17.9Requirements for “Best Interest” Step

“If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child’s best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.” MCL 712A.19b(5). See also MCR 3.977(E)(4), MCR 3.977(F)(1)(c), and MCR 3.977(H)(3)(b), which also require the court to expressly find that termination of parental rights is in the child’s best interests.

“The trial court must order the parent’s parental rights terminated if the Department [of Health and Human Services (DHHS)] has established a statutory ground for termination by clear and convincing evidence and it finds from a preponderance of evidence on the whole record that termination is in the children’s best interests.”¹ In re White, 303 Mich App 701, 713 (2014). See also In re Moss, 301 Mich App 76, 90 (2013) (“whether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence”).

Note: Because “there is not an established standard of proof for the best-interest determination in Michigan,² and Santosky [v Kramer, 455 US 745 (1982),] did not address what standard of proof is constitutionally required at the best-interest stage of termination proceedings[,]”³ the In re Moss Court applied the test developed in Mathews v Eldridge, 424 US 319 (1976), “to determine the requisite standard of proof for the best-interest determination that due process would require[.]”⁴ In re Moss, 301 Mich App at 86.

The Michigan Court of Appeals reviews “for clear error the trial court’s determination regarding the children’s best interests.” In re White, 303 Mich App at 713. In addition, the Michigan Court of Appeals reviews “for clear error whether the trial court failed to address a significant difference between each child’s best interests.” Id. at 716.

A.Legal Standards for Best-Interest Determination

When making a best-interest determination for a child under MCL 712A.19b(5), the court should place its “focus on the child rather than the parent.” In re Schadler, 315 Mich App 406, 411 (2016), citing In re Moss, 301 Mich App 76, 87 (2013). See also In re Medina, 317 Mich App 219, 239 (2016) (“[t]he ‘primary beneficiary’ of the best-interests analysis ‘is intended to be the child’”), quoting In re Trejo, 462 Mich 341, 356 (2000).

“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 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, 303 Mich App 701, 713-714 (2014), quoting In re Olive/Metts, 297 Mich App 35, 41-42 (2012). However, a parent’s parental rights may not be terminated “solely because he or she was a victim of domestic violence.” In re Plump, 294 Mich App 270, 273 (2011).⁵ See also In re Jackisch, 340 Mich App 326, 334 (2022). In Jackisch, the trial court erred by relying “on respondent’s involvement in domestic violence” as a basis for terminating respondent’s parental rights because the record neither established respondent as a perpetrator, nor did it establish respondent as a victim of domestic violence. Id. at 334. However, without regard to whether respondent is a perpetrator or a victim, termination of respondent’s parental rights may be based on “‘the fact that [a] respondent’s own behaviors were directly harming the children or exposing them to harm.’” Id. at 334, quoting Plump, 294 Mich App at 273 (alteration in original).

“‘The court may utilize the [Child Custody F]actors provided in MCL 722.23[]’” when making a best-interest determination for a child under MCL 712A.19b(5). In re Medina, 317 Mich App at 238, quoting In re McCarthy, 497 Mich 1035 (2015).

The court may consider a child’s placement when making a best-interests determination. In re Foster (Tommy), 285 Mich App 630, 635 (2009). Specifically, the Court of Appeals found:

“[O]nce a statutory ground [for termination] is established, a parent’s interest in the care and custody of his or her child yields to the state’s interest in the protection of the child. Thus, while it is inappropriate for a court to consider the advantages of a foster home in deciding whether a statutory ground for termination has been established, such considerations are appropriate in a best-interests determination.” In re Foster, 285 Mich App at 635 (internal citations omitted).

See In re Mays, 490 Mich 997, 997 (2012) (Michigan Supreme Court reversed “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 [under] MCL 712A.19b(5)[] [because] [t]he factual record in th[e] case [was] inadequate to make a best interests determination[] . . . [when] there [was] 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[]”).

The doctrine of anticipatory neglect⁶ may be relevant to a best interest determination. See In re Mota, 334 Mich App 300, 323 (2020).

“Although the trial court may terminate parental rights in lieu of placement with relatives if it finds that termination is in the child’s best interests, the fact that the children are in the care of a relative at the time of the termination hearing is an ‘explicit factor to consider in determining whether termination was in the children’s best interests.’” In re Olive/Metts, 297 Mich App 35, 43 (2012), quoting In re Mason, 486 Mich 142, 164 (2010) (“trial court’s failure to explicitly address whether termination is appropriate in light of the children’s placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal”). See also In re L J Lombard, ___ Mich App ___, ___ (2024) (finding that the trial court abused its discretion when, rather than make individualized findings on whether a guardianship with the child’s maternal grandfather, with whom the child was placed, would be in the child’s best interests, it instead relied on a general policy disfavoring guardianships for children under 10 years old).

The SCAO Memorandum, Child’s Best Interests in Termination of Parental Rights Proceedings (August 22, 2013), p 3, addresses “[t]he child’s placement with a relative [a]s one factor the court must consider,” but also sets out the following additional factors the court should consider when determining whether termination of parental rights is in a child’s best interests:

“•   The opinion of experts including psychologists and therapists, the caseworker, and the lawyer guardian ad litem.

• The likelihood of the child being adopted.

• The child’s age.

• The child’s wishes, if of a sufficient age to express an opinion.

• The child’s relationships with extended relatives.

• Whether the child has special needs.

• Ethnic or cultural considerations.

• The length of time the child has been in foster care.

• The bond that exists between siblings.”

Note: It is important to note that the list set out in the Child’s Best Interests in Termination of Parental Rights Proceedings, supra at p 3, “is not an exhaustive list of considerations, as each child protective proceeding includes facts and circumstances that may trigger other considerations in the best interests analysis.” “[T]he [court] record regarding the best interests analysis should be supported by case-specific facts to illustrate that termination of parental rights is in the child’s best interests, even if that child is placed with a relative.” Id.

B.Best Interests of Each Child Individually

1.Siblings

“[T]he trial court has a duty to decide the best interests of each child individually[, and] [a]lthough ‘in most cases it will be in the best interests of each child to keep brothers and sisters together . . ., if keeping the children together is contrary to the best interests of an individual child, the best interests of that child will control.’” In re Olive/Metts, 297 Mich App 35, 42 (2012), quoting Wiechmann v Wiechmann, 212 Mich App 436, 439 (1995) (even though Wiechmann, 212 Mich App at 439, “[was a] child custody dispute[] in which the children’s best interests were analyzed under the framework of the Child Custody Act, MCL 722.21 et seq., the same principle—that each child be treated as an individual—applies with equal force in termination-of-parental-rights cases under the [J]uvenile [C]ode, [MCL 712A.19b][, and] [i]t is, therefore, incumbent on the trial court to view each child individually when determining whether termination of parental rights is in that child’s best interests”).

The holding in In re Olive/Metts “stands for the proposition that, if the best interests of the individual children significantly differ, the trial court should address those differences when making its determination of the children’s best interests[]” and “does not stand for the proposition that the trial court errs if it fails to explicitly make individual and—in many cases—redundant factual findings concerning each child’s best interests.” In re White, 303 Mich App 701, 715-16 (2014) (“trial court did not clearly err by failing to distinguish the individual best interests of the children” where “the trial court did distinguish between the children when [the children’s individual and different special needs] differed in significant ways,” and “[t]here [was] no indication that the trial court clearly erred by failing to find that the oldest daughter shared a particular, stronger bond with [the respondent-mother] than the younger children”).

2.Generalized Concerns

“[T]he trial court shall make an individualized determination as to whether terminating [a] respondent’s parental rights is in the best interests of [the] respondent’s . . . child without regard to a generalized policy disfavoring guardianship for children under the age of 14.” In re RJK, 501 Mich 867, 867 (2017) (vacating “that part of the judgment of the Court of Appeals addressing the best interests determination[]” and remanding the case to the trial court “for reconsideration of whether terminating [the] respondent’s parental rights is in the best interests of the child”; “[t]he trial court judge failed to articulate whether her generalized concerns regarding the lack of permanency and stability for younger children placed with a guardian are present for this child”). See also In re Affleck, 505 Mich 858, 858-859 (2019), where the Michigan Supreme Court noted that “[p]etitioner did not consider recommending a guardianship for [the minor children] with respondent’s mother because of a purported departmental policy against recommending guardianship for children under the age of 10,” and vacated “that part of the judgment of the Court of Appeals addressing the trial court’s best-interest determinations,” then remanded the case to the trial court to “address whether guardianship is appropriate [for the minor children] as part of its best-interest determinations without regard to a generalized policy disfavoring guardianship for children under the age of 10.” Accord, In re L J Lombard, ___ Mich App ___, ___ (2024).

C.Termination in Child’s Best Interests

Termination of parental rights is in a child’s best interests when the respondent failed to remedy the respondent’s drug addiction despite having been repeatedly offered, over the course of more than two years, opportunities for inpatient and outpatient substance-abuse treatment, during which time the respondent consistently missed drug screens or tested positive for drugs including cocaine, heroin, morphine, and fentanyl. In re MJC, ___ Mich App ___, ___ (2023). At the time of the best-interests hearing, the respondent had been using drugs for 19 years, and although the respondent denied the circumstances of the incident, respondent’s child, at 11 months, had been hospitalized for ingesting drugs the respondent tested positive for two days later. Id. at ___.

In In re Smith-Taylor, 339 Mich App 189, 206 (2021), rev’d on other grounds ___ Mich ___ (2022), the “[r]espondent’s failure to significantly address her mental health, her erratic behavior throughout the proceedings, her continued relationship with the [children’s] father, and her failure to acknowledge the severity of [one child’s] injuries demonstrated that she did not have the ability to properly care for the children and that it was in the best interests of the children to terminate respondent’s parental rights.” Termination was properly ordered because it was supported by a preponderance of the evidence. Id. at 205, n 5. Also significant to the court’s decision was the fact that all three children had been placed with relatives who agreed to adopt the children. Id. at 206-207.

A preponderance of the evidence supported the trial court’s finding that termination of the respondent-mother’s parental rights was in the child’s best interests. In re Sanborn, 337 Mich App 252, 277 (2021). The respondent-mother had received services before parental rights to a previous child were terminated, and issues that had existed with the respondent-mother’s other child had carried over into her care of the instant child. Id. These issues included the respondent-mother’s “lack of insight or knowledge about child development, child care practices, and parenting techniques.” Id. Termination was in the child’s best interests because the respondent-mother remained “unable to successfully feed the child when in-person visits were offered despite repeated exposure to feeding therapy and a private lesson.” Id. at 278. The child’s need for permanency, coupled with how long the child had been in foster care and the potential length of time the child might have to wait for the respondent-mother to rectify continuing conditions, heavily favored termination. Id.

Termination of respondent-father’s parental rights was in his children’s best interests where the respondent abused a child who was not his biological child but was “a child who had looked to respondent for care and protection as a father figure” and who “respondent had been raising . . . for a number of years as if she were his daughter” because it “revealed a side of respondent that posed a serious danger to his minor [biological] children.” In re Mota, 334 Mich App 300, 322-323 (2020). Under those circumstances, “the trial court did not clearly err by finding that termination of respondent’s parental rights [to his biological children] was in the best interests of the children.” Id. at 323.

Termination of respondents’ parental rights was in the children’s best interests because respondents’ neglect had transformed the parent-child bond “into something that has traumatized the children.” In re Pederson, 331 Mich App 445, 477 (2020). “[T]he parent-child bond is a blade that is capable of cutting both ways; whether it benefits or harms a child depends on how the parent wields it. In this case, respondents’ neglect over the course of years turned the parent-child bond into something emotionally harmful, and further contact with respondents will likely only prevent the children’s psychological wounds from healing.” Id. (respondents’ argument that focused on the parent-child bond to the exclusion of all else was “myopic”). Considering that the children flourished in foster care, the length of the proceedings, the children’s ages and special needs, and the respondents’ “long track record of evictions, unpaid debts, mental illness, criminality and neglect,” termination was in the children’s best interests. Id. at 478.

Termination of the respondent-mother’s parental rights was supported by a preponderance of the evidence that the termination was in the minor child’s best interests where the minor child “came into care because he displayed symptoms and characteristics of [fetal alcohol syndrome] at birth” and the respondent reported suffering from alcoholism, “admitted to drinking six beers a day during her pregnancy,” and stated on multiple occasions “that she wanted to voluntarily terminate her parental rights[.]” In re Rippy, 330 Mich App 350, 361 (2019) (“[a] parent’s substance abuse history is . . . relevant to whether termination is in the child’s best interests”).⁷ Additionally, the best interest determination was supported where the minor child was “medically fragile and [had] extensive medical issues that [would] require lifelong care, and it [was] unclear whether respondent would be able to care for him in light of her failure to address her . . . untreated alcoholism and mental health issues.” Id. at 361-362.

Termination of the respondent-mother’s parental rights was supported by a preponderance of the evidence that the termination was in the children’s best interests where “testimony of the family therapist showed that the bond between respondent and the minor children was broken”; “[t]he minor children refused to visit with respondent, and the record established that the minor children were flourishing in their placement with other relatives, who were willing to adopt”; and “the record was replete with accusations of serious physical abuse by respondent.” In re Keillor, 325 Mich App 80, 94 (2018) (Riordan, J.); id. at 95-96 (Ronayne Krause, P.J., concurring).

Termination of the respondent-mother’s parental rights was supported by a preponderance of the evidence that the termination was in the child’s best interests where “[a]t the time of the termination hearing, the child had been in foster care for approximately 2-1/2 years”; “respondent had made little, if any, progress in addressing the main reasons that the court took jurisdiction over the child”; “respondent’s therapist opined that it was highly unlikely that respondent would ever be emotionally or psychologically stable enough to provide a safe environment for the child”; “the child was doing well in foster care and her foster parents were willing to adopt her”; “the caseworker testified that the child was fully adjusted to her foster home and had bonded with her foster siblings”; “the caseworker also stated that termination would provide the child with the permanency she needed, especially considering that respondent would not be able to improve her deficient parenting skills within a reasonable period of time”; and “the caseworker had explored alternatives to termination, such as guardianship, but no one else had come forward and the foster parents were not interested in that option.” In re Kaczkowski, 325 Mich App 69, 78-79 (2018).

Termination of the respondent-father’s parental rights was supported by a preponderance of the evidence that the termination was in the child’s best interests where the respondent-father was “a registered sex offender who pleaded guilty to CSC-I for forcibly raping and sodomizing his nine-year-old cousin”; “he [was] allegedly a member of . . . [a] street gang . . .”; “he also continue[d] to associate with, and live with, others who [had] a substantial criminal record, including domestic violence convictions”; “[e]ven during his infrequent visits with [the child] when the child was an infant, respondent’s conduct betrayed his indifference toward the child”; “[m]oreover, respondent had little or no contact with [the child] for nearly two and a half years—over half the child’s life—immediately preceding termination[, and b]ecause of such lack of interaction, [the child] ha[d] not developed a bond with respondent but [was] instead closely bonded to [the child’s] stepfather . . . who [sought] to adopt [the child].” In re Medina, 317 Mich App 219, 239-240 (2016).

Termination of the respondent-mother’s parental rights was supported by a preponderance of the evidence that the termination was in the children’s best interests where “[t]hough respondent shared a bond with the children, that bond was outweighed by the children’s need for safety, permanency, and stability”; the “respondent never obtained suitable housing during the course of the proceedings, nor could she meet her own economic or financial needs, let alone the needs of the children”; “these issues were longstanding and numerous services had been provided to no avail[, and t]here was no indication that [the] respondent would be able to rectify the problems in such time that the children could be returned to her in the foreseeable future”; “there were also serious concerns with respondent’s history of bringing inappropriate individuals—including men with histories of criminal sexual conduct—around her children”; the “respondent failed to address this issue in counseling and minimized the matter throughout the proceedings”; and “finally, even though the minor children were not in preadoptive placements, any further delay in providing them permanency by allowing respondent additional time to improve her situation was not in children’s best interests.” In re Jones, 316 Mich App 110, 120-121 (2016).

Termination of the respondent-father’s parental rights was supported by a preponderance of the evidence that the termination was in the child’s best interests where the respondent-father sexually abused the child, the “respondent’s behavior demonstrated that he was not committed to meeting [the child’s] needs, which required providing a safe and secure environment in which to grow up[, and] . . . [although] there was some evidence of a bond between [the child] and respondent, . . . the abuse [the child suffered at the hands of the respondent-father] was ‘heinous and resulted in physical injury, as well as emotional injury[,’ and] . . . [the child] could not ‘thrive and prosper and recover from the trauma she . . . sustained at the hands of her father if his parental rights remain[ed] intact’”; “there was [also] evidence that respondent imposed excessive physical discipline, and [the child] reported that there was a lot of fighting between her mother and respondent, which frightened her.” In re Schadler, 315 Mich App 406, 411 (2016).

Termination of the respondent-father’s parental rights was supported by a preponderance of the evidence that the termination was in the child’s best interests where the child’s therapist testified to the child being diagnosed with post-traumatic stress disorder (PTSD) as a result of trauma the child suffered from “violence and inappropriate parenting by his stepmother and respondent, [the child] indicated to the therapist that he did not want to be alone with respondent, who administered discipline with a belt and left marks[, and] . . . [although the child] loved respondent, . . . [he also] greatly feared his father[, he] . . . witnessed physical violence between his stepmother and respondent, and . . . [the child] had ‘access to pornography, which contributed to his sexual curiosity with his sister’”; “the therapist opined that termination was in [the child’s] best interests[, a]nd, the trial court found that the bond between respondent and [the child] was damaged and that respondent failed to provide a safe and loving environment.” Schadler, 315 Mich App at 412.

Termination of the respondent-mother’s parental rights was supported by a preponderance of the evidence that the termination was in the children’s best interests where “[t]here was evidence that respondent had violently attacked an elderly women, had not successfully addressed her substance abuse and mental health issues, . . . was not motivated to make the necessary changes to address those issues. Respondent also continued to have contact with the children’s abuser, even going so far as to indicate her desire to start a family with him[, and t]he children’s relatives were willing to adopt them, and both children were excelling in their new environment.” In re Gonzales/Martinez, 310 Mich App 426, 435 (2015).

Termination of the respondent-mother’s parental rights was supported by a preponderance of the evidence that the termination was in the children’s best interests where the respondent “lacked the ability to keep her children safe or effectively parent them,” despite the fact that the children were placed with relatives, the respondent did not miss any supervised visits, and the respondent and children were bonded. In re Brown/Kindle/Muhammad, 305 Mich App 623, 638 (2014). Specifically, the respondent repeatedly sent the minor children to a location where they were sexually abused because the children “begged” her to send them there. Id. Moreover, “the children’s need for permanency, stability, and finality, militated against placing the minor children in respondent’s care” because she “frequently changed housing, lived illegally in a series of abandoned houses without utilities or appliances, and left the minor children in the care of others.” Id.

Termination of the respondent-mother’s parental rights was supported by a preponderance of the evidence based on “the child’s need for permanency and stability” where “[a]lthough there was evidence that respondent[-]mother had appropriate parenting skills, . . . [before the termination hearing,] respondent[-]mother was sentenced to . . . imprisonment for her participation in a bank robbery, . . . [and] the child was thriving in foster care and had developed a very strong attachment to the foster mother.”⁸ In re Johnson, 305 Mich App 328, 335-336 (2014).

Termination of the respondent-mother’s parental rights was supported by a preponderance of the evidence that the termination was in the children’s best interests where although “the trial court found that the children [and the respondent-mother] shared a bond,” the court “strongly weighed the children’s need for safety and stability” and found that the respondent-mother “had a history of failing to comply with her case service plan by inviting strange men into her home, . . . that the children were doing very well in foster care, . . . that there was a possibility that the children would be adopted[, a]nd . . . that the children strongly needed permanence and stability.” In re White, 303 Mich App 701, 714 (2014).

Termination of the respondent-father’s parental rights was supported by a preponderance of the evidence that the termination was in the children’s best interests where “[the] respondent-father had very minimal involvement in [his] children’s lives[, h]e did not provide support for [his] children, . . . he had little or no contact with [his children] for several years[, and t]here was . . . no evidence that he was able to provide suitable housing for [his] children [when he failed to] comply with the required [court-ordered] home assessment [of the suitability of his home on two occasions, despite ample notification of the visits].” In re Laster, 303 Mich App 485, 496 (2013).

Termination of the respondent-mother’s parental rights was supported by a preponderance of the evidence that the termination was in the children’s best interests where “the [court] record show[ed] that respondent acted on her thoughts of harming her youngest daughter by attempting to suffocate her numerous times, . . . that she brought her children with her while purchasing drugs, that her son had seen her using crack cocaine before, . . . that she did not have stable housing[, and] . . . given her history, [the respondent-mother’s] ultimate success regarding her substance abuse and mental health treatments [were] uncertain at best.” In re Moss, 301 Mich App 76, 90 (2013).

Termination of the respondent-parents’ parental rights were in the children’s best interests where “[even though the] respondent[-parents] did make some progress in addressing their [alcohol and substance abuse], the evidence showed that it was unlikely that the child could be returned to [the child’s] parents’ home within the foreseeable future, if at all[, and] [t]he child required a permanent, safe, and stable home, which neither respondent was capable of providing.” In re Frey, 297 Mich App 242, 248-249 (2012).

Termination of the respondent-parent’s parental rights to three of her five children^[9] was in the children’s best interests where the evidence showed that “[the] respondent[-mother] struggled to cope with five children, was unable to control her temper to the detriment of the children, lacked a source of income, had lost her home, and was in jail”; “[r]espondent failed to derive any lasting benefit from services previously provided and there were no additional services that could be provided.” In re Olive/Metts, 297 Mich App 35, 43 (2012).

Termination of the respondent-parents’ parental rights were in the children’s best interests where there was “[c]ompelling evidence indicat[ing] that the children would not be safe in respondent[-parents’] custody considering that both children suffered unexplained injuries consistent with serious abuse while in respondents’ primary care,” the children were young, “the ongoing uncertainty about the circumstances surrounding the serious abuse of the children while in respondents’ care weighed heavily against additional reunification efforts[, and] [t]he children had been placed in a stable home where they were thriving and progressing and that could provide them continued stability and permanency given the foster parents’ desire to adopt them.” In re Vandalen, 293 Mich App 120, 141 (2011).

Despite evidence showing that the mother took positive steps to address her anger and emotional control issues, the trial court did not clearly err when it concluded that termination of her parental rights was in the child’s best interests where a psychological evaluation revealed that the issues were unresolved, the mother did not show appropriate parenting techniques during parenting time, she continued to place herself in abusive situations, and she had yet to establish a parent-child relationship with her child. In re Jones, 286 Mich App 126, 129-130 (2009).

D.In-Camera Interviews

The court does not have the authority to hold in camera interviews with a child when making best interests findings in child protective proceedings. In re HRC, 286 Mich App 444, 452-453 (2009). Specifically, the Court of Appeals found:

“[N]othing in the [J]uvenile [C]ode, the case[]law, the court rules, or otherwise permits a trial court presiding over a termination of parental rights case to conduct in camera interviews of the children for purposes of determining their best interests. Accordingly, [the Court of Appeals] hold[s] that a trial court presiding over a juvenile proceeding has no authority to conduct in camera interviews of the children involved.” In re HRC, 286 Mich App at 454.