Issues: Termination under §§ 19b(3)(a)(ii), (g), and (j); In re Williams; In re Mason; In re Ellis; In re HRC; Claim that the trial court based its decision on respondent-father's use of marijuana under the Michigan Medical Marijuana Act (MMMA) (MCL 333.26424); MCL 333.26424(c); The best interests of the child
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Fay
e-Journal Number: 55909
Judge(s): Per Curiam – Fort Hood, Saad, and Borrello
The court held that termination of the respondent-father's parental rights to the child was proper under § 19b(3)(a)(ii) where the statutory ground for termination was established by clear and convincing evidence. Even assuming arguendo that the trial court erroneously found that the provisions of the MMMA had no effect on the proceedings, the court held that termination of his parental rights under § 19b(3)(a)(ii) was supported by the requisite evidence. The court also concurred with the findings of the trial court that termination of respondent's parental rights was in the child's best interests. Respondent argued that the trial court clearly erred by terminating his parental rights and maintained that the trial court based its decision on his use of marijuana under the MMMA. He noted that the MMMA provides that "[a] person shall not be denied custody of [sic] visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated[,]" and contended that the trial court made no such finding. Assuming for purposes of the appeal that the trial court clearly erred in terminating respondent's parental rights under §§ 19b(3)(c)(ii), (g), and (j) based solely on his use of marijuana under the MMMA, the court did not consider any of the grounds cited by the trial court for termination of respondent's parental rights based on his marijuana usage. Nevertheless, the court held that the trial court properly found that termination was warranted under § 19b(3)(a)(ii). Respondent did not attend the preliminary hearing on 8/2/11, or the dispositional review hearing on 9/14/11. K, the DHS worker assigned to the case from 9/14/11 until 1/6/12, testified that respondent did not attempt to contact her and did not return approximately three phone calls she made to him over a period of three months. Another review hearing was held on 1/23/12, and again he did not appear. The first appearance he made was 209 days after the child was removed from her mother's custody. The record reflected that while respondent had applied for a medical marijuana card, he did not possess a valid card as of 4/11/12. As of the 4/12 hearing, he had not seen or sought custody of the child for more than 9 months of her 20 months of life, and did not have a claim of protection under the MMMA at this time. Affirmed.
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