                          STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re STURGIS, Minors.                                               April 28, 2015

                                                                     No. 324127
                                                                     Wayne Circuit Court
                                                                     Family Division
                                                                     LC No. 13-514853-NA


Before: M. J. KELLY, P.J., and WILDER and K. F. KELLY, JJ.

PER CURIAM.

        Petitioner, who is the mother of the two minor children at issue, appeals by right the trial
court’s order denying her request to terminate the parental rights of respondent, who is the father
of the children and petitioner’s former husband, and dismissing jurisdiction over the children.
For the reasons more fully explained below, we vacate the trial court’s order and remand for a
hearing on the children’s best interests.

                                        I. BASIC FACTS

        Petitioner and respondent were apparently married in 1998. They had two children: URS
in 1998 and BJS in 2001. In 2000, petitioner sued respondent for divorce and the trial court
granted the divorce. See Sturgis v Sturgis, 302 Mich App 706, 711; 840 NW2d 408 (2013). In
the judgment of divorce, the trial court provided respondent with supervised parenting time, but
over the years the trial court entered several orders changing his parenting time from supervised
to unsupervised and back again. The trial court also suspended respondent’s parenting time on
several occasions. Id.

       In 2004, respondent was living with his then pregnant girlfriend and her two children
from a previous relationship when the Department of Human Services removed the girlfriend’s
two children from the household. See In re Stephens, unpublished opinion per curiam of the
Court of Appeals, issued March 29, 2007 (Docket Nos. 271015 and 271016). The Department
removed the children on the basis of evidence that respondent physically abused his girlfriend’s
children; specifically, evidence that he burned one child with scalding water after a potty-training
incident and used inappropriate discipline, including whippings with a belt. Id. There was
evidence that respondent had convictions for two separate incidents of criminal sexual conduct,
an explosive temper, and that he refused to take responsibility for his inappropriate acts,
including the conduct that resulted in his convictions, which suggested that he would continue to
pose a danger to the children. Id. Respondent’s girlfriend gave birth to their child in 2004 and
respondent married his girlfriend in 2005. After respondent failed to benefit from services, the
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Department sought termination of respondent’s parental rights to his newborn child and the trial
court ultimately granted the request in 2006. Id.

        In 2006, respondent had another child with his wife and the Department similarly
removed that child from respondent’s care. See In re Sturgis, unpublished opinion per curiam of
the Court of Appeals, issued May 15, 2008 (Docket Nos. 280118 and 280119). The trial court in
that case terminated respondent’s rights to the child in 2007. The court relied on the evidence of
abuse involving the child’s siblings and the evidence that respondent still refused to accept
responsibility for his actions. Id.

        In 2012, respondent sought a change in custody in the divorce case, which petitioner
opposed. Petitioner also asked the trial court to terminate respondent’s parental rights to the
minor children. The trial court denied respondent’s motion to change custody, but reinstated his
parenting time. The court also refused to consider petitioner’s request to terminate respondent’s
parental rights because it had not handled a termination case before; instead, it stated that
petitioner should file a petition to terminate in the family division of the circuit court. See
Sturgis, 302 Mich App at 709.

       Petitioner appealed in this Court and this Court determined that the trial court did not err
when it refused to consider her request to terminate respondent’s parental rights. Id. However,
this Court agreed that the trial court erred when it reinstated respondent’s parenting time:

               While we generally affirm parenting-time orders, the record in this case
       simply demands a different result, and we specifically hold that the trial court’s
       findings with regard to the lack of a reasonable likelihood of abuse or neglect
       were against the great weight of the evidence and that the court committed a
       palpable abuse of discretion. The record, including [respondent’s] criminal sexual
       conduct convictions, his son’s plea that he not be in [respondent’s] care, and
       [respondent’s] abhorrent, abusive behavior towards the other children in cases
       before this Court strongly suggest a “reasonable likelihood of abuse or neglect of
       the child during parenting time.” Indeed, [respondent’s] history of violence,
       repugnant disciplinary tactics, and outright denial of culpability indicate a strong
       likelihood of continued abuse, just as the Court found in [his] prior termination
       cases. [Id. at 714-715 (citations omitted).]

       For those reasons, this Court affirmed the trial court in part, but reversed its parenting
time decision. Id. at 715.

        In October 2013, after this Court affirmed the trial court’s decision to refuse to hear
petitioner’s request to terminate respondent’s parental rights in the divorce case, petitioner filed
the present petition to terminate respondent’s parental rights. In her petition, petitioner relied on
the prior termination cases as evidence that respondent was abusive and posed a danger to the
children. She specifically alleged that he had not benefited from the services provided in those
cases and continued to blame others rather than accept responsibility for his actions. She also
alleged that he had exposed the children to pornographic materials, which resulted in the children
engaging in inappropriate sexual behaviors. Petitioner amended her petition in November 2013
to include new allegations. On the basis of the allegations, she asked the trial court to take

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jurisdiction of the children under MCL 712A.2(b)(1) and (b)(2), and terminate respondent’s
parental rights to the children under MCL 712A.19b(3)(g), (i), (j), (l), and (n).

       The trial court held a trial over two days in May 2014. At the trial, petitioner tried to
present evidence of respondent’s prior history of abuse and neglect, which warranted limiting
him to supervised parenting time. However, the trial court expressed reservations about the
relevance of any testimony concerning past allegations and instructed petitioner’s lawyer to call
his next witness. Thereafter, petitioner primarily presented evidence that the children had acted
out in sexually inappropriate ways and that the problem originated from their exposure to
pornographic materials while in respondent’s care. In addition to the evidence concerning the
children’s exposure to pornography, URS testified that his father threatened him with a gun and
would give him “whippings.”

         After the close of proofs, the trial court acknowledged the testimony and evidence,
including respondent’s criminal history and history of prior terminations, but found that the
children’s testimony was unhelpful. It found that the testimony by URS was “utterly fantastic”
and opined that it was a “shame that he was brought in here to testify.” For that reason, it
rejected his testimony. The court agreed that there was evidence to support taking jurisdiction,
but stated that the evidence for termination was “minuscule.” It felt the evidence was
insufficient despite recognizing that respondent’s parental rights to other children had been
terminated for abuse and despite the evidence that he had been convicted of two separate
incidents of criminal sexual conduct. The court concluded by stating that there would be a best
interests hearing after a clinical evaluation. After a meeting in chambers, the trial court clarified
that it found insufficient evidence to support a ground for termination. Instead, it submitted the
matter to another judge—with the parties’ agreement—to consider whether the court should
retain jurisdiction.

       A different judge held a dispositional hearing in August 2014. The court stated that it
would dismiss jurisdiction because petitioner failed to substantiate the allegations. The trial
court entered an order dismissing jurisdiction in September 2014. In an addendum attached to
the order, the trial court opined that the children were not in danger and that it was not in the
children’s best interests to terminate respondent’s parental rights.

       Petitioner then appealed in this Court.

                                       II. TERMINATION

                                 A. STANDARDS OF REVIEW

        On appeal, petitioner argues that the trial court clearly erred when it found that she failed
to establish grounds for termination and that termination was in the children’s best interests.
Before terminating a respondent’s parental rights, the trial court must find that at least one of
the statutory grounds listed in MCL 712A.19b(3) has been established by clear and
convincing evidence. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). Once the
trial court finds that a statutory ground has been proved by clear and convincing evidence,
the court must order termination of parental rights if it also finds that termination is in the
child’s best interests. MCL 712A.19b(5). This Court reviews for clear error the trial court’s

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determination that a ground for termination has been proved by clear and convincing evidence
and that termination is in the child’s best interests. In re Rood, 483 Mich 73, 90-91, 126 n 1; 763
NW2d 587 (2009); MCR 3.977(K).

                                          B. ANALYSIS

         The present appeal has been somewhat complicated by the trial court’s use of imprecise
language in making its findings and determinations; the trial court stated that it found grounds
for taking jurisdiction, found that the evidence for termination was miniscule, and then stated
that it would need to conduct a best interests hearing, which would normally only be necessary if
it found that petitioner had established a ground for termination. See, generally, In re Sanders,
495 Mich 394, 405-407; 852 NW2d 524 (2014) (explaining the difference between the trial or
adjudicative phase in which the trial court considers the evidence in support of asserting
jurisdiction over the children and the dispositional phase in which the trial court determines how
best to protect the children and which may result in termination of the parent’s parental rights);
MCL 712A.19b(5) (stating that the trial court must terminate the parent’s parental rights if it
finds a ground for termination and that termination is in the child’s best interests). After a
meeting in chambers, the trial court clarified that it found that petitioner had not established a
ground for termination and that no best interests hearing would be required. It then referred the
matter to another judge for a determination on the propriety of continuing jurisdiction. That
judge held a dispositional hearing and found that petitioner had not substantiated the allegations,
which seemed to contradict the prior finding of jurisdiction, and then proceeded to find that
termination would not be in the children’s best interests. The court then recommended that
jurisdiction be dismissed.

        The judge who conducted the trial did not clearly err when it found that there was
sufficient evidence to warrant taking jurisdiction over the children. In re Sanders, 495 Mich at
405. However, to the extent that the trial court found that petitioner had not established by clear
and convincing evidence any ground for termination, its finding was clearly erroneous. MCR
3.977(K). Even if the trial court was unwilling to accept the oldest child’s testimony,
respondent’s history with Child Protective Services was sufficient to permit a finding that
grounds for termination were established under MCL 712A.19b(3)(g) and (j) by clear and
convincing evidence. Respondent’s history of abuse and use of inappropriate discipline with the
other children permits an inference that he will subject the children at issue here to similar abuse
and extreme discipline. See In re Hudson, 294 Mich App 261, 266; 817 NW2d 115 (2011).
Moreover, it was undisputed that respondent had had his parental rights to two other children
terminated after it was found that he abused the children’s siblings, had not benefited from his
services, and posed a risk of abuse to his children. This evidence established grounds for
terminating respondent’s parental rights under MCL 712A.19b(3)(i). Yet the trial court
inexplicably stated that there was minuscule evidence to establish a ground for termination.
Only one statutory ground needs to be proved in order to terminate parental rights. In re
McIntyre, 192 Mich App 47, 50; 480 NW2d 293 (1991). Consequently, we are left with the
definite and firm conviction that the trial court erred when it found that petitioner failed to
establish any ground for termination.




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        To terminate parental rights, the trial court must find that at least one of the statutory
grounds for termination set forth in MCL 712A.19b(3) has been met by clear and convincing
evidence and that termination is in the best interests of the children. MCL 712A.19b(5); In re
Sours, 459 Mich 624, 632-633; 593 NW2d 520 (1999). Although the court that handled the
dispositional hearing after the adjudicative trial opined that termination was not in the children’s
best interests, it did not address that finding in such a way as to permit meaningful appellate
review. See MCR 3.977(I). Moreover, as already noted, the court that conducted the trial found
that petitioner had not established a ground for termination and referred the case to the new judge
for a hearing on whether to retain jurisdiction; as such, it is unclear whether the best interests
finding was related to that issue. Therefore, we cannot affirm on the alternate ground that the
trial court found that termination was not in the children’s best interests under the totality of the
circumstances. Because the trial court clearly erred when it found that petitioner had not
established a ground for termination and did not sufficiently address the best interests of the
children, it is necessary to remand for a hearing on the children’s best interests.

        We are further troubled by the trial court’s failure to address the prior termination
proceedings and the details of respondent’s criminal history. Even though petitioner did not
flesh out the details of these prior events at the termination trial, the trial court had ready access
to the three opinions from this Court, which would have shed light on the nature and severity of
the prior abuse, and could have obtained records on the convictions. The trial court recognized
that respondent’s parental rights were terminated to other children, but then failed to consider the
reasons why his parental rights were terminated and what that might mean for the children in this
case. As already discussed, this Court previously determined that the record, including
respondent’s criminal sexual conduct convictions, his son’s plea that he not be placed in his
father’s care, and respondent’s abhorrent, abusive behavior toward other children in his
household, supported a finding that he might abuse or neglect these children too. Sturgis, 302
Mich App 714-715.

        The evidence of the circumstances surrounding respondent’s criminal sexual conduct
convictions,1 his prior acts of physical abuse, and his anger issues might also have provided the
trial court with valuable insight into the children’s testimony. It might have helped the trial court
better evaluate whether URS was telling the truth when he testified that his father whipped him
and threatened him and was relevant to determining whether respondent posed a risk to the
children. As this Court has explained, a trial court’s findings on the best interests of the children
should be informed by the totality of the surrounding circumstances:

               The trial court should weigh all the evidence available to determine the
       children’s best interests. To determine whether termination of a parent’s parental
       rights is in a child’s best interests, the court should consider a wide variety of
       factors that may include the child’s bond to the parent, the parent’s parenting



1
 A review of the records involved in prior appeals suggests that one incident involved a multiple
offender situation with a weapon and forced sexual acts and the other incident involved a person
who was mentally incapable of consent.


                                                 -5-
        ability, the child’s need for permanency, stability, and finality, and the advantages
        of a foster home over the parent’s home. The trial court may also consider a
        parent’s history of domestic violence, the parent’s compliance with his or her case
        service plan, the parent’s visitation history with the child, the children’s
        well‐being while in care, and the possibility of adoption. [In re White Minors,
        303 Mich App 701, 713‐714; 846 NW2d 61 (2014) (citations and quotation marks
        omitted).]

Accordingly, in making its findings on remand, the trial court shall specifically address the facts
of respondent’s prior terminations and his criminal conduct and how those facts impacted its best
interests determination.

                                        III. CONCLUSION

        For these reasons, we vacate the trial court’s order dismissing the petition and remand for
a hearing to determine whether termination of respondent’s parental rights are in the children’s
best interests. On remand, the trial court shall make a factual record and determination regarding
the best interests of each child individually. In rendering its decision, the trial court shall address
whether and to what extent the facts involved in respondent’s prior terminations and his criminal
history informed the court’s findings concerning the children’s best interests. Finally, the trial
court shall enter an order consistent with its findings.

        Vacated and remanded for further proceedings consistent with this opinion. We retain
jurisdiction.

                                                               /s/ Michael J. Kelly
                                                               /s/ Kurtis T. Wilder


K. F. Kelly, J., did not participate.




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                                Court of Appeals, State of Michigan

                                                  ORDER
                                                                                Michael J. Kelly
In re Sturgis Minors                                                             Presiding Judge

Docket No.      324127                                                          Kurtis T. Wilder

LC No.          13-514853-NA                                                    Kirsten Frank Kelly
                                                                                 Judges


               Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.

                Proceedings on remand in this matter shall commence within 56 days of the Clerk's
certification of this order, and they shall be given priority on remand until they are concluded. As stated
in the accompanying opinion, we remand this case for a hearing to determine whether termination of
respondent's parental rights are in the children's best interests. On remand, the trial court shall make a
factual record and determination regarding the best interests of each child individually. In rendering its
decision, the trial court shall address whether and to what extent the facts involved in respondent's prior
terminations and his criminal history informed the court's findings concerning the children's best
interests. Finally, the trial court shall enter a dispositional order consistent with its findings. Should the
trial court deem it necessary, it may in its discretion take additional evidence.

              The parties shall promptly file with this Court a copy of all papers fi led on remand.
Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.

               The transcript of all proceedings on remand shall be prepared and filed within 21 days
after completion of the proceedings.




K. F. Kelly, J., did not participate.




                           A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on




                                        APR 2 8 Z015
                                           Date
