            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                   UNPUBLISHED
In re C. LIEFFERS, Minor.                                          July 25, 2019

                                                                   No. 346658
                                                                   Newaygo Circuit Court
                                                                   Family Division
                                                                   LC No. 17-008989-NA


Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ.

PER CURIAM.

       Respondent-father appeals as of right the trial court order terminating his parental rights
to the minor child under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to exist).
We affirm.

        The Department of Health and Human Services (DHHS) received a complaint from a
hospital in late July 2017 indicating concerns about the minor child. The minor child was born
with opioids and methadone in his system. The mother also tested positive for drugs and was
homeless. Respondent, the father, was incarcerated in Newaygo County Jail because he violated
his probation in a domestic violence altercation. Respondent was also awaiting trial on a number
of other felony matters and, according to several sources, was abusing a number of drugs.
Because respondent was incarcerated and the mother was homeless, the trial court granted
temporary custody of the minor child to the maternal grandmother.

        The DHHS created a reunification plan for respondent that was intended to help him
regain custody of the minor child. However, over the course of the next 14 to 15 months,
respondent did not participate in recommended services and failed to write to the minor child
during his incarceration. Although one of his convictions was reversed, respondent was also
recharged on new felonies, including first-degree home invasion as a habitual offender. In
September 2018, the DHHS petitioned the trial court to terminate respondent’s parental rights
under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to exist) because respondent
failed to remedy his incarceration, substance abuse, domestic violence, and criminality.

       Respondent argues that there was insufficient evidence presented to terminate his
parental rights. “In order to terminate parental rights, the trial court must find by clear and
convincing evidence that at least one of the statutory grounds for termination in MCL
712A.19b(3) has been met.” In re Vanderlin, 293 Mich App 120, 139; 809 NW2d 412 (2011).
                                               -1-
We review for clear error a trial court’s factual determination that statutory grounds exist for
termination. Id.; MCR 3.977(K). “A finding of fact is clearly erroneous if the reviewing court
has a definite and firm conviction that a mistake has been committed, giving due regard to the
trial court’s special opportunity to observe the witnesses.” In re BZ, 264 Mich App 286, 296-
297; 690 NW2d 505 (2004). In addition, we give “deference to the trial court’s special
opportunity to judge the credibility of the witnesses.” In re HRC, 286 Mich App 444, 459; 781
NW2d 105 (2009).

        We conclude that the trial court did not clearly err in finding that the conditions which led
to adjudication continued to exist under MCL 712A.19b(3)(c)(i).

         Under MCL 712A.19b(3)(c)(i) a court may terminate a parent’s parental rights if it finds,
by clear and convincing evidence, that “182 or more days have elapsed since the issuance of an
initial dispositional order,” and “[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
considering the child’s age.”1 We have held that termination of parental rights was proper
pursuant to MCL 712A.19b(3)(c)(i) when “the totality of the evidence amply support[ed] that
[the respondent] had not accomplished any meaningful change in the conditions” that led to
adjudication. In re Williams, 286 Mich App 253, 272; 779 NW2d 286 (2009). We have also
specifically recognized that a respondent’s ongoing incarceration may be a condition under MCL
712A.19b(3)(c)(i) sufficient to uphold termination. In re McIntyre, 192 Mich App 47, 51; 480
NW2d 293 (1991).

        Respondent argues that the trial court’s adjudication focused solely on respondent’s
continued incarceration in violation of In re Mason, 486 Mich 142, 164-165; 782 NW2d 747
(2010). In Mason, our Supreme Court held that incarceration and criminal history alone are not
grounds for termination of parental rights. Id. This Court has subsequently expanded Mason to
a respondent’s reincarceration, holding that being convicted and incarcerated a second time is
insufficient to terminate parental rights under MCL 712A.19b(3)(c)(i). See In re Pops, 315 Mich
App 590, 599; 890 NW2d 902 (2016). Therefore, if the sole reason for adjudication was
respondent’s incarceration (whether ongoing or at the beginning of adjudication), there was
insufficient evidence supporting the statutory ground of termination.

       However, although a “present inability to care for one’s minor children due to
incarceration alone is not a ground for termination, incarceration was not the sole reason for
termination in this case.” In re Hudson, 294 Mich App 261, 267; 817 NW2d 115 (2011)
(considering imprisonment and surrounding circumstances under MCL 712A.19b(3)(h) in light
of Mason). Respondent failed to develop a bond with the minor child despite having received
the opportunity to develop one with the assistance of the DHHS.



1
  Respondent does not contest that “182 days or more have elapsed since the issuance of an
initial dispositional order.” MCL 712A.19b(3)(c). The initial dispositional order was entered on
October 4, 2017. Therefore, 182 days or more elapsed between the entry of the dispositional
order and the termination decision.

                                                 -2-
        Although it is true that the trial court’s final ruling discussed respondent’s incarceration,
we consider child protective proceedings “as one continuous proceeding.” In re Hudson, 294
Mich App at 264. Therefore, respondent’s plea of no contest to the allegations contained in the
first amended petition became evidence in this case. Id. This included an admission by
respondent to “neglect, cruelty, drunkenness, criminality, or depravity.” See MCL 712A.2(b)(2).
Therefore, respondent is incorrect in saying that the only condition supporting the trial court’s
original adjudication was his incarceration.

        Testimony regarding respondent’s substance abuse, domestic violence, and criminality
were all presented at the termination hearing before the trial court, as was the respondent’s lack
of engagement with programs intended to mitigate these concerns. Evidence was presented at
the termination hearing showing that the DHHS made plans and recommendations for
respondent to follow. The DHHS also made accommodations to defendant’s incarceration,
suggesting that he participate in prison programs. It also provided supplies for the purpose of
writing letters and drawing pictures to send to the minor child for the purpose of building a bond.
Respondent provided little to no documentation of his participation or follow through on the
prison programs he allegedly applied to. In addition, respondent sent one letter over the course
of 14 months despite this option being readily available to him. There was no follow through by
respondent in addressing the underlying concerns in this case. Although incarceration alone may
not form the sole basis of a termination, a respondent’s failure to engage in and follow through
with the parent-agency treatment plan to remedy circumstances while incarcerated may form the
basis for a termination under MCL 712A.19b(3)(c)(i), so long as respondent has been allowed
meaningful participation in the trial court’s proceedings.2 Therefore, respondent’s case is
factually distinct from Pops and Mason, in that incarceration alone was not the ongoing
circumstance of adjudication under MCL 712A.19b(3)(c)(i).

       In addition, although Mason prohibits incarceration and criminal history from being the
sole basis for termination, it does not prohibit its consideration at all. In this case, respondent
was incarcerated throughout proceedings in a variety of correctional facilities, and by the
termination hearing was in Newaygo County Jail for two more pending criminal matters,
including first-degree home invasion as a third-offense habitual offender. This was in spite of
the DHHS’s attempts to provide him with programming, and this lack of progress by respondent
was the ultimate basis of the trial court’s finding of sufficient evidence. The trial court explicitly
noted the limitations that respondent’s incarceration imposed on him, but it still found that there
was insufficient progress in that context.

        Considering the 15 months of opportunity to remedy the nonincarceration conditions, the
trial court did not clearly err in finding that respondent’s substance abuse, domestic relations, and
criminality continued to exist and that “there [was] no reasonable likelihood that the conditions
will be rectified within a reasonable time considering the child’s age.” MCL 712A.19b(3)(c)(i).




2
  Although respondent was incarcerated throughout these proceedings, he meaningfully
participated in every hearing by appearing either in person or via telephone.

                                                 -3-
        Respondent next argues that the trial court clearly erred in finding that termination of his
parental rights was in the child’s best interests. “In deciding whether termination is in the child’s
best interests, the court may consider 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.” 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 Minors, 303 Mich App 701, 713-714; 846 NW2d 61 (2014) (quotation marks and citation
omitted). Furthermore, the trial court may also consider how long the child has lived in the
present home and the likelihood that the child “could be returned to [the] parents’ home within
the foreseeable future, if at all.” In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569
(2012).

        In this case, the trial court did not err in finding that termination of respondent’s parental
rights was in the minor child’s best interests. The trial court found that respondent failed to
follow his case service plan by participating in prison programs or writing to his son. Because of
respondent’s incarceration, the DHHS created a reunification plan focused on letter writing and
internal prison services that respondent would engage in. However, respondent did not provide
documentation of any engagement with any of the recommended services, although he claimed
without evidence to have recently begun additional services. Although respondent also claimed
that he sent as many as five letters to the minor child, the DHHS only received one in 15 months,
and this single letter was addressed to the DHHS rather than the minor child. Respondent
presented no evidence to mitigate these allegations that he did not engage with the minor child.
In light of “the trial court’s special opportunity to observe the witnesses,” we defer to the trial
court’s determination that the DHHS was correct regarding respondent’s lack of engagement. In
re BZ, 264 Mich App at 296-297. This lack of bond with the minor child, refusal to remedy it,
and refusal to participate in programs intended to prepare him for parenthood, weigh heavily
against respondent.

       In contrast, the minor child developed a strong bond with his maternal grandmother
caregiver and step-grandparent caregiver, to the point that he viewed them as his parents. Both
were willing to adopt and provide permanency for the minor child. The trial court heard
testimony from the maternal grandmother, who described the minor child’s home as a stable
environment where he lived since his birth. The trial court did not err in finding that a later
removal of the minor child to respondent, a virtual stranger, would not have resulted in a stable
environment for the minor child. There was a preponderance of the evidence present in the
record supporting the trial court’s findings. Therefore, the trial court did not err in finding that
termination was in the best interests of the minor child.

       Affirmed.



                                                              /s/ David H. Sawyer
                                                              /s/ Stephen L. Borrello
                                                              /s/ Douglas B. Shapiro

                                                 -4-
