                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                    UNPUBLISHED
In re J. E. TACKETT, Minor.                                         September 20, 2016

                                                                    No. 331443
                                                                    Macomb Circuit Court
                                                                    Family Division
                                                                    LC No. 2014-000063-NA


Before: GADOLA, P.J., and WILDER and METER, JJ.

PER CURIAM.

       Respondent appeals as of right the order terminating his parental rights to a minor child,
JET. The court terminated respondent’s rights pursuant to MCL 712A.19b(3)(c)(i) (182 or more
days have elapsed since issuance of an initial dispositional order, conditions that led to
adjudication continue to exist, and no reasonable likelihood conditions will be rectified within a
reasonable time), (g) (parent failed to provide proper care or custody and no reasonable
expectation parent will provide proper care and custody within a reasonable time), and (j)
(reasonable likelihood child will be harmed if returned home). We affirm.

        JET came into care for testing positive for opiates and benzodiazepines at birth. At the
time, respondent was incarcerated.

       Respondent first argues that the court clearly erred when it found clear and convincing
evidence to terminate his parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). We
disagree.

       “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.

        To terminate parental rights, the trial court must first find that the petitioner has
established, by clear and convincing evidence, a statutory ground for termination. Id. at 713. A
court may terminate a respondent’s parental rights under MCL 712A.19b(3)(c)(i) if “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.” MCL 712A.19b(3)(c)(i).



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        The court entered its initial dispositional order on April 17, 2014, and entered its order
terminating respondent’s parental rights on January 15, 2016, more than 182 days later. Further,
the conditions that led to adjudication included respondent’s incarceration and substance abuse
history. The evidence presented at respondent’s termination hearing established that these issues
continued to exist and there was no reasonable likelihood that the conditions would be rectified
within a reasonable time.

       At the time of the termination hearing on December 4, 2015, respondent was back in
prison after having been released to a treatment program at a facility called Harbor Light on
August 11, 2015. He returned to prison after being discharged from Harbor Light on September
1, 2015, for a positive drug screen and absconding from parole on September 10, 2015. Thus,
respondent had only been out of prison for approximately three weeks before abusing drugs.
Further, he admitted, at the termination hearing, that he still had a substance abuse problem.
Therefore, the conditions that led to adjudication continued to exist.

         In addition, the evidence presented established that no reasonable likelihood existed that
the conditions would be rectified within a reasonable time. Respondent admitted that he had a
history of substance abuse issues. Those issues led to the prison time he was serving at the time
of JET’s birth as well as his incarceration just before the termination hearing. Petitioner waited
to file its termination petition until respondent was given the opportunity to complete his parent
agency agreement (PAA) upon release from prison, at which time JET had been in care for
almost two years. Yet, three weeks following his release, after completing substance abuse
counseling in prison, and while enrolled in a treatment program, respondent abused drugs. When
asked why he used, respondent said he felt overwhelmed by “[t]he potential to mess up and the
responsibility of having [his] son and not knowing what’s going to happen.” From this evidence,
it appears highly unlikely respondent would be able to keep from abusing drugs, and returning to
prison for doing so, within a reasonable time considering JET’s age.

        Next, the trial court did not err when it found clear and convincing evidence existed to
terminate respondent’s parental rights under MCL 712A.19b(3)(g). A trial court may terminate
parental rights under MCL 712A.19b(3)(g) if it finds, by clear and convincing evidence, that
“[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)(g). “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.

       Respondent failed to provide JET with proper care or custody. Respondent had been
incarcerated for the majority of JET’s life and was again incarcerated at the time his rights were
terminated. In terminating respondent’s rights, the court acknowledged that he had failed to
complete portions of the PAA through no fault of his own, because those services had not been
available in prison. However, he also failed to grasp the opportunity to complete his PAA once
released from prison, by using drugs and getting sent back to prison. He never obtained suitable
housing or a legal source of income, and failed to benefit from his substance abuse treatment as
evidenced by his relapse. Further, although “Michigan traditionally permits a parent to achieve
proper care and custody through placement with a relative,” In re Mason, 486 Mich 142, 161 n


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11; 782 NW2d 747 (2010), the relatives caring for JET wanted to adopt and were unwilling to
consider guardianship.

        In addition, for the same reasons as stated above with regard to MCL 712A.19b(3)(c)(i),
the evidence demonstrated that there was no reasonable expectation that respondent would be
able to provide proper care and custody for JET within a reasonable time. Respondent had a
history of substance abuse and quickly relapsed upon release from prison. Further, he acted
knowing that petitioner waited to file its termination petition until he was released from prison
and had the opportunity to complete his PAA.

        Finally, the trial court did not clearly err when it terminated respondent’s parental rights
under MCL 712A.19b(3)(j), which provides that a parent’s rights may be terminated 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.” MCL 712A.19b(3)(j). “[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 parent’s home.” In re White, 303 Mich App at
711. JET had been in care for almost two years at the time of termination, and respondent could
not provide a date for his release from prison. Given the uncertainty regarding respondent’s
release from prison, his failure to fully and successfully comply with the PAA, and his recurring
substance abuse, there was a reasonable likelihood that JET would be harmed if placed with
respondent.

        Next, respondent argues that the court clearly erred by finding termination to be in JET’s
best interests. We disagree.

        This Court reviews a trial court’s determination regarding best interests for clear error.
Id. at 713. “A trial court’s decision is clearly erroneous ‘[i]f although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been made.’ ” In re Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d
144 (2012), quoting In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989) (citations and
quotation marks omitted; alteration in original).

        “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 [child’s] best
interests.” In re White, 303 Mich App at 713; see also MCL 712A.19b(5). To make its best-
interests 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, 297 Mich App at 41-42 (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 [child’s] well-being while in care, and the possibility of adoption.” In re White, 303
Mich App at 714. In addition, placement with a relative weighs against termination. See MCL
712A.19a(6)(a).

       In making its best-interests determination, the court considered respondent’s bond with
JET, JET’s need for permanence and stability, and respondent’s parenting ability. It found that

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respondent had never been JET’s primary caregiver because he entered care at birth, and that
respondent lacked the ability to properly parent or provide stability for JET. Further, the court
acknowledged the willingness of JET’s relatives to adopt rather than serve as JET’s guardian.

        The evidence presented at the termination hearing supported the court’s findings and
best-interests determination. Although respondent visited with JET 18 times while incarcerated,
he lacked a meaningful bond with the child. Indeed, respondent never personally cared for JET
and had been incarcerated or in treatment facilities for JET’s entire life. He also lacked the
ability to provide JET with permanence or stability. When provided the opportunity to work
towards reunification with JET upon release from prison, respondent returned to abusing drugs,
which led to another incarceration with no set release date. Moreover, the relatives caring for
JET expressed a willingness to adopt, but refused to consider guardianship. Thus, the court did
not clearly err when it determined that it was in JET’s best interests to terminate respondent’s
parental rights.

       Affirmed.



                                                           /s/ Michael F. Gadola
                                                           /s/ Kurtis T. Wilder
                                                           /s/ Patrick M. Meter




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