In the Matter of ANTWAN GREEN and
D'ANTWAN DASHAWN GRAY, Minors.
_____________________________________________
FAMILY INDEPENDENCE AGENCY, UNPUBLISHED
August 27, 1999
Petitioner-Appellee/Cross-Appellee,
v No. 211752
Wayne Circuit Court
ANTWAN GREEN, Family Division
LC No. 94-317727
Respondent-Appellant,
and
LAVISHIA CORLANDA GRAY,
Respondent,
and
JAMES H. PILKINGTON and PATRICIA A.
PILKINGTON,
Appellees/Cross-Appellants.
____________________________________________
In the Matter of ANTWAN GREEN and
D'ANTWAN DASHAWN GRAY, Minors.
____________________________________________
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
v No.211773
Wayne Circuit Court
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LAVISHIA CORLANDA GRAY, Family Division
LC No. 94-317727
Respondent-Appellant.
And
ANTWAN GREEN,
Respondent.
______________________________________________
Before: Gribbs, P.J., and Smolenski and Gage, JJ.
PER CURIAM.
Respondents Antwan Green and Lavishia Gray appeal as of right from a
trial court order terminating their parental rights to the two minor
children under MCL 712A.19b(3)(c)(i) and (g); MSA 27.3178(598.19b)(3)(c)(i)
and (g). Appellees James and Patricia Pilkington, the former foster parents
of minor Antwan Green, cross-appeal, challenging the trial court's order
prohibiting them from adopting the minor children. We reverse and remand
for further proceedings.
In order to terminate parental rights, the trial court must find that
at least one of the statutory grounds for termination has been met by clear
and convincing evidence. In re JS & SM, 231 Mich App 92, 97; 585 NW2d 326
(1998). This Court reviews the trial court's findings of fact under the
clearly erroneous standard. MCR 5.974(I); In re Miller, 433 Mich 331, 337;
445 NW2d 161 (1989); In re Hall-Smith, 222 Mich App 470, 472; 564 NW2d 156
(1997).
As to respondent Gray, Docket No. 211773, a review of the record leads
us to conclude that the trial court clearly erred in finding clear and
convincing evidence to support termination of her parental rights under §§
19b(3)(c)(i) and (g). MCR 5.974; In re Miller, supra. Termination was not
warranted under § 19b(3)(c)(i) because the record discloses that the
conditions that led to adjudication, Gray's lack of a home and failure to
attend parenting class, had been rectified and that Gray had completed all
of the requirements of her parent-agency agreement. Similarly, termination
was not warranted under § 19b(3)(g) because, in view of Gray's progress and
compliance with the parent-agency agreement, the evidence failed to
establish that there was no reasonable expectation that she would not be
able to provide proper care and custody within a reasonable time
considering the children's ages. We find it significant that Gray's case
worker, Shareen Allen, testified against terminating Gray's parental
rights, and that the Family Independence Agency takes the position that
Gray's parental rights should not be terminated. Accordingly, we conclude
that the trial court erred in terminating Gray's parental rights to the
children.
Likewise, in Docket No. 211752, we conclude that the trial court
clearly erred in terminating respondent Green's parental rights under §§
19b(3)(c)(i) and (g). With respect to § 19b(3)(c)(i), the record is devoid
of any evidence regarding Green's anticipated release date from prison and
what services, if any, may be required upon his release before he would be
in a position
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to care for his children. The Pilkingtons contend that such evidence was
presented at the adjudication hearing involving Green. Specifically, they
rely on respondent's stipulation that he had been sentenced to a prison
term of two to eight years in November 1995, and that he was not in a
position to plan for the children at that time in light of his
incarceration. While that evidence was sufficient to show that Green was
unable to care for the children at the time of adjudication, it did not
demonstrate that, at the time of the termination hearing, there was no
reasonable likelihood that he would be able to care for the children within
a reasonable time considering their ages, nor was other evidence presented
to clearly and convincingly establish this required element. Similarly,
with respect to § 19b(3)(g), given the absence of information showing how
long Green would be incarcerated or what, if any, services he would require
before he would be in a position to care for the children upon his release,
the evidence failed to establish that there was no reasonable expectation
that Green would be able to provide proper care and custody within a
reasonable time considering the children's ages. Accordingly, we conclude
that the trial court erred in terminating Green's parental rights to the
children.1
Finally, on cross appeal the Pilkingtons contend that the trial court
exceeded its authority and violated their due process rights when it
excluded them as potential adoptive parents as part of the parental
termination proceedings. Because we are reversing the trial court's
decision to terminate the respondents' parental rights, the Pilkingtons'
cross appeal is now moot. Nonetheless, if we were to decide the issue we
would agree with their contention that the trial court violated their due
process rights. The Due Process clause, US Const Am XIV, provides that an
interested party must be given notice in a way that is reasonably
calculated to apprise them of proceedings that may affect their interests,
affording them an opportunity to respond. Wortelboer v Benzie Co, 212 Mich
App 208, 218; 53 7 NW2d 603 (1995).
In the present case, the Pilkingtons did not file a petition to adopt
the minor children under the adoption code, MCL 710.21 et seq.; MSA
27.3178(555.21) et seq.; rather, they filed a petition to terminate
respondents' parental rights pursuant to the juvenile code, MCL 712A.1 et
seq.; MSA 27.3178(598.1) et seq. The trial court's order provided that the
Pilkingtons are not to be considered for adoption placement and also
ordered them to cease all contact with Gray and the two children. We
recognize that the trial court could order the Pilkingtons "to cease all
contact" with Gray and the children. See MCL 712A.6; MSA 27.3178(598.6)
which provides that the court can issue orders affecting adults as
necessary for the physical, mental or moral well-being of the children in a
parental termination case. However, we believe that the court exceeded its
statutory authority when it excluded the Pilkingtons from being potential
adoptive parents. See In re Miller, supra at 343 n 8, in which our Supreme
Court noted that "in determining whether to terminate parental rights, the
relative value of other placements for the child is not a valid
consideration." While we agree with the trial court that there is some
evidence of possible undue influence exerted on Gray by the Pilkingtons,
the issue of their suitability to adopt the children was not before the
court. Therefore, if we were to decide the issue, we would conclude that
the court's order violated the Pilkingtons’ right to due process when it
excluded them from being potential adoptive parents without granting them
notice and an opportunity to be heard on that issue.
_______________________________
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Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Roman S. Gribbs
/s/ Michael R. Smolenski
/s/ Hilda R. Gage
1 We wish to make clear that the reversal of the termination of parental
rights as to Green is based upon a lack of evidence in this record. Nothing
in this opinion precludes termination hearings in the future if otherwise
appropriate.
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