            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                                                                     UNPUBLISHED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 DEMONTIGNY/LAUBE, Minors.                                      May 9, 2019

                                                                     No. 345760
                                                                     Bay Circuit Court
                                                                     Family Division
                                                                     LC No. 16-012245-NA


Before: BOONSTRA, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

        Respondent-mother appeals as of right the trial court’s order terminating her parental
rights to two minor children, CD and FL, under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j).1 We
affirm.

                                        I. DISPOSITION

                                 A. STATUTORY GROUNDS

        Respondent first argues that the trial court erred by finding statutory grounds to terminate
her 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 VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011).
We review for clear error a trial court’s ruling that a statutory ground for termination has been
proved by clear and convincing evidence. In re Hudson, 294 Mich App 261, 264; 817 NW2d
115 (2011). “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).



1
  FL’s father was, originally, a respondent in the proceedings below, but he released his parental
rights to FL. CD’s father is deceased.



                                                -1-
        Here, the trial court terminated respondent’s rights under MCL 712A.19b(3)(c)(i), (c)(ii),
(g) and (j), which provide:

       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.

               (ii) Other conditions exist that cause the child to come within the court’s
       jurisdiction, the parent has received recommendations to rectify those conditions,
       the conditions have not been rectified by the parent after the parent has received
       notice and a hearing and has been given a reasonable opportunity to rectify the
       conditions, and there is no reasonable likelihood that the conditions will be
       rectified within a reasonable time considering the child’s age.

                                              ***

                (g) The parent, although, in the court’s discretion, financially able to do
       so, 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.

        Regarding subsection (c)(i), the adjudication was primarily based on respondent’s issues
with alcohol abuse and domestic violence. On several occasions between March 2016 and
December 2016, police were called to respondent’s home after respondent and FL’s father, GL,
had consumed alcohol and engaged in domestic violence. Indeed, although respondent’s conduct
resulted in a domestic-violence conviction, the domestic-violence incidents continued to occur.
Respondent was offered services at a shelter, but was terminated from the program because she
did not comply with its rules. Respondent pleaded no contest to certain instances of alcohol
abuse and domestic violence and the court assumed jurisdiction over the children in December
2016.



                                                -2-
         The children were removed from respondent’s home in January 2017. Nearly one year
later, in December 2017, respondent was still dating GL. Respondent initially denied that the
relationship was continuing, but eventually confessed as much to the court. Respondent also
continued to abuse alcohol during this time. Respondent was admitted to a hospital twice in
August 2017 for extreme intoxication. In November 2017, respondent left her inpatient alcohol-
treatment program against the advice of staff. She was otherwise inconsistent in her compliance
with the service plan. Accordingly, in December 2017, the trial court indicated that petitioner
should pursue termination of respondent’s parental rights. The termination hearing was set for
May 2018.

        In January 2018, respondent was arrested for operating a vehicle while under the
influence of alcohol (OWI) and obstructing a police officer. She was convicted of these offenses
and lost her driver’s license and her health-care job. Following the OWI incident, respondent
started to make some progress on her domestic-violence and substance-abuse issues.
Respondent finally ended her relationship with GL in January 2018. Respondent reengaged with
her therapist and had begun to establish a support system. She had found a new job as a fast-food
worker and was attending group recovery sessions for her substance-abuse issues. Nevertheless,
in March 2018, respondent was observed ordering a beer at a bar. Additionally, respondent had
missed several sessions for her recovery group. When asked at the termination hearing whether
she was ready for her children to be returned to her care, respondent stated, “I still think I need to
work on . . . a few things.” This sentiment was echoed by her therapist, who testified that,
despite respondent’s recent success, respondent’s issues concerning relationships had only “been
touched on” during therapy and that the two had not yet had time to delve into the issues of
trauma and domestic violence. Respondent’s therapist recommended at least a year of therapy to
deal with these issues.

       On this record, we are not left with a definite and firm conviction that the trial court erred
by finding that the conditions supporting adjudication continued to exist. Preliminarily, we note
that respondent’s progress occurred only after she was threatened with termination of her
parental rights. Although her recent progress is commendable, respondent’s long history of
substance-abuse and domestic violence indicates that this recent change will not be an easy one.
Indeed, respondent’s progress was not without its shortcomings, given that respondent was
observed ordering a beer just two months before the termination hearing and had been absent
from several group therapy sessions. Although respondent had been consistently attending
therapy, she had not yet addressed the relationship issues that led to the repeated instances of
domestic violence.

        Similarly, we are not left with a definite and firm conviction that the trial court erred by
finding that the conditions were unlikely to improve within a reasonable time considering the
children’s age. Particularly relevant to this consideration is the urgency of the children’s need
for permanence and stability. Respondent’s children witnessed the domestic violence and
substance abuse. CD had been highly traumatized from the violence and, as a result, needed
substantial structure and did not like change. Testimony indicated that CD liked things to be
“quiet” and “restful,” and that the whole process was “wear[ing] on him.” In addition, testimony
clearly established that FL was more bonded with his foster mother than with respondent. On
the last day of the termination hearing, the children’s guardian ad litem aptly noted that, because
of FL’s young age, he had been in foster care considerably longer than he had lived with

                                                 -3-
respondent. The guardian ad litem stated that “any time we move visits or increase visits [FL] he
struggles because he is so bonded to the caregivers that . . . he now considers his parents.”
Accordingly, the record makes clear that the children needed permanency in the near future.
Because respondent had only recently begun to address her substance-abuse and mental-health
issues and would need at least a year of therapy to address her domestic-violence issues,
respondent was unlikely to able to resolve the conditions leading to adjudication within a
reasonable time, considering the children’s need for stability.

       Therefore, we conclude that the trial court did not err by finding that MCL
712A.19b(3)(c)(i) supported termination. Given that “the petitioner need only establish one
ground for termination,” we need not address MCL 712A.19b(3)(g) or (j). In re Trejo, 462 Mich
341, 360; 612 NW2d 407 (2000).

                                       B. BEST INTERESTS

         Next, respondent argues that termination was not in her children’s best interests. “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). “[W]hether termination of parental rights is in the best interests of the child must
be proven by a preponderance of the evidence.” In re Moss, 301 Mich App 76, 90; 836 NW2d
182 (2013). “The trial court should weigh all the evidence available to determine the children’s
best interests.” In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). “To determine
whether termination of 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.’ ” Id., quoting In re Olive/Metts, 297 Mich App 35, 41-42; 823
NW2d 144 (2012). Other relevant factors include any relevant “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.” Id. at 714. We
review for clear error the trial court’s finding that termination is in a child’s best interests. In re
Trejo, 462 Mich at 356-357.

        The testimony was clear that FL—who had been in foster care longer than he had been
with respondent—was more bonded to his foster family than to respondent. The court-advocated
special advocate (CASA) testified that FL was “[v]ery, very comfortable” in his foster home and
had made great progress there. In addition, FL had been resisting visitations with respondent.
His foster parents were willing to adopt him and his foster mother had a cordial relationship with
CD’s foster mother and arranged sibling visits.

         For much of the case CD had expressed a desire to continue living with his relative foster
mother. CD did express a recent desire to live with respondent, but the testimony was clear that
he was a child who had suffered a lot of trauma and required a particularly large amount of
stability. His foster mother, WC, implemented a routine to give him stability, and she was
willing to adopt him. The CASA stated that WC was “an expert at knowing how to handle
[CD’s] behavior” and that CD felt “very safe” and “stable” in her home. CD’s therapist testified


                                                 -4-
that CD was bonded to WC and looked to her for comfort. At times, CD did not want to attend
visits with respondent.

        As noted previously, the children were in need of stability and permanency within the
near future. Considering the stable, pre-adoptive environments of the children, their very strong
bonds with their foster parents, and the fact that respondent would need at least a year to progress
with her treatment, we are not left with a definite and firm conviction that the trial court erred by
determining that termination was in each child’s best interests.

                                   C. OTHER CHALLENGES

         Respondent challenges the trial court’s findings on two additional grounds. First,
respondent argues that her case should have been decided by a jury—not the trial court—and that
the trial court erred by denying her request for a jury. We disagree. “Respondents may demand
a jury determination of the facts in the adjudicative phase, but no jury is allowed at the
dispositional hearings.” In re Brock, 442 Mich 101, 108; 499 NW2d 752 (1993); see also In re
Sanders, 495 Mich 394, 406; 852 NW2d 524 (2014).

        Second, respondent contends that a reversal or remand is appropriate because the trial
court delayed in issuing its termination opinion and thereby violated both MCL 712A.19b(1) and
MCR 3.977(I)(1). Under these authorities, the trial court is required to render its findings of fact
on the record or in writing within 28 days after the taking of final proofs but no later than 70
days after the commencement of the termination hearing. MCR 3.977(I)(1), MCL 712A.19b(1).
We agree with respondent that the trial court’s opinion was untimely: the trial court missed the
28-day period by 47 days and the 70-day period by 41 days. Nonetheless, we do not believe that
this error warrants reversal or remand. This Court has consistently interpreted the court rule “as
not requiring dismissal” where its time limits have been violated. In re TC, 251 Mich App 368,
370-371; 650 NW2d 698 (2002).2 Especially here, where the children have a demonstrated need
for permanency and stability, remanding for further proceedings would not further substantial
justice. See MCR 2.613(A) (stating that an error is not grounds for disturbing the order unless
refusal to do so would be inconsistent with substantial justice). Substantial justice is not served
by meeting delay with more delay. In re TC, 251 Mich App at 371.

                                       II. ADJUDICATION

       Finally, respondent argues that the order of termination must be reversed because the trial
court violated MCR 3.971(B)(4) by failing to inform her during the plea proceedings at
adjudication that her pleas could be used as evidence during later proceedings to terminate her



2
  The 28- and 70-day requirements were previously codified under MCR 5.974(F). Subchapter
5.900 was deleted from the court rules effective May 1, 2003, and many of its provisions,
including the provision at issue, were relocated to subchapter 3.900. Although our prior opinions
interpret MCR 5.974(F), because the relevant substance of the court rule has not changed, those
opinions retain their precedential value.


                                                -5-
parental rights. 3 We review this unpreserved issue for plain error affecting respondent’s
substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). Reversal is
warranted only when the plain, forfeited error resulted in an improper termination or affected the
fairness, integrity or public reputation of judicial proceedings independent of the outcome. See
id. at 9.

        MCR 3.971(B)(4) requires that, before the trial court may accept a plea of no contest, the
trial court must advise the respondent on the record “of the consequences of the plea, including
that the plea can later be used as evidence in a proceeding to terminate parental rights if the
respondent is a parent.” At the adjudication hearing, the referee informed respondent that she
had the right to a jury trial regarding whether the court should take jurisdiction over the children
and the right to present witnesses. The referee then explained to respondent that, by entering a
plea, she was “giving up these rights and all the rights that go along with a trial.” The referee
continued that, by entering a plea, respondent was telling the court that she was willing to start
working on the service plan and that, if respondent did not benefit from the services and was not
able to provide a proper home for her children within a reasonable time, then the court could
entertain a petition to terminate respondent’s parental rights. Respondent then entered the
aforementioned no-contest pleas.

        The referee erred by not specifically informing respondent that the pleas could be used as
evidence in a hearing on the termination of her parental rights. See In re Mitchell, 485 Mich
922; 773 NW2d 663 (2009); In re Hudson, 483 Mich 920, 928-929; 763 NW2d 618 (2009).4
Nevertheless, we do not believe that this error resulted in an improper termination or affected the
fairness, integrity or public reputation of judicial proceedings independent of the outcome.
Accordingly, we conclude that respondent is not entitled to relief.




3
  Petitioner argues that this challenge constitutes an improper collateral attack on the trial court’s
assumption of jurisdiction. Whether respondent can challenge jurisdiction on the basis of an
inadequate advice of rights presents a close question. Compare In re SLH, 277 Mich App 662,
668; 747 NW2d 547 (2008) (noting that respondents are generally prohibited from collaterally
attacking jurisdiction after the filing of a supplemental petition for termination); with In re
Mitchell, 485 Mich 922; 773 NW2d 663 (2009) (remanding after termination in part because of
errors at the adjudicative stage); In re Hudson, 483 Mich 920, 928-929; 763 NW2d 618 (2009)
(same). Nevertheless, because we conclude that the error does not warrant relief under plain-
error review, we need not address this question.
4
  Both cases remanded for further proceedings. Nonetheless, in both cases, unlike the present
case, the error was compounded by errors that tended to deny the respondent the right to counsel.
See In re Mitchell, 485 Mich 922; In re Hudson, 483 Mich 928-929. As will be explained, we
conclude that a different result is necessary under the plain-error rule when the failure to adhere
strictly to MCR 3.971(B)(4) appears in the absence of other serious errors.


                                                 -6-
        Critically, respondent has not presented this Court with any evidence5 showing that she
would not have entered the plea had she been informed that it could be used as evidence at the
termination hearing. Indeed, on the current record, respondent’s assertion that she would do so is
doubtful. Respondent was informed that her plea could eventually lead to a petition to terminate
her parental rights, particularly if she did not benefit from her service plan, which would
inevitably be fashioned to address the allegations in the petition. Thus, while respondent was not
specifically informed that the plea could be used as evidence, she understood that her failure to
address the allegations in the petition could lead to the termination of her parental rights. Being
so informed, respondent choose to enter her no-contest plea and begin working on her service
plan instead of challenging the petition. Having been informed that not contesting the plea could
put her on a path to the termination of her parental rights, we find it unlikely that respondent
would have abstained from entering the plea had she been informed that the plea could be used
as evidence in the termination hearing.

        Moreover, it is clear that the referee, in assuming jurisdiction over the children, was
focusing on the issues of substance abuse and domestic violence. Evidence of police
involvement for domestic violence, concerning an incident when FL was in the home, was
elicited at a preliminary hearing before adjudication. Also elicited was that respondent had a
history of being “volatile” after drinking. Her own attorney stated that respondent had “a big
issue” with drinking in the past, and a Department of Health and Human Services employee
affirmed that respondent was an alcoholic. The children’s guardian ad litem at this hearing
referred to “a continuing pattern of drinking and domestic violence.” It is true that these
statements were not provided under oath, but, given (1) the above information, which was
elicited even before the adjudication hearing; (2) the large amount of evidence regarding alcohol
abuse and domestic violence that petitioner presented throughout the proceedings; and (3) the
fact that some of the information regarding these issues was supported by police records and
criminal records, it is not reasonable to conclude that if respondent had not pleaded to the
petition, the court would not have assumed jurisdiction over the children by way of trial.
Accordingly, it is not reasonable to conclude that any error regarding MCR 3.971(B)(4) affected
respondent’s substantial rights; resulted in adjudication of an “innocent” parent; or affected the
fairness, integrity, or public reputation of judicial proceedings. Thus, despite the error,
respondent is not entitled to relief. 6




5
 Respondent has not even offered an affidavit attesting that she would have refrained from
making the plea had she known it could be used as evidence at the termination hearing.
6
  Respondent also argues that the court should have informed her that hearsay evidence could be
used at the termination hearing in relation to the issues that led to adjudication. See MCR
3.977(H)(2). Nonetheless, while MCR 3.971(B)(4) indicates that the court must advise the
respondent “of the consequences of the plea,” it does not require the court to specifically advise
the respondent about the use of hearsay at the termination hearing. As noted, the referee did
inform respondent of many of the “consequences of the plea,” and respondent has not shown
entitlement to relief regarding this “hearsay” issue for the same reasons that she has not shown


                                                -7-
                                       III. CONCLUSION

        The trial court erred at the adjudicatory stage by failing to inform respondent that her plea
could be used as evidence at the termination hearing. At the dispositional stage, the trial court
erred by failing to issue its opinion within the time frames set by MCR 3.977(I)(1) and MCL
712A.19b(1). Neither error entitles respondent to relief. Because we are not left with a definite
and firm conviction that the trial court erred in its statutory-grounds or best-interest analysis, we
affirm the termination of respondent’s parental rights.



                                                              /s/ Mark T. Boonstra
                                                              /s/ Patrick M. Meter
                                                              /s/ Karen M. Fort Hood




entitlement to relief based on the referee’s failure to explicitly say that the pleas could later be
used as evidence in a proceeding to terminate parental rights.



                                                 -8-
