                           STATE OF MICHIGAN

                            COURT OF APPEALS


                                                                     UNPUBLISHED
In re M. WILCZYNSKI, Minor.                                          August 23, 2018

                                                                     No. 340718
                                                                     Livingston Circuit Court
                                                                     Family Division
                                                                     LC No. 2015-015160-NA


Before: MURPHY, P.J., and GLEICHER and LETICA, JJ.

PER CURIAM.

         Respondent appeals by right the trial court’s order terminating his parental rights to the
minor child pursuant to MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to
exist), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood child will be
harmed if returned to parent’s home). We affirm.

        According to the removal petition, respondent assaulted the child’s mother, with whom
he was living, in the early hours of November 25, 2015. Respondent did not want the child to
sleep in the couple’s bed, so the mother went to sleep with the child on the couch. This upset
respondent, who had been drinking. The mother woke up to respondent “hitting her in the face
repeatedly” while the child was in her arms. Respondent then held a gun to the mother’s head
and stated, “I didn’t want to do this.” The mother ran out of the home and later returned with her
parents to retrieve the child. They observed “gun casings” on the floor and holes in the walls.
The mother sought treatment at a hospital. On December 7, 2015, criminal charges were brought
against respondent arising out of the assault.

        In January 2016, respondent pleaded guilty to domestic violence and felony discharge of
a firearm in a building. He remained incarcerated in jail until he was released on probation in
August 2016. In March 2016, respondent pleaded no contest in the child protective proceedings
to an amended petition. The case service plan required respondent to complete psychological
and substance abuse evaluations and follow the corresponding recommendations, participate in
random drugs screens, obtain employment and housing, complete parenting classes, participate
in parenting visits, and to complete a “DAIP” (Domestic Assailant Intervention Program) course.

       When he was released from jail in August 2016, respondent completed the psychological
evaluation and the substance abuse assessment. In both evaluations, respondent denied that he
had committed domestic violence against the mother. The psychologist was concerned with
respondent’s defensiveness and his concept of parenting. The psychologist recommended

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counseling and parenting classes for respondent. The social worker performing the substance
abuse assessment found that respondent “may have minimized his alcohol use.” She
recommended that respondent participate in outpatient treatment and in weekly support groups.

        As of the December 2016 review hearing, respondent had made little progress in
complying with and benefitting from the case service plan. While respondent’s drug and alcohol
screens were negative, he was consistently tardy for his weekly two-hour supervised parenting
visits. He was participating in a domestic violence group, but he continued to deny the need for
treatment and requested that he be excused from the group because he had purportedly never
committed an abusive act. The hearing referee admonished respondent for blaming others and
not taking responsibility for his actions.

        As of the March 2017 permanency planning hearing, respondent had begun participating
in a different DAIP program. He had not started parenting classes or counseling and was not
interested in doing so. Respondent continued to arrive late for most of his parenting visits and
missed one visit completely “due to his alarm not waking him up.” Based on the referee’s
recommendation, petitioner filed a supplemental petition requesting termination of respondent’s
parental rights.

        The four-day termination hearing began in June 2017. Respondent’s behavior on the
night leading to these proceedings was an area of focus. Initially, respondent denied that the
domestic violence incident occurred. Later, respondent testified that he wanted to take
responsibility for the allegations to which he had pleaded guilty and no contest in the respective
proceedings. However, respondent maintained that he did not remember what occurred that
night because he was sleeping. Ultimately, respondent stated, “I truly don’t believe that it
happened.”

        Respondent’s compliance with the case service plan and his benefit from services were
also explored at the termination hearing. Respondent believed that he was benefitting from his
current domestic violence program. But the latest progress report indicated that respondent often
made comments “oppositional to the goal of making safe and respectful choices”; respondent
explained that he likes to “play devil’s advocate.” Respondent continued to deny any abusive
behavior. Respondent’s girlfriend testified that the two had been together for nearly a year and
that there were no instances of domestic violence.

         Respondent denied through most of the termination hearing that he had a substance abuse
problem. On the third day of the hearing, he admitted that there had been a substance abuse
problem with alcohol in the past, but he believed that the issue was resolved. Respondent also
admitted that he did not tell the substance abuse evaluator about the time he was arrested in
March 2015 for disorderly conduct while intoxicated. Respondent had started receiving
counseling at Catholic Charities in April 2017. He agreed that he initially did not want to attend
counseling but found that he was benefitting from it. When asked if he had spoken to his
counselor about assaulting the mother, respondent answered, “I talked to her about the
allegations, correct.” Respondent asserted that he took parenting classes while incarcerated in
jail. Two of respondent’s family members and his girlfriend testified positively regarding his
parenting skills. The caseworker testified to the parenting issues that arose during respondent’s
visitations. Respondent had obtained employment and appropriate housing, and his drug and

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alcohol screens were negative. The hearing concluded in early August 2017. In late September
2017, the hearing referee issued her findings of fact and recommended termination of
respondent’s parental rights. The trial court adopted the referee’s recommendations.

        On appeal, respondent argues that the trial court clearly erred in finding that the statutory
grounds for termination were proven by clear and convincing evidence and that the court also
clearly erred in finding that termination was in the child’s best interests. We disagree.

        If a trial court finds that a single statutory ground for termination has been established by
clear and convincing evidence and that it has been proved by a preponderance of the evidence
that termination of parental rights is in the best interests of a child, the court is mandated to
terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5); In re Beck, 488
Mich 6, 10-11; 793 NW2d 562 (2010); In re Moss, 301 Mich App 76, 90; 836 NW2d 182
(2013); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). “This Court reviews for clear
error the trial court's ruling that a statutory ground for termination has been established and its
ruling that termination is in the children's best interests.” In re Hudson, 294 Mich App 261, 264;
817 NW2d 115 (2011); see also MCR 3.977(K). “A finding . . . is clearly erroneous if the
reviewing court has a definite and firm conviction that a mistake has been committed[.]” In re
BZ, 264 Mich App 286, 296; 690 NW2d 505 (2004). In applying the clear error standard in
parental termination cases, “regard is to be given to the special opportunity of the trial court to
judge the credibility of the witnesses who appeared before it.” In re Miller, 433 Mich 331, 337;
445 NW2d 161 (1989). The trial court must “state on the record or in writing its findings of fact
and conclusions of law[,] [and] [b]rief, definite, and pertinent findings and conclusions on
contested matters are sufficient.” MCR 3.977(I)(1).

         The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(c)(i), (g),
and (j), which at the time of the termination hearing provided as follows:1

               (3) The court may terminate a parent’s parental rights to a child if the
       court finds, by clear and convincing evidence, 1 or more of the following:

                                              * * *

               (c) The parent was a respondent in a proceeding brought under this
       chapter, 182 or more days have elapsed since the issuance of an initial
       dispositional order, and the court, by clear and convincing evidence, finds either
       of the following:

              (i) The 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 considering the child’s age.



1
 MCL 712A.19b(3)(g) has since been substantively amended. 2018 PA 58, effective June 12,
2018.


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                                               * * *

               (g) The parent, without regard to intent, fails to provide proper care or
       custody for the child and there is no reasonable expectation that the parent will be
       able to provide proper care and custody within a reasonable time considering the
       child’s age.

                                               * * *

               (j) There is a reasonable likelihood, based on the conduct or capacity of
       the child’s parent, that the child will be harmed if he or she is returned to the
       home of the parent.

       “Generally, when a child is removed from the parent’s custody, the petitioner is required
to make reasonable efforts to rectify the conditions that caused the child’s removal by adopting a
service plan.” In re HRC, 286 Mich App 444, 462; 781 NW2d 105 (2009). “Not only must
respondent cooperate and participate in the services, [he] must benefit from them.” In re TK,
306 Mich App 698, 711; 859 NW2d 208 (2014).

        With respect to MCL 712A.19b(3)(c)(i), respondent argues that the domestic violence
condition no longer existed because his current girlfriend testified that they had been in a
relationship for a year without respondent demonstrating violent behavior. We disagree with
respondent that this evidence was dispositive. The domestic violence incident leading to this
case was obviously very serious, and it could not be rectified simply by not committing an act of
domestic violence in a new relationship. Rather, respondent needed to acknowledge his problem
and address it by meaningfully engaging in services. He did neither. Although he pleaded no
contest to the removal petition and pleaded guilty to the related criminal charges, he consistently
denied committing domestic violence against the mother. Respondent’s denials of ever engaging
in abusive activity left him unable to benefit from the domestic violence services in which he
participated. In re Gazella, 264 Mich App 668, 676; 692 NW2d 708 (2005) (explaining that
merely attending services “is not enough”; the parent must also benefit from services). Indeed,
respondent’s failure to benefit from services was established by his progress reports from the
domestic violence programs, as well as his testimony at the termination hearing. Tellingly, when
asked why domestic violence would not be in his life moving forward, respondent answered, “I
mean there’s no one in my life that would cause something like that. I mean that would—it
would never get abrasive like that.” In other words, respondent believed that the mother was the
cause of him punching the mother in the face and putting a gun to her head. The trial court did
not clearly err in finding that respondent failed to rectify his domestic violence issue when
respondent made no effort to address the underlying causes of his behavior. Given respondent’s
consistent refusal to address this condition, the trial court did not clearly err in finding that it was
unlikely respondent could rectify the condition in a reasonable time.

       Respondent also contends that he rectified his substance abuse issue because his drug and
alcohol screens tested negative. Although respondent should be commended for achieving a
period of sobriety, the referee did not clearly err in finding that respondent failed to rectify this
condition. Respondent consistently denied that he had a drinking problem that needed to be
addressed. But he later admitted that he used to have a drinking problem and that he had not

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been completely honest with the psychologist and substance abuse evaluator regarding his
alcohol use. Respondent’s failure to participate in the services recommended in the substance
abuse assessment cast significant doubt on his ability to maintain sobriety once he completes
probation and is no longer at risk of incarceration for drinking. Outpatient therapy was
recommended so that respondent could identify the underlying cause of his excessive drinking.
The support groups were recommended so that respondent would have a peer support group to
help him maintain sobriety. Respondent declined to follow the recommendations, despite
agreeing to do so.

        In sum, there was ample evidence that respondent failed to acknowledge and address the
conditions leading to adjudication through services. Accordingly, we are simply not left with a
definite and firm conviction that the trial court erred in finding clear and convincing evidence to
terminate respondent’s parental rights under MCL 712A.19b(3)(c)(i).

        Additionally, given the evidence that respondent struck the mother in the face while she
held the child, pointed a gun at the mother’s head, threatening her, and fired the gun in the home
with the child present, all while intoxicated, and considering that he failed to benefit from the
case service plan, not honestly acknowledging his drinking problem and the domestic violence
incident, we cannot conclude that the trial court clearly erred in finding that MCL
712A.19b(3)(g) and (j) were proven by clear and convincing evidence.

        Respondent next argues that the trial court clearly erred in finding that termination was in
the child’s best interests. We disagree. With respect to a child’s best interests, we place
our focus on the child rather than the parent. In re Moss, 301 Mich App at 87. In assessing a
child’s best interests, a trial court may consider such factors as a “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.” In re Olive/Metts Minors, 297 Mich App
35, 41-42; 823 NW2d 144 (2012) (citations omitted). “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, 714; 846 NW2d 61 (2014).

        In arguing that termination was not in the child’s best interests, respondent focuses on the
parental bond with the child. It was undisputed that respondent had a strong parental bond with
the child before these proceedings began. But the trial court found that the bond had weakened,
and there was substantial evidence supporting that finding. Respondent himself acknowledged
the deterioration of the bond, testifying at the termination hearing that he and the child “used to
be extremely close.” Moreover, respondent did not have visitation with the child while he was
incarcerated from January to early August 2016. From there on, he received a weekly supervised
parenting visit for two hours; he was routinely late. A court order was also entered to preclude
respondent from using electronic devices during the visits.

        Along those lines, the trial court also found that respondent’s lack of parenting skills
supported a finding that termination was in the child’s best interests. While respondent’s family
members and girlfriend testified positively regarding his parenting skills, the caseworker testified
to issues that arose during the parenting visits. For instance, respondent did not bring diapers to
one of the visits. Respondent was also heard asking the child leading questions regarding

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possible bruises and marks on the child. Finally, the court found that respondent was incapable
of providing the child with permanency and stability. The trial court determined that
respondent’s failure to address the underlying causes of the domestic violence incident placed
the child at risk of harm. Further, there were numerous examples of respondent’s behavior
during the proceedings that evinced instability. Giving due regard to the court’s opportunity to
observe respondent, we cannot conclude that the court clearly erred in finding that termination
was in the child’s best interests.

       Affirmed.


                                                           /s/ William B. Murphy
                                                           /s/ Elizabeth L. Gleicher
                                                           /s/ Anica Letica




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