Issues: Termination of parental rights pursuant to § 19b(3)(j);
Harmless error; Claim the trial court's finding of a statutory
ground for termination was based on legally inadmissible evidence;
MCR 3.977(E)(3); Effect of the trial court's inability to identify
the perpetrator of child's physical abuse; Child's best interests;
Ineffective assistance of counsel

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Aguirre

e-Journal Number: 25588

Judge(s): Per Curiam – O'Connell, Bandstra, and Donofrio



While the trial court erred to the extent it relied on subsections
(b)(i), (k)(iii), and (k)(v) since it stated it was unable to
determine who physically abused the child, the error was harmless
because subsection (j) was sufficiently established, regardless of
whether the respondent-father directly caused the child's injuries.
The trial court did not clearly err in finding, based on
respondent's conduct or capacity, there was a reasonable likelihood
the child would be exposed to a physically abusive environment if
returned to him. Further, the evidence did not demonstrate
termination of respondent's parental rights was clearly not in the
child's best interests. Affirmed.



Full Text Opinion
http://www.michbar.org/e-journal/122704.html#4


This summary also appears under Native American Law



Issues: Termination of parental rights pursuant to §§ 19b(3)(c)(i)
and (g); Whether the petitioner-FIA's burden under the Indian Child
Welfare Act (ICWA) was satisfied; 25 USC §§ 1912(d) and (f)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Berkel

e-Journal Number: 25584

Judge(s): Per Curiam – Hoekstra, Griffin, and Borrello



The trial court did not clearly err in finding the evidence was
sufficient to terminate the respondent-father's parental rights
under subsection (g), the respondent-mother's parental rights under
both subsections (g) and (c)(i), and the FIA satisfied its burden to
support termination under the ICWA. Even if subsection (c)(i) was
inapplicable to the father, he was unable to provide proper care and
custody because he was incarcerated, he had a severe alcohol problem
and an extensive criminal record, and had committed an assault on a
family member and his third OUIL while the case was pending. The
mother lived in more than a dozen places while the case was pending,
was usually unemployed, failed to regularly visit the child, and did
almost nothing on her parent-agency agreement until after the
termination petition was filed. In addition, testimony of Native
American expert witnesses also proved beyond a reasonable doubt
serious emotional or physical harm would result if the child were
returned to either respondent's custody. Affirmed.



Full Text Opinion
http://www.michbar.org/e-journal/122704.html#4


Issues: Termination of parental rights pursuant to §§ 19b(3)(c)(i),
(g), and (j); Determination of a reasonable time for purposes of §
19b(3)(c)(i); Children's best interests



Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Shemwell

e-Journal Number: 25581

Judge(s): Per Curiam – Kelly, Gage, and Zahra



The trial court did not clearly err in finding §§ 19b(3)(c)(i), (g),
and (j) were established by clear and convincing evidence and in
terminating the respondent-mother's parental rights. The main
conditions leading to adjudication were respondent's ongoing
substance abuse and failure to provide stable or suitable housing.
While the evidence revealed at the time of the termination trial
respondent had maintained suitable and stable housing, the testimony
demonstrated she had not rectified her substance abuse even though
she had complied with many aspects of her treatment plan. A witness
testified respondent had smoked crack cocaine and drunk alcohol with
him shortly after the children were returned to her care, and his
testimony was corroborated by police testimony. The court found no
error in the trial court's determination one year was not a
reasonable time for the children to wait for respondent to deal with
her substance abuse problem, and further held termination was also
appropriate under §§ 19b(3)(g) and (j). Affirmed.



Full Text Opinion
http://www.michbar.org/e-journal/122704.html#4


Issues: Termination of parental rights pursuant to § 19b(3)(g);
Claim the trial court improperly denied respondent-father parenting
time with the child while respondent was in prison during the
proceedings; Interpretation of the statute; In re Newman; In re CR;
Harmless error; Child's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Smith

e-Journal Number: 25582

Judge(s): Per Curiam – O'Connell, Bandstra, and Donofrio



While the respondent-father was correct the trial court erred in
interpreting § 19b(3)(g) to require findings based on the
circumstances existing when the petition was filed rather than at
the time of the termination hearing, the error was harmless. The
court held the correct interpretation requires the trial court to
address the circumstances existing at trial when it orders
termination. However, clear and convincing evidence showed
respondent was also unable to provide proper care and custody at the
time of trial. Further, the trial court found, using the far range
of respondent's own opinion as to how long it would take him to
provide proper care and custody, it would be about a year and a half
from the time the petition was filed before he could do so. The
court concluded this was effectively no different from using
respondent's own estimate and saying it would be approximately a
year from the time of the trial, and agreed with the trial court it
was not a reasonable amount of time in light of the child's need for
permanence and stability. Termination of respondent's parental
rights was affirmed.



Full Text Opinion

http://www.michbar.org/e-journal/122704.html#4