Issues: Termination under § 19b(3)(f) (failure to support and communicate with a minor); In re Moss Minors; Child's best interests
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Profrock
e-Journal Number: 59489
Judge(s): Per Curiam – Jansen, Meter, and Beckering
The court held that the trial court properly terminated the respondent-father's parental rights to the child (SLP) where the statutory grounds for termination were established by clear and convincing evidence and termination was in SLP's best interests. As to § (f)(i), he argued that there was insufficient evidence to show that he had the ability to support or assist in supporting SLP because he was disabled. Although SLP's mother testified that "respondent was injured in 2008 and then received worker's compensation," there was no indication that he was permanently disabled. To the contrary, it was uncontroverted that he was working while in prison. Although it was unclear what kind of work he was performing, "this cuts against the assertion that respondent was unable to do any work after 2008." Further, the fact that he had a job while in prison supported the trial court's conclusion that "he had at least some ability to assist in supporting SLP by sending" petitioner (respondent's mother) "money he was earning." Although his income in prison was limited, the record was "uncontroverted that he failed to make any contributions to the child or" petitioner. Also, despite claiming to be disabled, he never sought Social Security disability benefits. Thus, the evidence showed that he neglected to offer any support for SLP, even though he could have done so. The trial court's finding on this matter was not clearly erroneous. As to § (f)(ii), the evidence of record showed that respondent "only tried to contact SLP on two occasions over the course of three years." He argued that he tried to contact petitioner "on numerous occasions, but his calls were ignored and/or refused . . . ." Respondent was correct that the petitioner admitted that "she stopped answering his calls." However, she testified that she did so "because he only just ever asked for money and screamed and yelled at" her. Petitioner testified that "before she stopped answering his calls, respondent never asked about SLP or requested to talk to her. Moreover, making contact by telephone was not the only means available to respondent for communicating with SLP, and, with the exception of sending one card, respondent never availed himself of any other means of communicating with SLP." Under these circumstances, the trial court did not clearly err in finding that he "had the ability but failed to maintain contact with SLP, without good cause for failing to do so for two or more years before the filing of the petition." Affirmed.
Issues: Termination under §§ 19b(3)(c)(ii) & (g); Claim that because the respondent-father was not individually adjudicated, the trial court did not have the authority to make decisions as to his parental rights and the termination order must thus be vacated; In re Brock; In re Sanders; "The one-parent doctrine"; In re Youmans; In re S Kanjia
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Temples
e-Journal Number: 59492
Judge(s): Per Curiam – M.J. Kelly, Murphy, and Hoekstra
Holding that because the trial court terminated the respondent-father's parental rights to the child (SJT) without first specifically adjudicating him as unfit, the court vacated the trial court's order terminating his parental rights and remanded for proceedings consistent with this opinion. On appeal, respondent argued that, because he was not individually adjudicated, the trial court did not have the authority to make decisions as to his parental rights and the termination order must thus be vacated. The court agreed. Applying Sanders to the facts here showed that respondent's parental rights were "interfered with and that he was denied due process because he had not been specifically adjudicated as unfit at the time his rights were terminated." That was, at the time the trial court assumed jurisdiction and ordered compliance with services, he had made "no admissions regarding the allegations in the petition, he had not plead no contest to those allegations, and no trial had been held regarding the allegations involving respondent." On these facts, he had not been specifically adjudicated as unfit, and thus the trial court could not interfere with his parental rights. On appeal, the DHS attempted to distinguish Sanders from the facts here because the respondent-father in Sanders demanded an individual adjudication, while in contrast, respondent in this case "did not initially demand an individual adjudication and to the contrary indicated that he had no objection to SJT's mother entering a plea to the allegations which would bring SJT within the trial court's jurisdiction." Further, because respondent did not appeal the trial court's exercise of jurisdiction, the DHS maintained that he may not now raise the issue on appeal. Insofar as the DHS's argument suggested that respondent was not entitled to relief because he somehow consented "to the trial court's jurisdiction, such an assertion was plainly without merit because subject matter jurisdiction cannot be conferred by the consent of the parties." Moreover, although he did not appeal the trial court's exercise of jurisdiction at that time, this did "not prevent him from now demanding an individual adjudication on direct appeal from the trial court's termination of his parental rights because his assertion of a right to an individual adjudication is not a collateral attack on the court's exercise of jurisdiction but a direct challenge to the trial court's failure to afford respondent due process." Indeed, to the extent the DHS's argument more generally implicated preservation concerns, the court noted that respondent did in fact raise this issue in the trial court shortly after the decision in Sanders was issued and that, in any event, the court has determined that a demand for individual adjudication under Sanders "may be raised for the first time on direct appeal." In short, the court saw no reason why respondent may not rely on Sanders.
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