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In re Kaczkowski

Court of Appeals of Michigan

June 28, 2018

In re C. M. R. KACZKOWSKI, Minor.

          Macomb Circuit Court Family Division LC No. 2015-000099-NA

          Before: Murphy, P.J., and Jansen and Ronayne Krause, JJ.

          PER CURIAM.

         Respondent-mother appeals as of right the trial court's order terminating her parental rights to minor child pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). Respondent's husband and the child's legal father voluntarily released his parental rights. He is not a party to this appeal and he is allegedly not the child's biological father. We affirm.

         This case arises in part out of the murder of another child of respondent's. This previous child was murdered by respondent's husband, prior to the birth of the child in this case. Respondent's husband is incarcerated for murdering the previous child. The initial petition recited respondent's prior history with Child Protective Services (CPS), including the death of another child at the hands of respondent's husband, and the fact that respondent had never filed for divorce from her husband despite that he was convicted of murdering respondent's other child. The petition also alleged that respondent was currently in a relationship with JK, alleged to be the instant child's biological father, despite that he was prohibited from having contact with minors due to a prior conviction in Oklahoma for child molestation. The petition also included allegations concerning respondent's poor housing conditions and her mental instability.

         Following a hearing, the child was removed from respondent's care and placed in foster care. Respondent was allowed supervised visitation. The treatment plan for respondent had many requirements for her to continue to be a parent to her child, including a parenting program, random drug screens, a complete psychological evaluation and to participate in mental health services. She completed the psychological evaluation, the parenting program, had negative drug screens, began full-time employment and began unsupervised visitations with her child.

         Shortly thereafter, a petition to suspend respondent's visitation and to terminate respondent's parental rights was filed by the GAL alleging that respondent was having continued contact with JK and at times this contact occurred when the child present. At the time respondent and JK met and throughout at least the initial period of the instant matter, JK was on probation for committing the offense of lewd molestation[1] against a family member in Oklahoma; respondent denied knowing the truth about the specific crime for which JK was on probation but did know that he was on probation.

         We are concerned that we cannot find any order in the record explicitly directing respondent to refrain from contact specifically with JK by name, and we are deeply concerned that JK's violation of orders imposed upon him may have been held against respondent. However, the evidence shows that respondent was aware that she was not supposed to have contact with him nor allow him around her child. The relevant factual dispute is whether she actually did. Respondent had sufficient income, suitable housing, a lawful lifestyle, and conducted herself properly with the child. The other concerns were that respondent was lacking in self-control and emotional stability, she had an alleged history of being in the presence of unsafe individuals, and she had not benefitted from counselling despite mostly participating in services offered.

         "In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich.App. 120, 139; 809 N.W.2d 412 (2011). We review for clear error a trial court's ruling that a statutory ground for termination has been proved by clear and convincing evidence. In re Hudson, 294 Mich.App. 261, 264; 817 N.W.2d 115 (2011). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." Id.

         The trial court found that grounds for terminating respondent's parental rights were established under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), which authorize termination of parental rights under the following circumstances:

(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that ...

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