Termination of parental rights; Best interests of the child; MCL 712A.19b(5); In re Olive/Metts Minors; Consideration of the statutory best-interest factors; MCL 722.23; In re McCarthy

Holding that the trial court and the referee erred by finding termination of respondent-father’s parental rights was not in the child’s best interests, the court vacated and remanded. The trial court initially found it was not in the child’s best interests to terminate respondent’s parental rights. In a prior appeal, the court reversed and remanded, instructing the trial court to enter an order terminating his parental rights. Thereafter, the Child Welfare Appellate Clinic at the University of Michigan Law School filed a motion for reconsideration because respondent did not have appellate counsel during the appeal. The court granted the motion, vacated its earlier opinion, and ordered the matter remanded to the trial court for the appointment appellate counsel. In the present appeal, the court agreed with the DHHS that the trial court erred by finding termination of respondent’s parental rights was not in the child’s best interests. “[O]ur review of the record shows that the referee did not weigh the evidence available on the whole record in determining the child’s best interests and failed to consider that the child’s interest in a normal family home was superior to any interest respondent had. Instead, the referee seemed to base her decision on the child engaging in a couple of telephone calls a month with respondent.” The referee also “made no mention of other factors and did not reference other testimony or documents in the record. [She] did not consider respondent’s parenting ability, including [his] failure to complete parenting classes and his absences from her life, including his disappearances and incarcerations.” In addition, she failed to “consider the advantages of the foster home over what respondent could provide.” Further, the referee “took no notice of the child’s history of abuse while in her mother’s care.” And for the previous two years, “the child had been in a foster home where she felt loved, safe, and secure.” On this record, “we disagree that there was ‘no testimony whatsoever’ that maintaining a relationship with respondent would be detrimental to the child, but would be ‘a benefit to her.’”