                            STATE OF MICHIGAN

                              COURT OF APPEALS



                                                                      UNPUBLISHED
In re CANNON, Minors.                                                 July 25, 2017


                                                                      Nos. 336413; 336414
                                                                      Kent Circuit Court
                                                                      Family Division
                                                                      LC Nos. 14-052762-NA;
                                                                               14-052763-NA



Before: SAWYER, P.J., and HOEKSTRA and BECKERING, JJ.

PER CURIAM.

        In this consolidated case, respondent-father and respondent-mother appeal separately as
of right the trial court’s order terminating their parental rights to the minor children under MCL
712A.19b(3)(c)(i) (conditions of adjudication continue to exist) and MCL 712A.19b(3)(g)
(failure to provide proper care and custody). We affirm.

                     I. RELEVANT FACTS AND PROCEDURAL HISTORY

        Mother is the biological parent and father is the legal parent of the two minor children. 1
At the time of the children’s removal, father was homeless and living in downtown Grand
Rapids, Michigan, and mother was in an abusive relationship with another man. The Department
of Health and Human Services (DHHS) filed a petition for removal of the children from
mother’s house after becoming aware that police had responded to mother’s home multiple times
for incidents of domestic violence while the children were home.

        At the October 2014 adjudication hearing, Kayla Coombs, a foster-care worker from
Catholic Charities of West Michigan assigned to the case for both children, testified that father’s
barriers to reunification with the children were substance abuse, stable housing, employment,
parenting skills, and emotional stability. She testified that mother’s barriers to reunification were
substance abuse, emotional stability, domestic violence issues, parenting skills, and stable
housing. Coombs also testified that the children were placed together in a licensed foster home.


1
    Father signed an affidavit of parentage during the course of these proceedings.


                                                  -1-
        The record indicates that father and mother made little progress early on. Father resolved
his homelessness by moving in with his new girlfriend, Anita Hernandez, who lived in housing
deemed appropriate for the children. Hernandez became involved in father’s treatment plan, but
her participation remained sporadic at best. Father continued to test positive for THC, the main
ingredient in marijuana and, although he received multiple referrals for substance abuse and
anger management counseling, he attended few, if any, and in the opinion of one of his
caseworkers2 father did not seem to benefit from the sessions he did attend. Father completed a
parenting class, but was discharged from another because of lack of attendance.

        Similarly, mother was referred to multiple counseling programs for her substance abuse,
domestic violence issues, and parenting skills, but missed a number of appointments. She
completed one parenting class but was discharged from another due to nonattendance. She also
tested positive for marijuana use on a few occasions. Early in 2015, police arrested mother for
creating a disturbance at a bus stop, where she was arguing and fighting with people. When
police arrived, she was holding a beer can in her hand and appeared “highly intoxicated.” Police
arrested mother after she failed their sobriety tests, and she spent two days in jail. According to
her caseworker, domestic violence continued to be mother’s most serious barrier to reunification.
The caseworker told the court that during the reporting period from January 2015 to March 2015,
mother had “run-ins” with her abusive ex-boyfriend multiple times. One such incident resulted
in an episode of domestic violence that left mother with a black eye. Mother was “pretty
intoxicated” during this incident. In addition, mother was discharged from the YWCA domestic
violence counseling program due to nonattendance.

        As 2015 wore on, both parents appeared to make progress toward removal of their
respective barriers to reunification with their children and eventually were allowed unsupervised
parenting time. At the June review hearing mother’s caseworker testified that, although
domestic violence continued to be a problem,3 mother was “very active” in her treatment plan
and was doing “very well” overall. At the September review hearing, the caseworker reported
that mother was making progress on her treatment plan, that she had completed all of the
parenting classes to which the agency had referred her, demonstrated emotional stability,
obtained stable housing, and had all negative drug screens during that period. Additionally,
when mother’s abusive ex-boyfriend showed up at mother’s apartment, she called the police and
had him served with the PPO. With regard to father, the caseworker reported that he was
appropriate with the children during supervised parenting time and that he had tested negative for
drugs during the reporting period. Nevertheless, he was still having angry outbursts, including
outbursts toward the foster-care worker, the children’s attorney, and the foster parents. Despite
the parents’ progress, the caseworker recommended changing the goal for both parents from


2
  Three foster-care workers were involved in this case: Coombs, Brooke Lindley, and Marie
Burns. Because Coombs was promoted to supervisor and supervised the workers assigned to the
children at issue in this case, she could provide a measure of continuity and familiarity. For this
reason, she was the agency representative who testified at the termination hearing.
3
  Mother obtained a personal protection order (PPO) against her abusive ex-boyfriend, but
refused to have him served with it.


                                                -2-
reunification to termination of parental rights and adoption because it had been over a year since
the children’s removal and they needed permanency.              Nevertheless, the caseworker’s
recommendation changed when the parents continued to show progress during the next 90-day
review period. At the December 2015 permanency planning hearing, the caseworker stated that
the parents had made “good progress” overall on their treatment plan, and recommended that the
goal be changed back to reunification.

        Things slowly unraveled for the parents in 2016. In January 2016, police arrested father
for choking mother, and in April, he pled guilty to assault by strangulation and received a
sentence of 23 months’ imprisonment.4 Father’s earliest release date from prison is February 27,
2018, and his maximum release date is March 29, 2026. The caseworker told the court that, after
father went to prison, Hernandez stopped participating in the treatment plan, despite the
caseworker asking her to continue. Mother, on the other hand, continued to progress and the
caseworker told the court that mother had resolved the problems that had brought the children
into foster care. At the May 2016 review hearing, the caseworker opined that termination of
mother’s parental rights was not in the best interests of the children because the children had a
strong bond to mother and mother had rectified all of her barriers.

        Two incidents changed the caseworker’s opinion. In June 2016, mother, the children,
mother’s new boyfriend, and mother’s sister were camping. Mother’s sister stole mother’s car
and left mother and the rest of the party stranded at the campsite. The children’s foster parents
had to pick everybody up from the campsite. The caseworker was concerned that mother’s sister
was at the campsite because mother had a PPO against her sister. After the incident, the
caseworker discussed with mother that it was not appropriate for her to have the children around
people against whom she had a PPO.

        In July 2016, mother was involved in a motor vehicle accident in which she collided with
another vehicle in downtown Grand Rapids, Michigan. Mother had both children in the vehicle
with her, as well as her sister and her abusive ex-boyfriend. There was damage to both vehicles.
Mother lied to the children and told them that she spoke to the police and that it was okay for her
to leave the scene. She then drove the car, with the other occupants, to a friend’s house where
she removed the license plate from her vehicle. Mother did not report the incident to her
caseworker or the police. The next day, mother was driving her vehicle and the police pulled her
over because they suspected her in the hit and run accident from the night before. Mother
appeared intoxicated. Police officers performed a preliminary breath test, which revealed that
mother had a blood alcohol content of 0.16%. Mother also failed the sobriety tests that police
officers gave her. Mother was arrested. At the time, mother’s children were at her apartment
with her sister. The caseworker testified that she considered mother’s sister a risk to the
children, even though she never “harmed” them, because of the risk mother’s sister posed to
mother and because of mother’s PPO against her sister.




4
 While father was out of jail awaiting sentencing, he tested positive for drug use in April, after
having tested negative for nearly a year.


                                                -3-
        Subsequently, the caseworker recommended that the goal change again from
reunification to termination of both parents’ rights and adoption of the children. She opined that
termination of both parents’ rights at this point was in the best interests of the children because
more than two years had passed since the children’s removal from mother’s custody, and the
children needed permanency. Accordingly, petitioner filed a supplemental petition seeking
termination of both parents’ rights to the children pursuant to MCL 712A.19b(3)(c)(i) and (3)(g).

        The trial court held a two-day termination hearing in December 2016. Coombs, now a
foster-care supervisor, testified that the children had been in foster care for a little over two
years. She testified that father’s barriers remained domestic violence, emotional stability,
substance abuse, and parenting skills. Coombs opined that father had not rectified the barriers
that brought the case about and that it would be at least six to nine months after his earliest
release from prison before the children could be returned to his care. Regarding mother, Coombs
stated that the children were removed from mother’s custody due to concerns of domestic
violence, substance abuse, emotional stability, housing, and parenting skills. Coombs stated that
mother did not rectify the barriers of domestic violence, substance abuse, parenting skills, or
emotional stability. However, mother did rectify the barrier of housing.

        Regarding the children’s best interests, Coombs testified that the children had been in a
licensed foster home together since their removal in August 2014. Coombs stated that father and
Hernandez married two days before the hearing, but the agency was not considering Hernandez
as a relative for placement because there had not been enough time to evaluate her in the two
days prior to commencement of the termination hearing. Another reason why the agency was
not considering placement of the children with Hernandez was her “very inconsistent”
participation with father’s treatment plan. Coombs also noted that, even though there was a bond
between father and the children, that bond had “thinned out” over the course of the case.

        Mother also testified at the termination hearing, stating that she did not believe that she
had issues with domestic violence or with men in general. She also testified that her sister was a
“very safe person” for her and her children to be around, that she did not believe her sister was a
bad influence on her or the children, and that she still saw her sister. Mother did not believe that
she needed parenting classes, and she admitted to the continued use of marijuana.

        Ruling from the bench at the conclusion of the hearing, the trial court found that the
conditions that led to adjudication remained unresolved. Mother continued to be involved in
domestic violence and to abuse drugs. She failed to visit her children on a regular basis, was
intoxicated in their presence, and left them with inappropriate caregivers. Similarly,
notwithstanding a period of apparent sobriety, father continued to abuse substances and failed to
engage profitably in counseling for substance abuse, anger management, and domestic violence.
Father was incarcerated at least until February 2018, possibly longer. Considering that Coombs
estimated it would take six to nine months of engagement in a parent-agency treatment plan after
father’s release before reunification with his children is a possibility, that would mean two more
years of foster care for children who have already waited a long time for permanence.
Accordingly, the trial court found that clear and convincing evidence established grounds for
termination of the parents’ parental rights pursuant to MCL 712A.19b(3)(c)(i).



                                                -4-
        With regard to MCL 712A.19b(3)(g), the trial court found that father relied on
Hernandez’s housing, but had failed to move toward being able to provide proper care and
custody for the children otherwise, and that mother had proven that she cannot “provide a safe,
stable, non-neglectful home environment.” Accordingly, the court found clear and convincing
evidence that the parents had failed to provide proper care or custody for the children and that it
was unlikely they would be able to do so within a reasonable time, given the children’s ages.
The court rejected father’s suggestion to place the children with Hernandez on the ground of her
noncompliance with the treatment plan, opining that the mere fact of father’s marriage to
Hernandez did not automatically qualify her as an appropriate relative placement.

        During its best-interest analysis, the court discussed at length the parents’ histories,
unfavorable psychological evaluations, the children’s ages, parenting techniques, domestic
violence, strength of the bond between the children and the parents, visitation history, parents’
involvement in questionable relationships, compliance with the treatment plans, the children’s
wellbeing, the possibility of adoption, and the children’s need for permanence. The trial court
found that there was a preponderance of the evidence to support terminating parental rights of
both parents to the children. The court issued a corresponding order, from which mother and
father now appeal.

                                          II. ANALYSIS

        In order to terminate parental rights, the trial court must find that at least one of the
statutory grounds for termination has been met by clear and convincing evidence. MCL
712A.19b(3); In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). Then, the trial
court must find by a preponderance of the evidence that termination is in the best interests of the
children. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). This Court reviews the trial
court’s determinations for clear error. In re VanDalen, 293 Mich App at 139. “A finding is
‘clearly erroneous’ if, although there is evidence to support it, we are left with a definite and firm
conviction that a mistake has been made.” In re HRC, 286 Mich App 444, 459; 781 NW2d 105
(2009). The interpretation and application of statutes and court rules are reviewed de novo. In
re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014). We give deference to the “trial court’s
special opportunity to judge the credibility of the witness.” In re HRC, 286 Mich App at 459.

                      A. STATUTORY GROUNDS FOR TERMINATION

        Father contends that the trial court erred in finding grounds to terminate his parental
rights pursuant to MCL 712A.19b(3)(c)(i). We disagree.

        A court may terminate a parent’s rights under MCL 712A.19b(3)(c)(i) if 182 or more
days have passed since issuance of an initial dispositional order and the court finds by clear and
convincing evidence that “[t]he 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 given
considering the child’s age.” Father does not dispute that termination occurred more than 182
days after issuance of the initial dispositional order in this case. Rather, he contends that the
only condition that led to adjudication was his homelessness, which he resolved when he moved
in with Hernandez.


                                                 -5-
         Father’s assertion that housing was his only barrier to reunification is incorrect. Coombs
testified at the adjudication hearing that, in addition to housing, father’s barriers to reunification
with his children were substance abuse, emotional stability, and parenting skills. Her testimony
at the termination hearing indicated that these other barriers remained. Concerning substance
abuse, Coombs testified that, although father experienced a period of negative drug tests, he
tested positive again for marijuana in April 2016. With regard to emotional stability, she
testified that father demonstrated a lack of emotional stability throughout the case, on one
occasion becoming irate and yelling at foster-care worker Lindley, the children’s attorney, and
the foster parents. Moreover, at the time of the hearing, father was serving a prison sentence for
assault by strangulation for choking mother. Finally, Coombs testified that, although petitioner
referred father to multiple parenting classes throughout this case, and he did complete one class,
he was discharged from other parenting skills classes due to nonattendance. Thus, although the
record shows that father experienced periods of improvement, even progressing to unsupervised
visits in December 2015, it also shows that his barriers—other than perhaps housing—remained
essentially the same from the start of the case until termination. The conditions that led to
father’s adjudication continue to exist, and there was no reasonable likelihood that father would
rectify them within a reasonable time, considering the children’s ages. Accordingly, we are not
left with “a definite and firm conviction that a mistake has been made,” In re HRC, 286 Mich
App at 459, with regard to the trial court’s finding that MCL 712A.19b(3)(c)(i) provides
statutory grounds to terminate father’s parental rights.

        Father also contends that the trial court erred in finding clear and convincing evidence to
terminate his parental rights pursuant to MCL 712A.19b(3)(g).5 Mother joins father in this issue.
Mother does not argue that the trial court erred in finding that she failed to provide proper care
and custody for the children and that she would not be able to provide such care and custody
within a reasonable time, given the children’s ages. Rather, she argues in concert with father that
termination was inappropriate because father’s wife could have provided proper care and custody
of the children at the time of the termination hearing. Mother “extrapolates from” the Michigan
Supreme Court’s statement in In re Mason, 486 Mich 142, 163; 782 NW2d 747 (2010), that “a
child’s placement with relatives weighs against termination under MCL 712A.19b(6)(a), [6]” to
contend that “if one parent provides an appropriate relative placement for their mutual children,
there are no grounds for termination of the second parent’s rights.”

        Under MCL 712A.19b(3)(g), termination is proper when “[t]he parent, without regard to
intent, fails to provide proper care and custody for the child and there is no reasonable
expectation that the parent will be able to” within a reasonable time. However, a parent may


5
  Having determined that the trial court did not clearly err in finding clear and convincing
evidence of statutory grounds to terminate father’s parental rights pursuant to MCL
712A.19b(3)(c)(i), we need not address termination pursuant to MCL 712A.19b(3)(g). MCL
712A.19b(3); In re Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d 144 (2012). However,
we will address father’s argument because it is the basis for mother’s sole challenge to the trial
court’s termination of her parental rights.
6
    This provision is currently numbered MCL 712A.19b(8)(a).


                                                 -6-
provide proper care and custody for the children by voluntarily placing them with an appropriate
relative during their incarceration. In re Mason, 486 Mich 143, 163, 165; 782 NW2d 747
(2010). Mason provides that “a child’s placement with relatives weighs against termination
under MCL 712A.19b(6)(a) [now, § 19b(8)(a)], which expressly establishes that, although
grounds allowing the initiation of termination proceedings are present, initiation of termination
proceedings is not required when the children are ‘being cared for by relatives.’ ” Id. at 164.
Where the court decides to order the initiation of termination proceedings, children’s placement
with relatives is “an explicit factor to consider in determining whether termination [is] in the
children’s best interests[.]” Id. The definition of “relative” for purposes of placement includes
“stepparent.” MCL 712A.13a(j).7

        Respondent parents base their argument regarding termination pursuant to MCL
712A.19b(3)(g) on the erroneous assumption that mere placement of the children with a relative
is sufficient to forestall or halt termination proceedings. Although the placement of children
with a relative allows the court some discretion in ordering initiation of termination proceedings
when the children have been in foster care for 15 of the last 22 months, it does not prohibit the
court from proceeding with termination anyway. MCL 712A.19b(8)(a). Further, prior relative
placement does not factor into the trial court’s determination of whether clear and convincing
evidence establishes a statutory ground for termination, but is one of several factors the court
weighs when determining whether termination of parental rights is in a child’s best interests.
Mason, 486 Mich at 164. In addition, contrary to father and mother’s assumption, the trial court
is not obligated to place children with a relative; “the trial court may terminate parental rights in
lieu of placement with relatives if it finds termination is in the child’s best interests.” In re
Olive/Metts Minors, 297 Mich App 35, 43; 823 NW2d 144 (2012).

        The children in the instant case had been placed with an unrelated foster-care family for
more than two years when the trial court authorized petitioner to file a supplemental petition
requesting termination. Since father had not placed the children with a relative prior to the
termination hearing, the court was not obligated to factor relative placement into its best-interest
analysis. Nevertheless, the court specifically addressed the possibility of placing the children
with Hernandez, concluding that the facts of this case did not indicate that Hernandez would be
an appropriate relative placement for the children. The record supports the trial court’s decision.
Hernandez was sporadic with her participation in the treatment plan and with visits, and she
stopped participating in the treatment plan altogether after father’s incarceration, even though the
foster care workers invited and encouraged her to continue participating. Apart from evidence
indicating that she had appropriate housing, no record evidence indicated that Hernandez was in


7
  During the termination hearing, Coombs read into the record an older version of the statute that
did not include stepparents as relatives for purposes of placement, and father relies on the same
version in his brief to this Court. However, 2015 PA 228 added stepparents to the definition of
“relatives,” effective December 17, 2015, and was in effect when father married Hernandez on
December 5, 2016, two days before the termination hearing. Further, it is clear from the record
that the trial court did not reject father’s argument on the ground that Hernandez was not a
relative, but because nothing indicated she was an appropriate placement for the children.


                                                -7-
a position in terms of skills, finances, health, or disposition to provide proper care and custody
for the children while father was incarcerated for at least another year. Further, for the reasons
discussed below, the trial court found that termination of the parents’ rights was in the best
interests of the children. At “trial court may terminate parental rights in lieu of placement with
relatives if it finds termination is in the child’s best interests.” Olive/Metts Minors, 297 Mich
App at 43. Accordingly, we cannot say that the trial court clearly erred by finding clear and
convincing evidence to terminate both parents’ rights pursuant to MCL 712A.19b(3)(g). Only
one ground for termination is required. MCL 712A.19b(3);

                          B. BEST INTERESTS OF THE CHILDREN

        “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). In determining the children’s best interests, the trial court may
consider the children’s bond to their parents; the parents’ parenting ability; the children’s need
for permanency, stability, and finality; and the advantages of a foster home over the parent’s
home. Olive/Metts, 297 Mich App at 41-42. The trial court may also consider the children’s
potential for adoption. “[A] child’s placement with relatives weighs against termination[.]” Id.
at 43 (quotation marks and citation omitted). “[T]he 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[.]” Id. (quotation marks and citation
omitted). “A 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.” Id. (citation omitted).

        Father and mother contend that termination of their parental rights was not in the best
interests of the children. Specifically, they argue that the trial court erred in determining that the
children’s well-being in foster care supported termination because the foster family fraudulently
used a bridge card belonging to mother’s sister, was under investigation for their care of another
foster child in their home, and allowed mother unauthorized visits with the children.

        Coombs testified at the November 2, 2016 permanency planning hearing that the agency
investigated allegations that the foster parents had used a bridge card belonging to mother’s sister
and determined the allegations to be true. The information was turned over to the attorney
general. However, the attorney general merely required the foster parents to pay the money back
to the State and did not file criminal charges against them. The agency also spoke with the foster
parents and mother regarding the unapproved visitation. Coombs testified that she, the CASA,8
and the parents’ caseworker at the time all felt that there were no concerns regarding the health,



8
  Court Appointed Special Advocates are trained volunteers appointed by the court to speak up
for the best interests of abused, neglected, or abandoned children. According to their website,
CASA volunteers “advocate for safety, permanence and well-being for children through
independent recommendations.” See http://www.michigancasa.org/ (accessed June 19, 2017).


                                                 -8-
safety, and welfare of the children due to the incidents. The trial court’s ruling reveals that the
trial court was aware of these allegations and factored them into its best-interest analysis.

         In addition, the trial court considered the parent-child bond, the parents’ parenting ability;
the children’s need for permanency, stability, and finality; and the children’s wellbeing in foster
care and the possibility of adoption. The court found the parents to have engaged the children
appropriately during supervised parenting visits, but noted that mother tended to make poor
decisions about whom to allow around the children during unsupervised visits. Although the
parent-child bond was initially strong for both parents, the court heard evidence that it weakened
significantly during the last year due to father’s incarceration and mother’s missing parenting-
time visits and putting the children in unsafe situations. The court noted that the parents
continued to engage in domestic violence and questionable, and in mother’s case potentially
hazardous, relationships. Regarding the children’s need for permanence, the court noted that
they had “waited a long time.” The trial court addressed the advantages of the foster home and
the potential for adoption. At almost every hearing, a foster-care worker testified regarding the
children’s wellbeing while in foster care, stating that the children were doing great in foster care,
were excelling in school, were up-to-date with their medical appointments, and were progressing
in their development.

        On this record, and mindful of our deference to the “trial court’s special opportunity to
judge the credibility of the witness,” In re HRC, 286 Mich App at 459, we cannot say that the
trial court clearly erred in weighing the evidence and concluding that termination of the parental
rights of father and mother was in the children’s best interests. The trial court properly
considered and analyzed the best interest factors, as well as other record evidence, before
reaching a conclusion that is supported by a preponderance of the evidence. Therefore, we are
not “left with a definite and firm conviction that a mistake has been made.” In re HRC, 286
Mich App at 459. Accordingly, we affirm the trial court’s order terminating the parental rights
of father and mother.

       Affirmed.



                                                               /s/ David H. Sawyer
                                                               /s/ Joel P. Hoekstra
                                                               /s/ Jane M. Beckering




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