                          STATE OF MICHIGAN

                           COURT OF APPEALS


                                                                   UNPUBLISHED
In re LATHAM, Minors.                                              March 27, 2018

                                                                   No. 339250
                                                                   Livingston Circuit Court
                                                                   Family Division
                                                                   LC No. 15-015054-NA



In re LATHAM, Minor.                                               No. 339257
                                                                   Livingston Circuit Court
                                                                   Family Division
                                                                   LC No. 12-014303-NA


Before: STEPHENS, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

PER CURIAM.

        In these consolidated cases, respondent-father appeals the orders terminating his parental
rights to the minor children, SL, PL, and GL,1 under MCL 712A.19b(3)(c)(i) (conditions of the
adjudication continue to exist), (g) (failure to provide proper care and custody), and (j)
(likelihood of harm). For the reasons set forth below, we affirm.

        Respondent is the biological father to SL and PL. The parental rights of these children’s
respective mothers, who were also respondents in the proceedings below, were separately
terminated. Respondent has a long history of drug use, including guilty pleas for the use of
cocaine and heroin. Additionally, both children’s mothers testified to incidents of domestic
violence. Petitioner’s involvement in this matter began in July 2015, when SL found PL’s
mother, respondent’s wife, unconscious as a result of a heroin overdose. Petitioner removed the
children from their parents’ care, placed SL and GL in foster care, and placed PL with a relative.




1
  Respondent is the legal father of GL because GL was born to respondent’s wife, but the wife
testified that respondent was not the biological father of GL and expressed uncertainty over who
the father might be. Respondent has waived any argument with respect to GL, and thus this
appeal concerns his rights to PL and SL only.


                                               -1-
        Respondent’s parent agency treatment plan required him to participate in parenting
classes, along with substance abuse and domestic violence services, and to obtain stable
employment and housing. There is no dispute that in the months after the filing of the petition,
respondent failed to participate in services. Respondent admitted that in September 2015, he
attended an appointment at Key Development, a substance-abuse treatment agency, and that he
arrived late and left early. Respondent further admitted that he was using heroin at the time, and
that he altered or otherwise attempted to mask his samples for drug screens.

        Respondent was arrested for a violation of his probation in October 2015, but was
released to an inpatient rehabilitation facility, where he was expected to remain for 90 days.
Less than two hours after his arrival at the rehabilitation facility, respondent left the facility and
spent approximately $2,000 on drugs. Respondent’s caseworker testified that respondent was to
complete the Domestic Assailant Intervention Program (DAIP), but he did not complete the
intake appointment and failed to complete the program. Further, respondent did not complete a
psychological assessment, and failed to complete a parenting program in the fall of 2015.
Respondent was arrested in November 2015 for possession of heroin and cocaine, and he pled
guilty to two counts of felony possession. Approximately one month before respondent’s release
from prison, petitioner requested termination of respondent’s parental rights.

         During the termination hearing, respondent’s case worker testified that he communicated
with respondent during his incarceration, once a month by letter and once in person. He stated
that respondent was referred to services and he began participating in substance abuse, emotional
stability, and employment services. Respondent also testified to various services he participated
in during his incarceration. However, despite respondent’s involvement in various services
during his incarceration, the caseworker expressed concerns that “we have not seen any length of
time where [respondent] has been . . . outside of incarceration . . . and maintain[ed] sobriety.”
Respondent’s wife testified that respondent relapsed while in prison, and that he had asked her to
smuggle Suboxone into the facility. The caseworker expressed this indicated that the substance-
abuse services had not resulted in a “change in the mind set and . . . building the coping skills
needed . . . to live as an addict,” and opined that it would take respondent “approximately a year”
to reach stability. The caseworker was also concerned that, even if respondent were drug free, he
might “turn to anger . . . or aggression,” and added, “I’m concerned that even if he’s engaged in
services right now . . . that he’s going to have a high likelihood of . . . relapsing and . . .
continued use.”

        During the proceedings on the first day of the termination hearing, which occurred
approximately two weeks after respondent’s release from prison, respondent stated that he had
begun working for an asphalt company. During the proceedings on the third and final day of the
hearing, six weeks since his release from prison, respondent reported that he had worked for the
asphalt company, and for a restaurant’s catering business, for a total of four days.

       Testimony at the termination hearing also revealed that after his release from prison,
respondent began living with a family friend, whom he regarded as a father figure, in a home
described as “a little bit outdated” and in need of cleaning before the children could join him
there because of “dust” and “an overabundance of food.” There was also testimony that the
family friend was an alcoholic and a hoarder.


                                                 -2-
         Following the termination hearing, the trial court found that there was clear and
convincing evidence to terminate respondent’s parental rights under MCL 712A.19b(3)(c)(i), (g),
and (j), and that termination was in the children’s best interests.

       On appeal, respondent first argues that petitioner failed to make reasonable efforts to
reunify the family because his parental rights were terminated on the basis of his incarceration.
We disagree.2

        Under the Probate Code, MCL 710.21 et seq., petitioner “has an affirmative duty to make
reasonable efforts to reunify a family before seeking termination of parental rights.” In re
Hicks/Brown, ___ Mich ___, ___; 893 NW2d 637 (2017) (Docket No. 153786); slip op at 4
(citations omitted). Those reasonable efforts must include petitioner’s creation of a service plan
that states the steps that it, along with the parent, will take to resolve “the issues that led to court
involvement and to achieve reunification.” Id. at ___; slip op at 4. Before a child who has come
within the jurisdiction of the family court will be returned to a parent, that parent must show that
he or she can meet their child’s basic needs. In re Terry, 240 Mich App 14, 28; 610 NW2d 563
(2000). “If a parent cannot or will not meet her irreducible minimum parental responsibilities,
the needs of the child must prevail over the needs of the parent.” Id. Although petitioner has “a
responsibility to expend reasonable efforts to provide services to secure reunification,” a
respondent must participate in, and benefit from, services that are offered. In re Frey, 297 Mich
App 242, 248; 824 NW2d 569 (2012).

        The trial court terminated respondents’ parental rights under MCL 712A.19b(3)(c)(i), (g),
and (j), which permit termination under the following circumstances:

              (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 disposition
       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.

                                               * * *




2
  This Court reviews a circuit court’s decision to terminate parental rights under the clear error
standard. In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009). “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). Under that standard,
the lower court’s decision must be “more than just maybe or probably wrong.” In re Trejo
Minors, 462 Mich 341, 356; 612 NW2d 407 (2000) (quotation marks and citations omitted).


                                                  -3-
               (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.

Respondent cites In re Mason, 486 Mich 142, 156; 782 NW2d 747 (2010) in support of his
argument. However, we conclude that respondent’s argument lacks merit.

        In Mason, the respondent was “jailed for drunk driving,” the removal petition was filed
while the respondent was incarcerated, and the respondent participated in a hearing over the
telephone, but respondent was not informed of five subsequent hearings. Id. at 147-148. More
than 16 months after his initial participation, the respondent informed the trial court of his
completion of various classes, as well as attendance at Alcoholics Anonymous meetings, and that
he was on waiting lists for parenting classes and counseling. Id. at 148-149. The petition had set
forth only that respondent was incarcerated and noted that he had been participating in “12-step
meetings,” a “Business Education Technology Program,” and that he was on a waiting list for
parenting classes. Id. at 149. Our Supreme Court, citing MCL 712A.19a(2), stated that the state
must put forth “[r]easonable efforts to reunify the child and family” and that “[t]he state is not
relieved of its duties to engage an absent parent merely because that parent is incarcerated.” Id.
at 152. The Court explained that a respondent in parental rights termination proceedings has a
“statutory right to be provided services.” Id. at 159. According to the Court, “The mere present
inability to personally care for one’s children as a result of incarceration does not constitute
grounds for termination.” Id. at 160.

        In this case, however, respondent was provided with services and fully participated in the
proceedings. In the period between adjudication and respondent’s incarceration, respondent was
referred to drug screens, the DAIP, a psychological assessment, and a parenting program, but
failed to complete any of the drug screens or intake appointments. Respondent thus had an
opportunity to participate in services before his incarceration but failed to do so, unlike the
respondent in Mason, who was incarcerated at the time the petition was filed. 486 Mich at 147.

        Moreover, respondent’s primary caseworker communicated with respondent once a
month by letter, met respondent once in person, and communicated with the prison regarding the
services that were available to respondent. Although a psychological assessment was not
conducted while respondent was in prison, his caseworker testified that it was not possible for
respondent to receive such an assessment while in prison. Nevertheless, respondent participated
in several services while incarcerated. Given that respondent had the opportunity before
becoming incarcerated to engage in services but choose not to do so, and in fact, participated in a
variety of programs while incarcerated, we conclude that respondent was not deprived of his
“statutory right to be provided services.” Mason, 486 Mich at 159.


                                                -4-
       Additionally, in contrast to the respondent in Mason, who was not included in hearings
for a 16-month period, respondent appeared in person at two of the hearings, and by video at
seven hearings during his incarceration.

        Respondent argues generally that he should have been given more time to benefit from
services. However, “the Legislature did not intend that children be left indefinitely in foster care,
but rather that parental rights be terminated if the conditions leading to the proceedings could not
be rectified within a reasonable time.” In re Dahms, 187 Mich App 644, 647; 468 NW2d 315
(1991). We conclude that respondent had adequate time to participate in, and benefit from,
services to allow the trial court a reasonable basis for assessing his prospects for overcoming
reunification barriers.

       Moreover, petitioner presented clear and convincing evidence beyond respondent’s
incarceration to establish each of the three statutory grounds for termination. See In re JK, 468
Mich 202, 210; 661 NW2d 216 (2003) (“The petitioner bears the burden of establishing the
existence of at least one of [the statutory grounds for termination of parental rights] by clear and
convincing evidence.”).

        The trial court properly terminated respondent’s parental rights under MCL
712A.19b(3)(c)(i). The records reveal that more than 182 days have passed since the issuance of
the initial disposition order and when the trial court found that statutory grounds existed to
terminate respondent’s parental rights. Additionally, the conditions that led to adjudication were
substance abuse, emotional stability, parenting skills, employment, and housing.

         As noted, before going to prison respondent had failed to participate services. Although
there was evidence that respondent participated in services while in prison, there was evidence
that he did not benefit from the services. While respondent’s negative drug screen tests since his
release from prison indicate some benefits to respondent from the substance-abuse services
provided; however, the referee’s doubts about respondent’s credibility militated against taking
respondent’s own assertions of reform in this regard at face value. See Thames v Thames, 191
Mich App 299, 311; 477 NW2d 496 (1991) (“Credibility is a matter for the trier of fact to
ascertain. This Court will not resolve it anew.”). Also, respondent’s resolve about his substance
abuse reform was called into doubt by his description of his relapse-prevention plan as “when
things get crazy in my life that I call someone and tell them so I’m held accountable for actions,”
and respondent’s wife’s testimony that respondent had asked her to smuggle Suboxone into
prison for him. The primary caseworker expressed concerns that respondent had not
demonstrated sobriety outside of prison for “any length of time,” and that respondent’s apparent
endeavor to obtain drugs while incarcerated indicated that the substance-abuse services had not
resulted in a “change in the mind set and . . . building the coping skills needed . . . to live as an
addict.” Also of concern is that respondent planned to live with his friend whom other witnesses
described as an alcoholic and a hoarder. For these reasons, we conclude that the record supports
the trial court’s conclusion that respondent did not benefit from his substance-abuse services.

        Further, respondent’s testimony that he had only worked for four days and for two
different employees since his release from prison supports the trial court’s conclusion that
respondent’s employment situation was unstable. This record, considered along with
respondent’s poor record of participating in, and benefitting from, services, does not indicate that

                                                -5-
the trial court was “more than just maybe or probably wrong,” In re Trejo, 462 Mich at 356, in
concluding that petitioner had proved by clear and convincing evidence that termination was
warranted under MCL 712A.19b(3)(c)(i).

        Termination of respondent’s parental rights was also proper under MCL 712A.19b(3)(j).
Respondent’s argument that this Court should reverse the termination of his parental rights
pursuant to In re Pops, 315 Mich App 590; 890 NW2d 902 (2016), is without merit as Pops is
factually distinguishable. In that case, the trial court obtained jurisdiction over the minor, EP,
upon the petitioner’s allegation that the respondent fled from police with EP in the vehicle. Id. at
592. The respondent pled guilty to resisting and obstructing a police officer, and was sentenced
to serve a term of probation. Id. at 593. While on probation, the respondent participated in
services, but was subsequently imprisoned for carrying a concealed weapon. Id. The trial court
there found that the petitioner had established grounds for termination under MCL
712A.19b(3)(j), (c)(i), and (g). Id. at 593-594.

        We reversed, noting that “[t]he trial court terminated parental rights . . . solely because
respondent was incarcerated, and [because it concluded that the child] would ‘obviously’ be
harmed if returned to respondent.” Id. at 600. We held that a criminal record alone is not
sufficient to terminate parental rights and that the trial court’s conclusion that reunification
would result in harm was clear error where the petitioner “did not present any evidence that
respondent ever harmed his child or was likely to harm his child.” Id. By contrast, in this case,
there was evidence that petitioner was violent towards his wife, had struck her as well as SL, and
that the children had witnessed domestic violence. There was also testimony that respondent
used heroine while the children were present. Moreover, respondent’s friend’s house did not
offer a safe environment for the children.

        Similarly, we reject respondent’s argument that we should consider the rationale in In re
JK, which he asserts “seems to say assessments are important in child protection cases.”
Respondent contends that the Court In re Jk, “clearly [stated that] if the service provider doesn’t
have the right qualifications then DHS must find one who does. When such things do not occur,
the evidence is not sufficient to warrant termination.” Respondent’s argument is unclear as it
does not identify any of the service providers in this case that does not have the right
qualifications. Moreover, the Court In re JK did not discuss the importance of assessments
generally; rather it addressed whether a particular assessment provided clear and convincing
evidence to support termination of parental rights where the therapist that provided the bonding
assessment observed the respondent and the child “for just one hour.” In re Jk, 468 Mich at 213.

       Given that petitioner was required to establish only one ground for termination, we need
not address respondent’s argument under MCL 712A.19b(3)(g).




                                                -6-
       Respondent also argues that the trial court erred in concluding that termination of his
parental rights was in the best interests of SL and PL. We disagree.3

         In determining a child’s best interests, the trial court may consider the child’s need for
stability and permanency and whether the child is progressing in its current placement. In re
VanDalen, 293 Mich App 120, 141; 809 NW2d 412 (2011). In addition, the trial court may
consider the children’s bond to the parent, the parent’s parenting ability, and the advantages of a
foster home over the parent’s home. In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144
(2012).      “[T]he preponderance of the evidence standard applies to the best-interest
determination.” In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013).

         The best interests of the children supported termination of respondent’s parental rights.
First, there was no evidence that respondent was bonded to the children. Respondent testified
that he had phone contact with PL about a month before the termination hearing, and that “[s]he
would say hi dad I love you and miss you.” However, respondent testified that his bond with SL
was not “doing very good.” Further, although SL’s mother testified that SL was attached to
respondent, her opinion was based on one instance where she babysat SL in 2015. With respect
to parenting ability, the primary caseworker testified that he had concerns related to respondent’s
“temperament” and ability to meet the “basic needs” of the children. Respondent’s wife testified
that respondent was “a great dad off drugs and alcohol,” but that “on drugs and alcohol very
violent father.”

         Further, at the time of the termination decision, SL was six years old and PL was four
years old. Both had been in foster care for nearly two years. The caseworker testified that PL’s
“greatest need” was a safe, stable, and permanent home. That the children had spent such a large
portion of their lives in foster care called attention to their need for permanency. According to
the primary caseworker, PL’s current placement provided her with basic needs and a “strong
relationship” with her foster parents, who were willing to provide a home for her. He further
testified that SL’s current placement had done “a lot of good work” in connection with her
“adjustment disorder” and other emotional and developmental concerns. The other caseworker
reported that the foster families provided the children with love and affection, and covered their
basic needs. In contrast, respondent wished to bring the children to the home of his friend, who,
as the evidence indicated, was an alcoholic and a hoarder. Therefore, the comparison of
respondent’s proposed home to that of the current foster care placements weighed in favor of
termination.




3
  A circuit court’s decision regarding a child’s best interests is also reviewed for clear error.
MCR 3.977(K); In re Trejo, 462 Mich at 356-357. “ ‘A finding is “clearly erroneous” [if]
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 Rood, 483 Mich 73, 91; 763
NW2d 587 (2009) (citation omitted).


                                                -7-
        There was clear and convincing evidence that it was in the minor children’s bests
interests to terminate respondent’s parental rights.

      Affirmed.



                                                      /s/ Cynthia Diane Stephens
                                                      /s/ Douglas B. Shapiro
                                                      /s/ Amy Ronayne Krause




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