In re Moss

• Decision Date: 09 May 2013
• Docket Number: Docket No. 311610.
• Citation: 836 N.W.2d 182,301 Mich.App. 76
• Parties: In re MOSS.
• Court: Court of Appeal of Michigan — District of US

301 Mich.App. 76

836 N.W.2d 182

In re MOSS.

Docket No. 311610.

Court of Appeals of Michigan.

Submitted Feb. 13, 2013, at Detroit.

Decided May 9, 2013, at 9:05 a.m.

Michael D. Wendling, Prosecuting Attorney, and Timothy K. Morris, Chief of Appeals, for petitioner.

John L. Livesay, Port Huron, for respondent.

Before: MURRAY, P.J., and WILDER and OWENS, JJ.

OWENS, J.

Respondent appeals as of right an order terminating her parental rights to her youngest daughter and her son. The trial court found, for the reasons stated in the referee's findings of fact and conclusions of law, that there was clear and convincing evidence to terminate respondent's parental rights under MCL 712A.19b(3)(g) and (j) and that termination would be in the best interests of the children. For the reasons set forth in this opinion, we affirm.

First, respondent argues that there was not clear and convincing evidence to terminate her parental rights pursuant to MCL 712A.19b(3)(g) and (j). We disagree. To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established. In re Trejo Minors, 462 Mich. 341, 355, 612 N.W.2d 407 (2000). We review for clear error a trial court's finding of whether a statutory ground for termination has been proven by clear and convincing evidence. MCR 3.977(K); In re BZ, 264 Mich.App. 286, 296, 690 N.W.2d 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, 690 N.W.2d 505.

The trial court terminated respondent's rights under MCL 712A.19b(3)(g) and (j), which provide as follows:

The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:

* * *

(g) 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.

* * *

(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.

The record shows that respondent's substance abuse affects her ability to provide proper care and custody for the children.Testimony showed that she used drugs in the presence of the children and that she took them with her to purchase drugs on at least one occasion. Respondent was also living at a homeless shelter with the children, and there was no evidence that she would be able to provide suitable housing for the children in the reasonably foreseeable future.

Moreover, the facts do not show that there is a reasonable expectation that respondent would be able to provide proper care and custody within a reasonable amount of time considering the children's ages. She has a long history of mental illness that has been difficult to manage. She repeatedly experienced psychotic episodes, including auditory hallucinations in which she was told to harm her children. Although respondent was seeking treatment, the testimony at trial established that previous attempts at treatment were unsuccessful. She had been admitted at least three times for psychiatric care at hospitals in Michigan, Illinois, and Florida, and respondent testified about difficulties arising when her medications ran out. She also testified about numerous problems in adjusting her medications to successfully control her symptoms.

In addition, the record shows that there is a reasonable likelihood, based on the conduct or capacity of respondent, that the children would be harmed if returned to respondent's home. Respondent has a long history of substance abuse and mental illness, and her treatment has been unsuccessful for both. At the termination hearing, it was undisputed that respondent had thoughts of harming her youngest daughter and that she acted on those thoughts by attempting to suffocate her. Although respondent testified that she no longer had thoughts of harming her daughter since she received the proper medication, the trial court found that the risk of harm to the children would be too great if respondent went off her medication for any reason. Furthermore, respondent's oldest daughter had previously been removed and placed in foster care because respondent had thoughts of harming her. The record shows that respondent falsified drug tests in order to regain custody and that after regaining custody, respondent continued to have thoughts of harming her daughter.

Given the facts of record, we conclude that the trial court did not clearly err in finding by clear and convincing evidence statutory grounds for termination under MCL 712A.19b(3)(g) and (j).

Next, respondent argues that petitioner failed to prove by clear and convincing evidence that termination of her parental rights was in the best interests of the children. We disagree. Although respondent asserts that the trial court must find by clear and convincing evidence that termination is in the best interests of the children, there is no statute, court rule, or caselaw requiring such. The statute clearly states that the statutory grounds for termination must be proved by clear and convincing evidence, but does not provide a standard of proof for the best-interest determination. MCL 712A.19b(3) and (5). MCL 712A.19b(5) provides the following regarding the best-interest determination:

If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.

Before it was amended by 2008 PA 199, the statute read:

If the court finds that there are grounds for termination of parental rights, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made, unless the court finds that termination of parental rights to the child is clearly not in the child's best interests. [MCL 712A.19b(5), as amended by 2000 PA 232 (emphasis added).]

Accordingly, because of the statutory language at the time, our Supreme Court concluded that once the trial court finds that there are statutory grounds for termination, the trial court must terminate parental rights unless it finds by clear evidence that termination is not in the child's best interests. Trejo, 462 Mich. at 354, 612 N.W.2d 407. However, because the statute as amended in 2008 does not include the term “clearly,” the clear-evidence standard no longer applies to the best-interest determination.¹ Thus, the current statute does not provide a standard of proof. For the reasons that follow, we hold that the preponderance of the evidence standard applies to the best-interest determination.

Initially, we note that in civil cases, the Legislature's failure to spell out a standard of proof would usually require application of the preponderance of the evidence standard. Residential Ratepayer Consortium v. Pub. Serv. Comm., 198 Mich.App. 144, 149, 497 N.W.2d 558 (1993). However, termination-of-parental-rights cases are not strictly civil cases, as recognized by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 762, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Rather, they bear “many of the indicia of a criminal trial.” Id. Further, the Michigan Court Rules, which are adopted by our Supreme Court, are silent on the standard of proof required for the best-interest determination, as is Michigan caselaw. See MCR 3.977(E)(4), (F)(1)(c), and (H)(3)(b). So in the absence of explicit Michigan law on the issue, we must determine whether the preponderance of the evidence standard can be constitutionally applied to the best-interest determination. To do so, we look for guidance in Santosky, the leading case from the United States Supreme Court regarding the requisite standard of proof in termination-of-parental-rights proceedings.

Santosky examined the constitutionality of the state of New York's parental-rights-termination statute. Santosky, 455 U.S. at 748–749, 102 S.Ct. 1388. Specifically, Santosky analyzed whether New York's statute, which authorized the trial court to terminate a parent's rights to the child if the state proved by a fair preponderance of the evidence that the parent had permanently neglected the child, satisfied the due-process requirements of the Fifth and Fourteenth Amendments. See id. at 748–751, 102 S.Ct. 1388. At the time, New York's termination proceedings consisted of two parts: (1) a fact-finding hearing to prove permanent neglect and (2) a dispositional hearing to determine what placement was in the child's best interests. Id. at 748, 102 S.Ct. 1388. Under New York's statute, once the state established permanent neglect by a fair preponderance of the evidence at the fact-finding hearing, the parent's rights to the child could be terminated if termination was determined to be in the best interests of the child. Id. at 748–749, 102 S.Ct. 1388.

To determine the requisite standard of proof that due process would require for the fact-finding stage of the termination proceeding, the Court weighed the three factors specified in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Santosky, 455 U.S. at 758–768, 102 S.Ct. 1388.Mathews stated that

identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or...