987.]

"The probate court based its decision to terminate parental rights on MCL 712A.19a(f); MSA 27.3178(598.19a)(f),[ 3] which provided:

" '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:

* * * * * *

" '(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's claim of error is that the evidence did not clearly and convincingly establish that termination of his parental rights was warranted.

* * * * * *

"Respondent proposed a plan whereby he hoped to establish a proper home for Ryan, who the [probate] court found had never lived with him other than for brief visits. The plan was that respondent would change work shifts so that he could be home with Ryan during the evenings. He intended to play and watch television with Ryan and also do housework during those times. Although the trial court found that it was speculative as to who would be raising Ryan, respondent indicated that he would ask a neighbor to care for Ryan during the day while he worked. In the fall of 1987, Ryan was to begin school, and respondent would be able to be with him when the school day ended. The court found that respondent had a two-bedroom apartment and a steady full-time job with a good work record, had consistently paid for Ryan's support, had demonstrated good compliance with court orders had paid for and attended therapy sessions, and had attended parenting classes and an alcohol education program. Nonetheless, the court found that 'there is not evidence that he [respondent] could provide adequately emotionally for Ryan' and that there was no reasonable probability that respondent could provide a proper home for Ryan within the next twelve months." In re Miller, supra, at p.p. 76-79, 422 N.W.2d 1 (citations omitted).

II

A majority of the Court of Appeals was left with a definite and firm conviction that a mistake had been made. In re Miller, 167 Mich.App. 75, 81, 422 N.W.2d 1 (1988). In the view of the panel majority, the probate judge had placed undue emphasis on two specific occurrences in the history of Ryan's visitations with respondent and his former wife. Id., at p.p. 79-80, 422 N.W.2d 1.

The first incident occurred in August, 1984, during a weekend visitation just prior to Ryan's second birthday. Sherry Miller telephoned the case worker to report that her husband had punished Ryan for a toilet-training lapse by picking him up by his hair and smearing feces on his face.

The second incident occurred one year later. In August, 1985, the case worker arranged an overnight visitation, the first since the toilet-training episode. On the day of the visit, the case worker received a call from the prosecutor's office advising that criminal charges had been brought against respondent. The charges were based on allegations that respondent had illegally entered a home where Sherry Miller was staying and assaulted her. 4 On the basis of this report, the case worker ended the visitation early and told Ryan's parents there would be no more visits "for a while." Thereafter, neither parent sought a resumption of visitation privileges until the following April; consequently, a period of over nine months elapsed during which Ryan did not see either of his parents.

The reasoning of the appeals panel majority in reversing the probate court's decision is summarized in the following passage:

"We agree with the probate court that this is a sad case and that Ryan needs stability in his life. But the evidence shows that most of the instability and discord was brought about because of the poor relationship that existed between Ryan's parents, which was aggravated by a number of factors, including the fact that Sherry regularly left home for up to six weeks at a time. Munro-Sneider [the case worker] even testified that, on two occasions, Ryan came close to being reunited with his parents and that the reason he was not so reunited was not the fault of either parent individually, but rather was the result of the fact that his parents could not interact well together." Id., at p.p. 80-81, 422 N.W.2d 1.

Judge Kelly disagreed with the majority's conclusion in a sharply worded dissent:

"I find there was clear and convincing evidence that respondent's parental rights should be terminated under MCL 712A.19a(f); MSA 27.3178(598.19a)(f). Respondent-appellant had a history of difficulty with his own parents and had abused this child dramatically on occasions....

"There was ample testimony of alcohol abuse and physical assault and battery by the respondent upon the mother. There were extensive periods of time when visitation was minimal or totally neglected. The trial judge was fearful that respondent would merely repeat his past behavior and would neglect the child to go fishing or out drinking with his friends. The judge was also concerned about medical testimony concerning the child's emotional problems and he questioned whether a babysitter would be able to adequately deal with these emotional problems." Id., at p.p. 81-82, 422 N.W.2d 1.

III

The Court of Appeals recited the appropriate standard for appellate review of a trial court's findings with respect to termination of parental rights. In re Miller, supra, at p. 78, 422 N.W.2d 1. An appellate court should not reverse the findings of a trial court in such a case unless its findings are clearly erroneous. In re Irving, 134 Mich.App. 678, 679-680, 352 N.W.2d 295 (1984). "A finding is 'clearly erroneous' [if] 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 Riffe, 147 Mich.App. 658, 671, 382 N.W.2d 842 (1985); In re Cornet, 422 Mich. 274, 278, 373 N.W.2d 536 (1985). For termination of parental rights cases, this standard of review is codified in the Michigan Court Rules. MCR 5.974(I).

The Court of Appeals did not address the important question of the deference to be accorded to the findings of the trier of fact. MCR 2.613(C) requires that in applying the principle that findings of fact may not be set aside unless clearly erroneous, regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.

The deference required by MCR 2.613(C) can make a critical difference in difficult cases such as the one before us. In contrast to the reviewing court, the trier of fact has the advantage of being able to consider the demeanor of the witnesses in determining how much weight and credibility to accord their testimony. It is noteworthy that Probate Judge Donald S. Owens not only observed the demeanor of the witnesses during each of the two formal adjudications concerning Ryan Miller, but he also presided over a number of pretrial conferences and dispositional hearings held during the fifty months of probate court temporary jurisdiction leading up to the termination order.

IV

In arguing that the Department of Social Services failed to establish by clear and convincing evidence that there was no reasonable probability that he would be able to establish a proper home for Ryan within the following twelve months, respondent Miller makes two claims: 1) that the probate court's decision was against the great weight of the evidence, and 2) that the probate court improperly shifted the burden of proof to him. We address these contentions separately.

A. Weight of the Evidence

Respondent Miller argues that the probate judge ignored or failed to give appropriate weight to some of the evidence. However, the probate judge's explanation of his findings convinces us that he did not ignore information, current or otherwise, which was...

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