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FAMILY LAW 68: The court held that the satisfaction of the statute relating to the termination of parental rights does not necessarily provide clear and convincing evidence in a parenting time dispute that a child will be harmed by reintroduction to

In a separate case, defendant’s parents filed a petition to terminate plaintiff’s parental rights and adopt RM on the ground that plaintiff had been absent from RM’s life for over three years. One month before the petition was scheduled for adjudication, plaintiff filed this case seeking legal and physical custody of RM and parenting time.  Plaintiff testified that he was now willing and able to visit and financially support RM, and that he wholly agreed with a supervised parenting-time schedule to prevent his reintroduction from being “a shock” to RM. The referee expressed concern about plaintiff’s extended absence from RM’s life but found that defendant failed to establish by clear and convincing evidence that parenting time would harm RM. The referee opined that defendant’s argument regarding MCL 712A.19b(3) (termination of parental rights) was inapposite because the petition to terminate plaintiff’s parental rights was not before the court in this case. Defendant filed an objection to the referee’s recommendations, and the trial court held a de novo hearing. The trial court determined that the fact that MCL 712A.19b(3) might be satisfied was irrelevant to the parenting-time issue before it because the court in the termination case had specifically declined to make any findings before this case was resolved. The trial court noted that under MCL 722.27a(3), RM had a right to parenting time with plaintiff unless clear and convincing evidence established that it would endanger her physical, mental, or emotional health. The trial court found that defendant failed to establish by clear and convincing evidence that plaintiff presented a risk of harm to RM. Defendant now appeals.

STANDARD OF REVIEW

Orders concerning parenting time must be affirmed on appeal unless the trial court’s findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue.   

ANALYSIS

Defendant argues that the trial court made findings against the great weight of the evidence and palpably abused its discretion in granting plaintiff parenting time because 1) the Legislature has specified in MCL 712A.19b(3)(a)(ii) that a parent’s desertion of a child for just 91 days causes harm sufficient to justify terminating the parent’s parental rights, and plaintiff deserted RM for more than four years, and 2) the trial court should have relied on the opinions of defendant and her parents that being reintroduced to plaintiff would mentally and emotionally harm RM. We disagree. Defendant has not provided to either the trial court or this Court any authority that satisfaction of MCL 712A.19b(3)(a)(ii) related to the termination of parental rights necessarily provides clear and convincing evidence in a parenting-time dispute that a child will be harmed by reintroduction to the parent. Therefore, the trial court properly concluded that MCL 712A.19b(3)(a)(ii) has no bearing on this custody and parenting-time case, which is governed by the Child Custody Act of 1970, MCL 722.21 et seq. The trial court did not make findings against the great weight of the evidence or palpably abuse its discretion when it determined that neither plaintiff’s abandonment of RM, in itself, nor defendant’s and her parents’ unsupported opinions sufficed to establish by clear and convincing evidence that RM having parenting time with plaintiff as required under MCL 722.27a(3), would endanger RM’s physical, mental, or emotional health. The child’s best interests govern a court’s decision regarding parenting time.  It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents. Therefore, parenting time shall be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship . . . .  MCL 722.27a(3) provides that “A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child’s physical, mental, or emotional health.” The referee, in making her recommendations, and the trial court, in adopting them after de novo review, acknowledged that plaintiff had been an absentee parent and that, even if he was not legally required to do so, he should have contacted defendant’s parents to arrange parenting time with RM. However, the referee and the trial court rejected defendant’s argument regarding the impact of plaintiff’s abandonment of RM because, under MCL 722.27a(3), plaintiff’s absence from RM’s life for years did not, in itself, establish by clear and convincing evidence that RM would be harmed by reintroduction to plaintiff. The trial court correctly concluded that the potential that plaintiff would abandon RM again did not constitute clear and convincing evidence currently in existence, such that the trial court could conclude that RM will be harmed by parenting time with plaintiff. Therefore, the trial court’s findings were not against the great weight of the evidence, and it did not palpably abuse its discretion by granting parenting time to plaintiff.

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