If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

UNPUBLISHED

In re BUGGS, Minors. March 7, 2019

No. 345801

Shiawassee Circuit Court

Family Division

LC No. 18-014255-NA

Before: METER, P.J., and SERVITTO and REDFORD, JJ.

PER CURIAM.

Respondent appeals as of right the trial court’s order terminating her parental rights to 

two of her three children under MCL 712A.19b(3)(f). Respondent does not challenge the factual 

basis for the termination or the trial court’s conclusion that termination was in the children’s best 

interests. Rather, respondent argues that the trial court’s application of subsection (f) violated 

her constitutional right to due process. We affirm.

“Both the Michigan Constitution and the United States constitution preclude the 

government from depriving a person of life, liberty, or property without due process of law.” In 

re TK, 306 Mich App 698, 706; 859 NW2d 208 (2014). See also US Const, Am V; Const 1963, 

art 1, § 17. Due process is comprised of both procedural and substantive components. 

“Procedural due process limits actions by the government and requires it to institute safeguards 

in proceedings that affect those rights protected by due process, such as life, liberty, or property.” 

In re AMB, 248 Mich App 144, 209; 640 NW2d 262 (2001) (internal citation and block notation

omitted). “Procedural due process requires notice and a meaningful opportunity to be heard 

before an impartial decision-maker.” In re TK, 306 Mich App at 706.

“The essence of a substantive due process claim is the arbitrary deprivation of liberty or 

property interests.” Id. Because parents have a protected liberty interest in the “companionship, 

care, custody, and management of their children,” due process demands that each “state-required 

breakup of a natural family” be supported by proof of the parent’s unfitness to parent his or her 

child. In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003). To facilitate respect for these rights, 

our Legislature has enumerated the grounds upon which the state may seek to terminate a 

respondent’s parental rights. See MCL 712A.19b(3). “In order to comply with the guarantees of 

substantive due process, the state must prove parental unfitness by at least clear and convincing 
-2-

evidence before terminating a respondent’s parental rights.” In re B and J, 279 Mich App 12, 

23; 756 NW2d 234 (2008) (internal citation and quotation marks omitted).

On appeal, respondent raises claims implicating both components of due process. 

Procedurally, respondent argues that MCL 712A.19b(3)(f) creates an irrebutable presumption of 

parental unfitness, thereby depriving her of a meaningful opportunity to be heard before 

termination of her parental rights. Substantively, respondent argues that petitioner created the 

conditions underlying the termination of her parental rights, rendering the termination an 

arbitrary exercise of the states parens patriae power. We address each argument in turn.

I. RESPONDENT’S PROCEDURAL DUE-PROCESS CHALLENGE

The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(f), which 

provides:

The court may terminate a parent’s parental rights to a child if the court finds, by 

clear and convincing evidence, 1 or more of the following:

* * *

(f) The child has a guardian under the estates and protected individuals 

code, 1998 PA 386, MCL 700.1101 to 700.8206, and both of the following have 

occurred:

(i) The parent, having the ability to support or assist in supporting the 

minor, has failed or neglected, without good cause, to provide regular and 

substantial support for the minor for a period of 2 years or more before the filing 

of the petition or, if a support order has been entered, has failed to substantially 

comply with the order for a period of 2 years or more before the filing of the 

petition.

(ii) The parent, having the ability to visit, contact, or communicate with 

the minor, has regularly and substantially failed or neglected, without good cause, 

to do so for a period of 2 years or more before the filing of the petition.

Respondent’s procedural challenge to subsection (f) comes on the heels of this Court’s 

conclusion that the prior version of subsection (l) violated respondents’ rights to procedural due 

process because it “essentially allow[ed] a trial court to proceed directly to a best-interest 

determination.” In re Gach, 315 Mich App 83, 98; 889 NW2d 707 (2016). Subsection (l) 

authorized termination when the “parent’s rights to another child were terminated as a result” of 

previous child-protective proceedings. MCL 712A.19b(3)(l), as amended by 2012 PA 368. This 

Court reasoned that subsection (l) created a “presumption of a respondent’s unfitness when that 

respondent has been subjected to a prior termination.” Gach, 315 Mich App at 99. In other 

words, upon a finding of a previous termination, the trial court could automatically proceed to 

the best-interest stage, at which the standard of proof lowers to a preponderance of the evidence. 

Respondents with prior terminations had no reasonable opportunity to rebut the presumption of 

unfitness while the constitutionally-required clear-and-convincing-evidence standard controlled. 
-3-

Id. Accordingly, this Court concluded that subsection (l) infringed upon respondents’ right to a 

meaningful opportunity to be heard before termination of their parental rights.1 Id. at 100-101.

Subsection (f) does not raise the same concerns as subsection (l). Contrary to 

respondent’s assertions, subsection (f) contains no presumption of unfitness—either rebuttable or 

irrebutable. Rather, subsection (f) requires the petitioner to set forth clear and convincing 

evidence showing that (1) the child is subject to a guardianship, (2) the respondent is able to 

support and communicate with the child, and (3) the respondent has failed to support and 

communicate with the child for at least two years. MCL 712A.19b(3)(f). Similar to subsection 

(l), the first showing—the fact of guardianship—may be easily proven by reference to the 

relevant legal documents creating the guardianship. Yet, unlike subsection (l), the latter two 

showings—ability to support and communicate and a failure to do so—are fact-intensive. In this 

case, the trial court heard testimony from six witnesses about respondent’s interactions with the 

children before it found that respondent failed to provide support for the children and regularly 

and substantially failed to communicate with the children. Indeed, respondent testified on her 

own behalf that she had attempted to contact the children on a handful of occasions. In short, 

there is no concern that subsection (f) denies respondent a meaningful opportunity to be heard at 

the adjudicative stage.

II. RESPONDENT’S SUBSTANTIVE DUE-PROCESS CHALLENGE

We also reject respondent’s argument that the children’s guardian, as petitioner in this 

matter, unjustly manufactured the conditions that supported termination of parental rights. The 

children were removed from respondent’s care in 2010 and placed with petitioner. The record 

shows that respondent has been in and out of drug-rehabilitation clinics and has not seen the 

children or provided support for them since 2012. Respondent acknowledges her drug issues but 

argues that, despite these issues, she continued to contact the children. Respondent, however, 

asserts that petitioner refused to allow her to speak with the children. For her part, petitioner 

acknowledged that she told respondent that she could not see the children because respondent 

missed several visits with the children without a valid excuse. Moreover, petitioner testified that 

she did not always let respondent talk to the children when respondent called because she did not 

see the benefit in letting respondent talk to the children, given that respondent was rotating 

between rehab, jail, and “the streets.” Nevertheless, petitioner testified that respondent only 

called sporadically and would fail to call for months at a time.

Respondent argues that petitioner’s refusal to allow her to contact the children created the 

conditions supporting the termination of her parental rights. Respondent is correct that, 

generally, a petitioner may not create the conditions that support the termination of parental 

 1 Our Legislature has since amended subsection (l) to rectify this constitutional infirmity. See 

2018 PA 58. In pertinent part, the current version of subsection (l) authorizes termination only 

when the respondent has failed to rectify the conditions leading to the prior termination. MCL 

712A.19b(3)(l), as amended by 2018 PA 58.
-4-

rights.

2 In re B & J, 279 Mich App at 19-20. Yet, in this case, it is clear that petitioner’s actions 

were not the sole reason respondent failed to contact her children. Of particular importance to 

this case, respondent had sought to amend the guardianship roughly 18 months before the 

termination hearing. The trial court denied the amendment, but told respondent to come back in 

six months after she proved that it was in the best interest of her children to be in her life. 

Respondent admits that she failed to return to the court to make this showing. Moreover, the 

record shows that petitioner’s refusal to allow respondent to contact the children was predicated 

on respondent’s criminality, drug use, and failure to attend scheduled visits. Petitioner can 

hardly be faulted for respondent’s drug use and inattention to her children, nor can she be faulted 

for shielding the children from respondent’s lifestyle. This is not a case where petitioner cut off 

an appropriate line of communication between respondent and her children. Rather, it was 

respondent’s own actions that precluded her from communicating with her children. 

Accordingly, we are unable to find that petitioner created the conditions underlying the trial 

court’s termination of respondent’s parental rights.

Affirmed.

/s/ Patrick M. Meter

/s/ Deborah A. Servitto

/s/ James Robert Redford

 2 We note that the due-process clauses generally preclude arbitrary governmental action. See In 

re B and J, 279 Mich App at 19 (“[A] state may not, consistent with due process of law, create 

the conditions that will strip an individual of an interest protected under the due process clause.”) 

(internal citation and quotation marks omitted). Here, petitioner is not a governmental agent; 

rather, petitioner is the child’s non-governmental legal guardian. Nonetheless, we need not 

determine whether the rule precluding state actors from creating the conditions underlying the 

deprivation extends to non-governmental guardians. Assuming that the rule so applies, 

respondent has not shown that petitioner’s actions created the conditions upon which 

respondent’s parental rights were terminated.