Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack, Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

October 2, 2020

161127

SC: 161127

In re R.J. WHISMAN, Minor. COA: 349933

St Joseph CC Family Division:

 2013-001005-NA

_______________________________________/

By order of July 24, 2020, petitioner Department of Health and Human Services 

was directed to answer the application for leave to appeal the February 18, 2020 

judgment of the Court of Appeals. On order of the Court, the answer having been 

received, the application for leave to appeal is again considered, and it is DENIED, 

because we are not persuaded that the questions presented should be reviewed by this 

Court. 

MCCORMACK, C.J. (dissenting).

I would peremptorily reverse the Court of Appeals and vacate the trial court’s 

order terminating the respondent’s parental rights. This father looks a lot like the father 

in In re Mason, 486 Mich 142 (2010), a case where we held that the trial court had clearly 

erred by terminating the respondent’s parental rights.

We said in Mason that “a parent’s past failure to provide care because of his 

incarceration . . . is not decisive.” Mason, 486 Mich at 161. In concluding that the 

respondent wouldn’t be able to provide proper care and custody within a reasonable time 

considering the child’s age, I believe the referee focused unduly on his incarceration, 

contrary to Mason. The referee also relied on the respondent’s extensive criminal record, 

but in Mason we also stated that “just as incarceration alone does not constitute grounds 

for termination, a criminal history alone does not justify termination.” Id. at 165.

Once paternity was conclusively established, the respondent urged the Department 

of Health and Human Services to place the child (RW) with his mother, executed a 

delegation of parental authority and kept it current throughout the proceedings, provided 

his mother with all the documentation needed to care for RW, and spoke to RW by
I, Larry S. Royster, 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.

 October 2, 2020

s0929

2

Clerk

telephone on several occasions. He also participated in services in prison. If 

incarceration alone is insufficient to justify termination of parental rights, as we held in 

Mason, it isn’t clear to me there is much more this respondent could have done to provide 

proper care and custody for RW under the circumstances.

At the time of the termination hearing in December 2018, the respondent asserted 

he would be able to provide proper care and custody for RW in 12 months, assuming he 

was paroled in October 2019.1

 The referee nonetheless concluded that the respondent 

would be unable to provide proper care and custody for RW within a reasonable time 

because “[the lawyer-guardian ad litem (LGAL)] pointed out that, by the time that [the 

respondent] might be in a position to even think about providing care for [RW], she’d be 

five years old, perhaps older.” But I see no place in the record where the LGAL said that, 

and to the extent that the referee relied on the respondent’s criminal history and substance 

abuse to conclude that he couldn’t provide care and custody for RW within a reasonable 

time, the referee’s conclusions seem like mere speculation. See Mason, 486 Mich at 162 

(concluding that “the court clearly erred by concluding, on the basis of [a foster-care 

worker’s] largely unsupported opinion, that it would take at least six months for 

respondent to be ready to care for his children after he was released from prison”). 

Finally, the referee failed to give RW’s placement with a relative proper weight as 

a factor counseling against termination. See Mason, 486 Mich at 163-164; MCL 

712A.19a(8)(a).2

 Indeed, if anything the referee appears to have weighed the relative 

placement in favor of termination based on its observation that “[RW] has permanence 

with her paternal grandmother. It is that permanence that she deserves to have continued 

and it’s on the [sic] basis that the Court finds that it would be in [RW]’s best interest for 

[the respondent’s] parental rights to be terminated.”

For these reasons, I respectfully dissent from the Court’s order denying leave to 

appeal. 

CAVANAGH, J., joins the statement of MCCORMACK, C.J.

 1 Respondent was in fact paroled in October 2019.

2 When Mason was decided, this provision was codified at MCL 712A.19a(6)(a). See 

2008 PA 200.