In re Trejo
| Decision Date | 05 July 2000 |
| Docket Number | Docket No. 112528, Calendar No. 10. |
| Citation | 612 N.W.2d 407,462 Mich. 341 |
| Parties | In re Gregory Thomas TREJO, Jr., Timothy Robert Trejo, and Samantha Liberty Esperanza Trejo, Minors, Liberty A. Trejo, also known as Liberty A. Jabak, Appellant. |
| Court | Michigan Supreme Court |
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, Daniel Lemisch, Chief, Appellate Division, and Joyce F. Todd, Assistant Prosecuting Attorney, Pontiac, for the appellee.
Thomas Lazar, Farmington Hills, and Albert L. Holtz, Bloomfield, for the appellant.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Susan A. Harris, Assistant Attorney General, Detroit, for amicus curiae the Attorney General.
This case involves an order terminating parental rights pursuant to M.C.L. § 712A.19b; MSA 27.3178(598.19b). Specifically, we address, on first impression, the constitutionality and operation of subsection (5) of this statute that was enacted by 1994 PA 264.1 Appellant-respondent contends that subsection 19b(5) violates due process and that the probate court erred in terminating her parental rights.
We hold that subsection 19b(5) makes termination mandatory if the petitioner establishes a statutory ground for termination under subsection 19b(3) unless the court finds that termination is clearly not in the child's best interest. We hold further that subsection 19b(5) is constitutional.
For the reasons that follow, we affirm the termination of appellant-respondent's parental rights in this case.
Appellant-respondent (hereinafter respondent) was divorced in November 1994 and awarded legal custody of the couple's three children.2 Respondent soon found herself unable to provide suitable housing and care for the children. On April 28, 1995, respondent approached the Department of Social Services (hereinafter petitioner) requesting placement in foster care for two of her three minor children, then ages one and three years old. Respondent expressed concern that she might verbally abuse the children. She had already placed her five-year-old son in the care of her parents.
On May 1, 1995, respondent was interviewed by petitioner, at which time she did not agree to the suggested assistance designed to keep the family intact. Testimony also revealed that respondent did not seek or accept assistance from other family members or friends. Instead, she took the two children to their father's place of work and left them. The father was also unable to provide suitable housing for the children.
Petitioner filed a complaint and a petition for temporary custody pursuant to M.C.L. § 712A.2(b)(1); MSA 27.3178(598.2)(b)(1) in the Oakland County Probate Court, and a preliminary hearing was held on May 2, 1995. At the preliminary hearing, the court found that probable cause existed to support the allegations in the petition and ordered that the three children be placed in the care and custody of petitioner on May 2, 1995. Petitioner placed the two younger children in foster care and allowed the eldest child to stay with his maternal grandparents.
At the pretrial hearing on May 15, 1995, both parents pleaded being responsible for allegations in an amended petition, including the allegations of failure to provide adequate housing and, as to the respondent, her fear that she would verbally abuse the children if they were left in her care.
Regular review hearings were held over the following twelve months. Pursuant to a series of parent-agency agreements,3 respondent obtained transportation and a fulltime job for an extended period. However, she failed to obtain or maintain housing adequate for the children. She moved five times from the beginning of the temporary wardship until the petition for the termination of her parental rights was filed in July 1996. Respondent did complete parenting classes after a slow start and over an extended time schedule, but her reviews from the completed classes were poor. Respondent also had difficulties complying with the individual therapy requirements of the agreement. She quit her first counselor abruptly. Her attendance at sessions with her second counselor was sporadic and her progress slow.
Respondent's visitations were supervised at first, but were ordered unsupervised after a June 1995 review hearing. At that time, all three children were placed together with the paternal grandparents. However, testimony revealed that the care of the three young children proved too difficult for the paternal grandparents. At a review hearing in September 1995, the paternal grandparents asked for assistance from respondent and other family members. Because they did not receive sufficient assistance from respondent or other relatives, the children's guardian ad litem filed an emergency review petition. After reviewing the petition filed on October 20, 1995, the three children were placed in foster care.
Initially, the children were not in the same foster care home. The five and three year old were placed together and the one and a half year old with a different foster care family. The children were separated until the foster family that had taken the older children received licensure that allowed them to have three children. The youngest child joined her siblings in April 1996.
There was testimony from the foster parents that the older children would act out— first, after unsupervised overnight visitations, and then, with increasing intensity, after every unsupervised visitation. At a review hearing in March 1996, the court ordered that the visits again be supervised and that the parents, who fought in front of the children, visit separately. During the supervised visits that followed, the caseworker observed that respondent was unwilling or unable to control her children's increasingly difficult and sometimes violent behavior.
Pursuant to M.C.L. § 712A.19a; MSA 27.3178(598.19a),4 a permanency planning hearing was held on June 12, 1996. The court found that there continued to be no viable plan for the return of the children to either parent and no compelling evidence that the matter would improve in another three months. The court further found that it had not been demonstrated that initiating termination of parental rights proceedings would be adverse to the interests of the children.
Petitioner filed a petition to terminate parental rights on July 12, 1996. The petition alleged three statutory grounds for termination.5 The hearing on the petition to terminate parental rights commenced September 25, 1996, and was continued on September 27, October 27 and November 20. The court determined at the outset that it would consider the alleged grounds and the best interest evidence separately.6 Petitioner presented one witness regarding the alleged grounds for termination, the family's case worker, who was examined and cross-examined by the parties. Respondent did not call any witnesses regarding the alleged grounds for termination. After hearing the case worker's testimony, the court found that petitioner had proven subsections 19b(3)(c)(i) and 19b(3)(g) by clear and convincing evidence. Following this conclusion, the court asked to hear testimony regarding the best interests of the children. Two days of testimony regarding the children's best interests followed. On November 20, 1996, the court concluded that the evidence had clearly and convincingly demonstrated that termination was in the children's best interests, and it entered an order terminating respondent's parental rights on December 2, 1996.
Respondent filed her claim of appeal on January 13, 1997. The Court of Appeals affirmed in a unpublished opinion per curiam on June 12, 1998 (Docket No. 200486). We granted leave to appeal. 459 Mich. 994, 603 N.W.2d 787 (1999).
II
Under M.C.L. § 712A.19b(3); MSA 27.3178(598.19b)(3), it is well established that the petitioner for the termination of parental rights bears the burden of proving at least one ground for termination. In re Sours Minors, 459 Mich. 624, 593 N.W.2d 520 (1999). The question presented by this case is how to apply subsection 19b(5), which was enacted by 1994 PA 264. Subsection 19b(5) provides in pertinent part that the court "shall" terminate parental rights if one statutory ground for termination is found, "unless" termination is clearly not in the child's best interests.
The amended court rule, MCR 5.974, similarly mandates termination once one or more grounds for termination is proven, unless "termination is clearly not in the best interest of the child."9 MCR 5.97A(E)(2).
This Court has not directly addressed the operation of subsection 19b(5). The prevailing interpretation of subsection 19b(5) at the Court of Appeals is that the statute creates "a mandatory presumption that can only be rebutted by a showing that termination is clearly not in the...
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