Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr., Chief Justice

Michael F. Cavanagh

Marilyn Kelly

Stephen J. Markman

Diane M. Hathaway

Mary Beth Kelly

Brian K. Zahra, Justices

Order 

January 27, 2012

10/October 2011

142568

SC: 142568

In re MAYS, Minors. COA: 297446

Wayne CC Family Division:

09-485821

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On order of the Court, leave to appeal having been granted, and the briefs and oral 

arguments of the parties having been considered by the Court, we AFFIRM in part and 

REVERSE in part the November 23, 2010 judgment of the Court of Appeals and the 

March 30, 2010 order of the Wayne Circuit Court terminating respondent mother’s 

parental rights, and REMAND this case to the Wayne Circuit Court, Family Division, for 

further proceedings not inconsistent with this order.

We AFFIRM that part of the Court of Appeals judgment holding that the trial 

court did not clearly err in finding that clear and convincing evidence was presented to 

support termination under at least one of the statutory grounds alleged. MCL 

712A.19b(3).

We REVERSE that part of the Court of Appeals judgment holding that the trial 

court did not clearly err in finding that termination was in the children’s best interests. 

MCL 712A.19b(5). The factual record in this case is inadequate to make a best interests 

determination. In particular, there is no evidence in the record that the trial court 

considered whether termination of the respondent’s parental rights was appropriate given 

the children’s placement with their maternal grandmother. In re Mason, 486 Mich 142, 

164 (2010).

Because respondent’s appeal in the Court of Appeals only questioned the trial 

court’s findings that the statutory grounds for termination existed and that termination 

was in the best interests of the children, we do not reach respondent’s claim of error 

regarding the sufficiency of the permanency planning hearing, MCL 712A.19a.

We do not retain jurisdiction.
2

HATHAWAY, J., concurs in the result only.

MARKMAN, J. (dissenting). 

I respectfully dissent from the orders reversing both the Court of Appeals’ and the 

trial court’s decisions to terminate respondents’ parental rights and I would vacate this 

Court’s March 23, 2011 orders, 489 Mich 857 (2011), and deny leave to appeal. I am 

persuaded that the proceedings here were fair and in accordance with the law, and that the 

trial court exercised reasonable judgment in concluding that grounds existed for 

termination, and that termination was in the “best interests” of the children. 

Considerable efforts were undertaken to reunify respondents with their children, 

although these efforts clearly failed. Respondent Mays failed to successfully complete 

and benefit from counseling and parenting classes, and further failed to maintain legal 

employment. Respondent Phillips failed to successfully complete and benefit from 

counseling and further failed to maintain adequate shelter or legal employment. 

Additionally, Phillips testified that he has never expressed any desire for the children to 

come live with him and that the children were better off living with their grandmother. 

Two review hearings were then held, with Mays choosing not to attend either hearing and 

Phillips attending only one. Under these circumstances, I cannot say that the trial court 

“clearly erred” by finding that respondents have “fail[ed] to provide proper care or 

custody for the child[ren] and there is no reasonable expectation that [they] will be able 

to provide proper care and custody within a reasonable time . . . .” MCL 712A.19b(3)(g). 

I also do not believe that the trial court “clearly erred” by concluding that 

termination of respondents’ parental rights was in the children’s “best interests” because 

“neither parent is prepared to have the children placed in their care and neither is engaged 

in preparing themselves to parent the children on a full time basis.” The majority does 

not dispute this conclusion, but asserts that the record is “inadequate to make a best 

interests determination.” Again, I respectfully disagree. There is no specific formula, 

and there are no delimited factors that a court must consider when making a “best 

interest” determination. Rather, the trial court “may consider evidence introduced by any 

party,” In re Trejo Minors, 462 Mich 341, 353 (2000), and if no “best interest” evidence 

is offered, the court may enter a finding “from evidence on the whole record . . . .” The 

record here, which included hearings, reports, and testimony, was more than sufficient, in 

my opinion, to allow the court to make a thoughtful and reasoned “best interest” 

determination. In particular, the majority faults the court for not considering the 

children’s placement with a relative. However, the proposition that a court must always 

consider placement with a relative before termination, even after grounds for termination 

have been established and “best interest” findings made, lacks grounding in the law, 

which contains no specific factors that a court must invariably consider in deciding a 

termination case. Rather, what is required is a case-by-case determination in accordance 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 _________________________________________

 Clerk

January 27, 2012

t0125

3

with the law, and that has occurred. While placement with a relative may in many 

instances constitute a relevant consideration in the “best interest” determination, the 

failure to consider it in a particular case does not necessarily preclude the court from 

determining that termination is in the children’s “best interests.” The primary beneficiary 

of the “best interest” determination is the child, Trejo, at 356, and when the child’s best 

interests are clearly served by the termination of rights, the fact that they are then living 

with a relative does not in every instance undermine that determination.