Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  January 27, 2012                                                                     Robert P. Young, Jr.,
                                                                                                 Chief Justice

  10/October 2011                                                                      Michael F. Cavanagh
                                                                                             Marilyn Kelly
                                                                                       Stephen J. Markman
  142566                                                                               Diane M. Hathaway
                                                                                           Mary Beth Kelly
                                                                                           Brian K. Zahra,
                                                                                                      Justices
                                                            SC: 142566
  In re MAYS, Minors,                                       COA: 297447
                                                            Wayne CC Family Division:
                                                            09-485821
  _________________________________________/

         On order of the Court, leave to appeal having been granted, and the briefs and oral
  arguments of the parties having been considered by the Court, we REVERSE the
  November 23, 2010 judgment of the Court of Appeals and the March 30, 2010 order of
  the Wayne Circuit Court terminating respondent father’s parental rights, and REMAND
  this case to the Wayne Circuit Court, Family Division, for further proceedings not
  inconsistent with this order.

         The trial court clearly erred in finding that respondent “failed to successfully
  complete and benefit from . . . parenting classes.” To the contrary, respondent submitted
  his certificate of completion from his parenting classes to the trial court and the witness
  for the petitioner was satisfied that respondent completed that requirement. Moreover,
  several additional facts underpinning the statutory basis for termination were established
  on the basis of hearsay testimony. MCR 3.977(F)(1)(b) requires “legally admissible
  evidence” that the grounds for termination are established when the petitioner seeks to
  terminate parental rights “on the basis of one or more circumstances new or different
  from the offense that led the court to take jurisdiction,” as petitioner acknowledges was
  the case with respect to respondent’s termination proceeding. For these reasons, the trial
  court clearly erred in concluding that a statutory basis existed for termination of
  respondent’s parental rights. Accordingly, we REVERSE that part of the Court of
  Appeals judgment holding that the trial court did not clearly err in finding that a statutory
  basis existed for termination of respondent’s parental rights.

         We also REVERSE that part of the Court of Appeals judgment holding that the
  trial court did not clearly err in finding that termination was in the children’s best
  interests. MCL 712A.19b(5). The factual record in this case is inadequate to make a best
  interests determination. In particular, there is no evidence in the record that the trial court
  considered whether termination of the respondent’s parental rights was appropriate given
  the children’s placement with their maternal grandmother. In re Mason, 486 Mich 142,
  164 (2010).

         Because respondent’s appeal in the Court of Appeals only questioned the trial
  court’s findings that the statutory grounds for termination existed and that termination
  was in the best interests of the children, we do not reach respondent’s claim before this
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Court that the “one-parent doctrine,” as articulated in In re CR, 250 Mich App 285
(2001), violates his “fundamental liberty interest . . . in the care, custody, and
management of [his] child[ren].” Santosky v Kramer, 455 US 745, 753 (1982). 1 For this
reason, we also do not reach respondent’s claim of error regarding the sufficiency of the
permanency planning hearing, MCL 712A.19a.

         We do not retain jurisdiction.

         HATHAWAY, J., concurs in the result only.

         MARILYN KELLY, J.

        I strongly believe that in deciding this case the Court should have reached the
issue of whether the “one parent doctrine” should be upheld. The “one parent doctrine”
derives from the 2002 Court of Appeals decision in In re CR. 2 It allows the state to take
jurisdiction over abused or neglected children on the basis of the actions of only one
parent.

      In re CR stated, “[O]nce the family court acquires jurisdiction over the children,
MCR 5.973(A)[3] authorizes the family court to hold a dispositional hearing ‘to determine
measures to be taken . . . against any adult. . . .’” 4 The Court further opined that “the

1
  The constitutionality of the “one parent doctrine” is obviously a jurisprudentially
significant issue and one which this Court will undoubtedly soon be required to address
given the widespread application of this doctrine. Respondent’s failure to preserve this
challenge in the trial court or the Court of Appeals illustrates the need to raise this issue
in a timely fashion. See In re Hatcher, 443 Mich 426 (1993). At any rate, respondent
will have the continuing opportunity to raise this issue on remand. MCL 712A.19; MCL
712A.21.
2
    In re CR, 250 Mich App 185, 202 (2002).
3
 MCR 5.973(A) is now MCR 3.973(A). The In re CR Court noted, 250 Mich App at 202
n 35, that this rule has a statutory corollary in MCL 712A.6, which provides:

                The court has jurisdiction over adults as provided in this chapter and
         as provided in chapter 10A of the revised judicature act of 1961, 1961 PA
         236, MCL 600.1060 to 600.1082, and may make orders affecting adults as
         in the opinion of the court are necessary for the physical, mental, or moral
         well-being of a particular juvenile or juveniles under its jurisdiction.
         However, those orders shall be incidental to the jurisdiction of the court
         over the juvenile or juveniles.
4
    In re CR, 250 Mich App at 202.
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court rules simply do not place a burden on a petitioner . . . to file a petition and sustain
the burden of proof at an adjudication with respect to every parent of the children
involved in a protective proceeding before the family court can act in its dispositional
capacity.” 5

        The “one parent doctrine” was used in this case. Mays, the children’s mother, left
them home alone late into the night. Phillips, the children’s father, did not live in the
house or contribute to the neglect. Despite this, the trial court took jurisdiction over the
children and placed both the mother and the father on a treatment plan. However, the
state never determined that Phillips was an unfit parent, identified anything he did wrong,
or stated what failures on his part the treatment plan was intended to fix. Nevertheless,
when Phillips did not fully comply with the plan, the court terminated his parental rights.

       There are many issues in this case. But the elephant in the room is whether the
court should have ever taken jurisdiction over the children and proceeded to termination
without having determined that Phillips was an unfit parent. In re CR is not on point
because it is factually distinguishable. The father in that case voluntarily availed himself
of the court’s jurisdiction. Because the court had jurisdiction over him, In re CR never
addressed the constitutionality of the “one parent doctrine.” 6

      The validity of this doctrine is a jurisprudentially significant issue. In this case
alone Phillips, the National Association of Counsel for Children, the Prosecuting
Attorneys Association of Michigan, the Center for Individual Rights, the Legal Services
Association of Michigan, the Michigan State Planning Body for the Delivery of Legal
Services to the Poor, the American Civil Liberties Union Fund of Michigan, and the
Family Law Section of the State Bar of Michigan have urged us to address it.

      Because the issue of the constitutionality of the “one parent doctrine” is significant
and central to this case, I believe the Court should not conclude the case without
addressing it.

         MARKMAN, J. (dissenting).


5
    Id. at 205.
6
  Troxel v Granville, 530 US 57, 68 (2000), recognized “a presumption that fit parents act
in the best interests of their children.” In Justice Thomas’s concurring opinion, he
explained that he agreed with the plurality that the Court had recognized a fundamental
right of parents to direct the upbringing of their children. See id. at 80 (Thomas, J.,
concurring). Santosky v Kramer, 455 US 745, 752-754 & 754 n 7 (1982), held that the
rights of minor children and parents are protected by the Due Process Clause of the
Fourteenth Amendment.
                                                                                          4

        I respectfully dissent from the orders reversing both the Court of Appeals’ and the
trial court’s decisions to terminate respondents’ parental rights and I would vacate this
Court’s March 23, 2011 orders, 489 Mich 857 (2011), and deny leave to appeal. I am
persuaded that the proceedings here were fair and in accordance with the law, and that the
trial court exercised reasonable judgment in concluding that grounds existed for
termination, and that termination was in the “best interests” of the children.

       Considerable efforts were undertaken to reunify respondents with their children,
although these efforts clearly failed. Respondent Mays failed to successfully complete
and benefit from counseling and parenting classes, and further failed to maintain legal
employment. Respondent Phillips failed to successfully complete and benefit from
counseling and further failed to maintain adequate shelter or legal employment.
Additionally, Phillips testified that he has never expressed any desire for the children to
come live with him and that the children were better off living with their grandmother.
Two review hearings were then held, with Mays choosing not to attend either hearing and
Phillips attending only one. Under these circumstances, I cannot say that the trial court
“clearly erred” by finding that respondents have “fail[ed] to provide proper care or
custody for the child[ren] and there is no reasonable expectation that [they] will be able
to provide proper care and custody within a reasonable time . . . .” MCL 712A.19b(3)(g).

        I also do not believe that the trial court “clearly erred” by concluding that
termination of respondents’ parental rights was in the children’s “best interests” because
“neither parent is prepared to have the children placed in their care and neither is engaged
in preparing themselves to parent the children on a full time basis.” The majority does
not dispute this conclusion, but asserts that the record is “inadequate to make a best
interests determination.” Again, I respectfully disagree. There is no specific formula,
and there are no delimited factors that a court must consider when making a “best
interest” determination. Rather, the trial court “may consider evidence introduced by any
party,” In re Trejo Minors, 462 Mich 341, 353 (2000), and if no “best interest” evidence
is offered, the court may enter a finding “from evidence on the whole record . . . .” The
record here, which included hearings, reports, and testimony, was more than sufficient, in
my opinion, to allow the court to make a thoughtful and reasoned “best interest”
determination. In particular, the majority faults the court for not considering the
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children’s placement with a relative. However, the proposition that a court must always
consider placement with a relative before termination, even after grounds for termination
have been established and “best interest” findings made, lacks grounding in the law,
which contains no specific factors that a court must invariably consider in deciding a
termination case. Rather, what is required is a case-by-case determination in accordance
with the law, and that has occurred. While placement with a relative may in many
instances constitute a relevant consideration in the “best interest” determination, the
failure to consider it in a particular case does not necessarily preclude the court from
determining that termination is in the children’s “best interests.” The primary beneficiary
of the “best interest” determination is the child, Trejo, at 356, and when the child’s best
interests are clearly served by the termination of rights, the fact that they are then living
with a relative does not in every instance undermine that determination.




                         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.
                         January 27, 2012                    _________________________________________
        t0125                                                                Clerk
