The Michigan Supreme Court has vacated part of the Michigan Court of Appeals ruling in In re JMG/JGG/JMG, Minors, remanding the termination of parental rights case and ordering the trial court to “make an individualized best-interests determination as to each child.”

The Supreme Court issued its order instead of granting leave to appeal in In re JMG/JGG/JMG, Minors (Docket No. 167535) and, as such, handed down several rulings.

First, the justices cited MCL 712A.19b(3)(b)(ii) and found the Genesee County trial court did not indicate whether there was clear and convincing evidence of a “reasonable likelihood” that two of the respondent-mother’s children, JMG-2 and JGG, would “suffer injury or abuse in the foreseeable future if placed in the parent’s home.” Therefore, on remand, “the trial court shall make an individualized determination and articulation as to whether such reasonable likelihood of injury or abuse exists specifically as to JMG-2 and JGG.” Next, the high court cited MCL 712A.19b(5) and said that, if the trial court found by clear and convincing evidence there was a “reasonable likelihood” that JMG-2 and JGG would suffer injury or abuse in the foreseeable future if returned to the respondent-mother’s home, “the trial court shall then reconsider whether terminating respondent-mother’s parental rights is in the best interests of JMG-2 and JGG.”

Further, the trial court “shall” reconsider whether terminating the respondent-mother’s parental rights is in the best interests of JMG-1, the Supreme Court stated. “In conducting these analyses, the trial court shall make an individualized best-interests determination as to each child, In re Olive/Metts, Minors, 297 Mich App 35, 42 (2012), while recognizing that relative placement weighs in the respondent-mother’s favor, In re Mason, 486 Mich 142, 164 (2010).”

According to the Supreme Court, “Conducting a best-interests analysis in the context of termination is not the same as deciding whether one parent should receive full custody or deciding a dispute over parenting time. Rather, the best-interests analysis in the termination context must consider whether retaining the parent-child relationship, in some form, is in each child’s best interests. The trial court shall receive additional evidence from the parties and hold such hearings as are necessary to make these determinations.”

Chief Justice Elizabeth T. Clement wrote a partial concurrence and dissent, saying that she believed “a middle ground is warranted in this case.” The chief justice explained that she wrote separately “to elaborate on my reasoning regarding the best-interests issue and to question the Court of Appeals’ current approach to determining when individualized best-interests determinations are required in cases involving multiple children.”

According to the chief justice, “I hope that the Court of Appeals – or this Court – will someday reconsider [the] holding [in In re White, 303 Mich App 701 (2014)] regarding individualized best-interests determinations in termination proceedings involving multiple children. Families across this state deserve our closer scrutiny on that score.”

Justice Brian K. Zahra dissented. “The trial court did not clearly err by finding statutory grounds for termination of respondent-mother’s parental rights to the three minor children involved in this appeal or by finding that termination was in the children’s best interests. … [A]lthough the trial court did not articulate its best-interests analysis as thoroughly as it could have, respondent-mother identifies no clear error in the analysis. … [I]t is not error if a trial court fails to explicitly make individual best-interests findings when, as here, the children’s individual best interests do not significantly differ.”

Background

The Genesee County Circuit Court took jurisdiction over the respondent’s children, JMG-1, JGG and JMG-2 under MCL 712A.2(b)(1) and (2). The trial court subsequently found that the Department of Health and Human Services (DHHS) provided clear and convincing evidence to justify terminating the respondent-mother’s parental rights under MCL 712A.19b(3)(b)(ii).

The trial court found the children’s stepfather, CH, had sexually abused JMG-1 and the respondent-mother was aware but failed to take proper measures to protect JMG. The trial court also deemed the respondent-mother’s claim of being unaware of any concerns as “unbelievable” and took judicial notice that CH – not the respondent-mother – had filed for divorce, contrary to her testimony. Therefore, the trial court ruled that the respondent-mother had the opportunity to prevent the JMG-1’s sexual abuse and failed to do so. The trial court also held there was a reasonable likelihood that the child would suffer abuse if returned to the respondent-mother’s home and concluded it was in the best interests of all the children to terminate the respondent-mother’s parental rights. The trial court determined that although the respondent-mother had a strong bond with her children, there was a “critical need for stability and permanency in their lives,” which their father could provide. The trial court also observed that the children’s father offered the children suitable housing and a structured environment, and they were “thriving” under his care.

The respondent-mother appealed the trial court’s decision. Among other things, she argued the trial court erroneously found that termination of her parental rights was in the children’s best interests. She alleged the trial court did not consider the bond between her and the children, “grouped all three children together” when analyzing the best-interest factors and did not consider that the children were in a relative placement with their father.

The Court of Appeals affirmed the trial court’s decision in a July 2024 unpublished opinion (Docket No. 368147). “The record contradicts the arguments made respondent-mother,” the appeals court said. “Contrary to the assertions of the respondent-mother on appeal, the trial court did review whether termination was suitable given the minor children’s placement with their father. … After its review, the trial court found termination to be appropriate. The trial court was correct in finding that, despite a strong bond between the respondent-mother and her children, other factors were more important. The evidence indicated that the children were closely bonded with their father, who had a steady job and a strong support system from his family. He made sure that the children received appropriate medical care, something that was allegedly lacking while under the care of respondent-mother. Additionally, the children were receiving therapy and, in contrast to their time in their mother’s custody, were excelling in school while under their father’s care. Witnesses testified that it was in the best interests of the children to be with their father, as he could provide them with stability and permanency, which the respondent-mother could not. Accordingly, on this record, we discern no errors in the proceedings.”

The respondent-mother appealed the decision.

MSC Chief Justice Concurrence/Dissent

Chief Justice Clement, in her partial concurrence and dissent, said she agreed the trial court did not clearly err by finding statutory grounds for terminating the respondent-mother’s parental rights. The chief justice further said she agreed with the majority “insofar as they conclude that a remand is appropriate so the trial court can reconsider whether terminating respondent-mother’s parental rights is in the best interests of JMG-2 and JGG, the two children who had not been abused.”

In writing separately, Justice Clement detailed her concerns about the best-interests analysis, specifically questioning the current Court of Appeals’ approach for determining when, in cases involving more than one child, individualized best-interests determinations are required.

“At the outset, if at least one statutory ground for termination of parental rights exists, the trial court must then determine whether ‘termination of parental rights is in the child’s best interests …,” the justice wrote, citing MCL 712A.19b(5). “Courts consider a variety of nonexhaustive factors when making this determination. Some of these factors include ‘the child’s bond to the parent, the parent’s parenting ability, the child’s need for permanency, stability, and finality, and the advantages of a foster home over the parent’s home.’ … Other factors examine ‘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 any event, trial courts must ‘weigh all the evidence available to determine the children’s best interests,’ … and ‘decide the best interests of each child individually ….’”

The chief justice continued, “With these principles in mind, I share the majority’s concerns about how the trial court conducted its best-interests analysis as to JMG-2 and JGG. Despite the statutory command that a trial court determine whether ‘termination of parental rights is in the child’s best interests,’ MCL 712A.19b(5), the trial court seemed to treat its best-interests inquiry as an all-or-nothing custody contest, focusing primarily on how the father provides structure, a good home, care, and so on. Although these facts are relevant, it does not necessarily follow that permanently terminating respondent-mother’s parental rights as to JMG-2 and JGG is the best course of action. Indeed, there remains an undisputed bond between these young children and respondent-mother, and the children bonded with respondent-mother during their formative years. So a proper best-interests determination under the present facts must be more nuanced and consider whether some kind of a parent-child relationship is in JMG-2 and JGG’s best interests. For these reasons, I concur with the majority in remanding the best-interests issue as to JMG-2 and JGG to the trial court for reconsideration.”

Moreover, Chief Justice Clement “question[ed]” the Court of Appeals approach for deciding when individualized best-interests analyses are required in termination proceedings involving multiple children. “Although Olive/Metts rightly requires trial courts to ‘decide the best interests of each child individually,’ … the Court of Appeals in White watered down this requirement by effectively holding that individualized best-interests inquiries are required only when ‘the best interests of the individual children significantly differ ….’ White reached this conclusion by observing that the needs of the children in Olive/Metts significantly differed, such that Olive/Metts’ otherwise broad holding actually meant that individualized best-interests findings are not always required.”

However, “White and its progeny rest on shaky ground,” Chief Justice Clement wrote. “To borrow a basic principle from the law of logic, just because X led to Y does not necessarily mean that Y is limited to X. And here, Olive/Metts did not cabin its holding to cases involving similar facts. Rather, Olive/Metts stated that ‘the trial court has a duty to decide the best interests of each child individually,’ that it is ‘incumbent on the trial court to view each child individually when determining whether termination of parental rights is in that child’s best interests,’ and that ‘the same principle – that each child be treated as an individual – applies with equal force in termination-of-parental-rights cases under the juvenile code.’ … These clear statements of law are unqualified and unambiguous. As a result, I am concerned that the factual underpinnings of Olive/Metts have been used to artificially limit its broad and sensible holding.”

Meanwhile, “[t]ogether with its questionable application of Olive/Metts, White’s holding seems out of step with the plain text of MCL 712A.19b(5),” the chief justice observed. “That provision does not permit a trial court to lump together several children when analyzing whether termination of parental rights is in their best interests. Instead, MCL 712A.19b(5) requires a trial court to consider whether ‘termination of parental rights is in the child’s best interests[.]’ And ‘the’ is a definite article that typically refers to something specific – here, each specific child. … So the plain text of MCL 712A.19b(5) casts further doubt on White’s modification of Olive-Metts’ individualize-the-inquiry principle.”

Chief Justice Clement continued, “I believe that Olive/Metts meant what it said. In a termination proceeding involving multiple children, a trial court must decide the best interests of each child individually, even if circumstances between the children do not significantly differ. I fear that White’s added gloss too often excuses abdication of this responsibility, leading to shallow, one-size-fits-all determinations. This fear is heightened considering that one possible outcome of termination proceedings is total and permanent revocation of parental rights – or, as Nevada’s high court more colorfully put it, the ‘imposition of a civil death penalty.’ In re Parental Rights as to AJG & ACW, 122 Nev 1418, 1423 (2006) ….”

The chief justice concluded by “respectfully” dissenting from the majority’s ruling that the trial court clearly erred in finding statutory grounds for terminating the respondent-mother’s parental rights as to the three children and finding that termination was not in the best interests of the abused child (JMG-1). Otherwise, she concurred with the majority that remand was appropriate for the trial court to reconsider whether terminating the respondent-mother’s parental rights was in the best interests of the children who were not abused (JMG-2 and JGG).

In conclusion, Chief Justice Clement expressed her wish for the Court of Appeals or Michigan Supreme Court to someday “reconsider” the holding in White, as it pertains to individualized best-interests determinations in termination proceedings involving multiple children.