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 Cour t, 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.

M C C ORMACK

, C.J. ( dissenting )

.

I would peremptori ly 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 te rminating 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 “j ust 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 Ser vices 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 byI, 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 20 19. 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

w orker’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 f actor 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 respe ctfully dissent from the Court’s order denying leave to appeal.

C AVANAGH

, J., joins the statement of M C C ORMACK

, 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.