Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  November 12, 2010                                                                          Marilyn Kelly,
                                                                                                 Chief Justice

  141818                                                                              Michael F. Cavanagh
                                                                                        Maura D. Corrigan
                                                                                       Robert P. Young, Jr.
                                                                                       Stephen J. Markman
                                                                                       Diane M. Hathaway
  In re O’BERRY, Minors.                                                              Alton Thomas Davis,
                                                                                                      Justices
  _________________________________________
  DEPARTMENT OF HUMAN SERVICES,
              Petitioner-Appellee,
  v                                                        SC: 141818
                                                           COA: 295077
                                                           Oakland CC
  CARRIE SMYTH,                                            Family Division: 07-729356-NA
             Respondent-Appellant.
  _________________________________________/

        On order of the Court, the application for leave to appeal the September 7, 2010
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

          CORRIGAN, J. (dissenting).

          I would grant the respondent mother’s application for leave to appeal in this
  significant child protection case. The trial court concluded, on the basis of close facts,
  that termination of respondent’s rights to her three young children1 was in the children’s
  best interests under MCL 712A.19b(5). This statute was amended in 20082 to require an

  1
    Respondent’s infant twins were removed from her care by the Department of Human
  Services (DHS) after respondent brought one infant to the hospital with a broken leg;
  although she promptly sought medical attention and had not been present when the injury
  was inflicted, the trial court concluded in part that she had failed to protect the child from
  his abusive father. Based in part on this incident, the court also granted the DHS’s
  petition to remove respondent’s new baby, who was born some months later to a different
  father. After the children were removed respondent was required to participate in a
  Parent-Agency Agreement administered by the DHS in order to regain custody of the
  children. The record reflects that she participated with some success, but also had lapses
  in participation.
  2
      2008 PA 199.
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affirmative finding by the trial court “that termination of parental rights is in the child’s
best interests” before the court may terminate parental rights under the statutory
subsections at issue here. But the Legislature did not specify what quantum of proof—
e.g. clear and convincing evidence or a preponderance of the evidence—is applicable to
this crucial finding. Nor did the trial court here specify what quantum of proof it applied
to the evidence when it reached its decision. Significantly, the court itself acknowledged
that this was a difficult “disconcerting case.”3 Further, the court relied in part on the
equivocal testimony of a psychologist who opined that he was “leaning towards”
recommending termination but was “not going to throw in the towel and say it’s a
hopeless situation.”4 Accordingly, the applicable quantum of proof was critical to the
outcome. If this Court were to conclude that a prosecutor must prove that termination is
in a child’s best interests by clear and convincing evidence—just as the

3
    Indeed, the court began its ruling by listing respondent’s good qualities and
accomplishments. The court found the fact that respondent had established a home for
her children by the time of the trial “very impressive.” It found her efforts to pursue
education “in pharmacy” reasonable and laudable. It observed that she “doggedly
pursued” creating a good life for herself and her children, and had attended “a great
number of sessions” required by the DHS Parent-Agency Agreement although she lacked
a vehicle and was undergoing a difficult pregnancy. “Over all this period of time,” said
the court, “she’s demonstrated a lot of strong qualities that [it] would expect will benefit
her far into the future.” Nonetheless, the court concluded that her successes were “too
little, too late” to afford permanency for the children.
4
  The psychologist, who evaluated respondent once prior to the best interests hearing,
testified that “perhaps it would be better to terminate parental rights” because respondent
made “heavy use of denial,” was unwilling “to acknowledge any deficiencies or problems
or shortcomings as a parent,” and was “very likely to continue to be inconsistent in her
ability to comply with the Court’s expectations.” But he admitted that he had been
unaware of some facts underlying the case. For example, although he partially based his
opinion on his understanding that she twice tested positive for marijuana after her
children had been removed, he was unaware that she had successfully passed numerous
other drug screens. He was also unaware of other details such as that she was
experiencing a high-risk pregnancy and was without a vehicle during the time she was
required to comply with the DHS’s programming. Although he stated that such details
would not affect his recommendation, his recommendations remained equivocal. He
stated: “My recommendation was that because I don’t know all the facts that
consideration be given to termination of parental rights.” The court responded: “What
does that mean? Is that a recommendation or a suggestion?” The psychologist answered:
“That’s where I’m leaning towards, your Honor. That is what I feel based on the
information that I have what might be the best for the children.” He added that he was
“not going to throw in the towel and say it’s a hopeless situation,” but also concluded that
the probability of respondent being noncompliant again was “high.”
                                                                                                               3

prosecutor must prove the initial grounds for termination by clear and convincing
evidence, MCL 712A.19b(3)—a remand would be necessary for the trial court to
consider the best interests evidence under this standard and to rearticulate, and potentially
reverse, its ruling.

       CAVANAGH, J., joins the statement of CORRIGAN, J.




                         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.
                         November 12, 2010                   _________________________________________
       p1109                                                                 Clerk
