                             STATE OF MICHIGAN

                              COURT OF APPEALS



                                                                    UNPUBLISHED
In re A. J. SMITH, Minor.                                           May 9, 2017

                                                                    No. 335035
                                                                    Wayne Circuit Court
                                                                    Family Division
                                                                    LC No. 10-492502-NA


Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

        Respondent appeals as of right the order terminating his parental rights to the minor
child, AJS, under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). The trial court did not clearly err
in finding a statutory ground to terminate respondent’s parental rights, nor did it clearly err in
finding that termination of respondent’s parental rights was in AJS’s best interests. Accordingly,
we affirm.

                                           I. BASIC FACTS

        AJS was born drug positive, and shortly after his birth, his mother’s parental rights were
terminated.1 Although respondent was incarcerated at the time, he established that he was AJS’s
legal father by signing an affidavit of parentage. The Department of Health and Human Services
(the Department) did not initially seek termination of respondent’s parental rights. Instead, he
was provided with a case services plan that required him to attend parenting classes, find suitable
housing and income, participate in substance abuse counseling, submit to random drug screens,
and attend supervised visits with his son. It appears that respondent was incarcerated for
approximately the first year of the child protective proceedings. During that period, AJS was
placed in a nonrelative foster home, and respondent participated in services available in prison.
When respondent was released, AJS continued placement in a nonrelative foster home, and
respondent continued to participate in services. The record reflects that he completed parenting
classes, attended some of his parenting time visits, earned his GED, found employment, and had
suitable housing.




1
    AJS’s mother is not a party to this appeal.


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        However, after his release from prison, it became apparent that respondent had an
ongoing substance abuse problem. Throughout the duration of the case, he missed 21 drug
screens. Further, he tested positive for various substances on six occasions. Respondent denied
using cocaine, heroin, or morphine despite the fact that he tested positive for them. Respondent
believed that the screens were inaccurate because he was smoking marijuana, but it did not
always show up in his drug screens. Respondent also spent 16 months participating in individual
substance abuse therapy. His therapist believed him to be partially compliant; however, the
foster care caseworker testified that, based on respondent’s positive and missed drug screens,
respondent had failed to benefit from the therapy.

                                  II. STATUTORY GROUNDS

                                  A. STANDARD OF REVIEW

        Respondent first argues that the trial court clearly erred when it found clear and
convincing evidence to terminate his parental rights. “This Court reviews for clear error the trial
court’s factual findings and ultimate determinations on the statutory grounds for termination.” In
re White, 303 Mich App 701, 709; 846 NW2d 61 (2014). A trial court’s findings of fact are
clearly erroneous if “we are definitely and firmly convinced that it made a mistake.” Id. at 709-
710.

                                          B. ANALYSIS

        To terminate parental rights, a trial court must find that the petitioner has established, by
clear and convincing evidence, a statutory ground for termination. In re White, 303 Mich App at
713. The court terminated respondent’s parental rights under MCL 712A.19b(3)(c)(i) and (c)(ii),
which provide:

               (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.

More than 182 days elapsed between the initial dispositional hearing and the termination of
respondent’s parental rights. However, it does not appear that (c)(i) was established by clear and
convincing evidence in this case. It was AJS’s mother’s substance abuse that led to adjudication,


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not respondent’s substance abuse. Thus, to the extent that the trial court relied on subsection
(c)(i) it clearly erred.

        Nevertheless, respondent’s substance abuse qualifies as an “[o]ther condition” causing
AJS to come within the court’s jurisdiction. See MCL 712A.19b(3)(c)(ii). Further, respondent
received services to rectify his substance abuse, including drug screens, substance abuse
counseling, and a significant period of time to show compliance and benefit from the services
offered. Despite the offered services, he continued to test positive or miss drug screens. And,
although his last positive screen was in March 2016, he had missed drug screens after that date,
including missing three screens in the approximately one-month period between the second day
of the termination hearing and the third day of the termination hearing. There was also
testimony that on one occasion respondent deliberately dumped a urine sample and then left after
refusing to give a second sample. Moreover, despite the missed and positive drug screens,
respondent testified that he did not believe he had a substance abuse problem. Indeed, his lawyer
argued that the drug screens were not accurate given that respondent self-reported using
marijuana on a regular basis despite the fact that it did not turn up in the drug screens.2 AJS was
three years old and had been in foster care for almost the entirety of his life. Based on the record
before this Court, we cannot conclude that the trial court clearly erred in finding that respondent
had failed to rectify the condition and would be unable to do so within a reasonable time
considering AJS’s young age.

        Termination was also proper under MCL 712A.19b(3)(g) and (j). MCL 712A.19b(3)(g)
provides that the court may terminate parental rights if “[t]he 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.” MCL 712A.19b(3)(j) provides that the court may terminate parental rights if
“[t]here 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.” Respondent completed
parenting classes, acted appropriately during visits with AJS, attended individual substance
abuse therapy, and obtained suitable housing. However, respondent’s failure to benefit from
substance abuse therapy and to take advantage of the additional time the trial court afforded to
rectify his substance abuse issue—as evidenced by his 21 missed drug screens, six positive
screens, and refusal to even admit that he had a substance abuse problem—demonstrated his
inability to provide AJS with proper care and custody within a reasonable time. Respondent had
nearly two years after his release from prison to fully comply with his case service plan, but he
instead challenged the accuracy of his positive screens, and denied the need to participate in
inpatient substance abuse therapy. “A parent’s failure to participate in and benefit from a service
plan is evidence that the parent will not be able to provide a child proper care and custody.” In
re White, 303 Mich App at 710. In addition, “a parent’s failure to comply with the terms and
conditions of his or her service plan is evidence that the child will be harmed if returned to the


2
  Respondent testified that he stopped using marijuana in April 2016, which was about one
month after respondent’s last positive drug screen. However, he missed additional drug screens
after April 2016, and he was aware that missed screens were counted as positives.


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parent’s home.” Id. at 711. Accordingly, the trial court did not clearly err in terminating
respondent’s parental rights under MCL 712A.19b(3)(g) and (j).

                                     III. BEST INTERESTS

                                 A. STANDARD OF REVIEW

        Respondent also argues that the trial court erred by finding termination to be in AJS’s
best interests. We review for clear error a trial court’s determination regarding a child’s best
interests. In re White, 303 Mich App at 713.

                                         B. ANALYSIS

        “The trial court must order the parent’s rights terminated if the Department has
established a statutory ground for termination by clear and convincing evidence and it finds from
a preponderance of the evidence on the whole record that termination is in the children’s best
interests.” Id. at 713; see also MCL 712A.19b(5). When making its best-interest determination,
“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). Further considerations may include “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 at 714.

        Although respondent testified that he loved AJS, and the foster care caseworker
acknowledged the existence of a bond between the two, the caseworker testified AJS had a
stronger bond with his foster family. AJS lived with the foster family, a potentially pre-adoptive
placement, for the majority of his life, and had never been in respondent’s care. He was three
years old at the time of termination. He had one unsupervised visit with respondent, but the
visits were promptly switched back to supervised because respondent tested positive for heroin
and cocaine. Despite respondent’s knowledge that substance abuse served as the main barrier to
reunification with AJS, respondent failed to fully benefit from therapy and refused to even
acknowledge having any problem with drugs. AJS needed stability and permanence. He had
already been in care for three years, and there were no signs that respondent was going to rectify
his substance abuse issues in the near future. Therefore, the trial court did not err when it found
termination of respondent’s parental rights to be in AJS’s best interests.

       Affirmed.

                                                            /s/ Michael J. Kelly
                                                            /s/ Jane M. Beckering
                                                            /s/ Douglas B. Shapiro




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