                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                   UNPUBLISHED
In re S. M. JAMES, Minor.                                          August 20, 2015

                                                                   No. 323265
                                                                   Kent Circuit Court
                                                                   Family Division
                                                                   LC No. 14-051606-NA


Before: OWENS, P.J., and SAAD and GADOLA, JJ.

PER CURIAM.

        Respondent-father appeals as of right from an order terminating his parental rights to his
minor daughter, SM, at the initial dispositional hearing pursuant to MCL 712A.19b(3)(d) and (f).
Because we conclude that the trial court did not clearly err in finding that sufficient evidence
supported termination under MCL 712A.19b(3)(f), and that termination was in the child’s best
interests, we affirm.

                                      I. BACKGROUND

        Shortly after SM’s birth in August 2011, her biological mother voluntarily placed her in a
limited guardianship with Melissa DeLoach. When DeLoach became unable to care for SM,
Matthew and Krista McCully were granted an emergency temporary guardianship over SM in
May 2012, and were officially appointed as successor guardians later that year. As part of the
guardianship placement plan, the probate court ordered respondent-father to regularly visit SM,
to participate in counseling services, and to financially contribute to SM’s care.

        In May 2014, the McCullys filed a petition requesting the trial court to assume
jurisdiction over SM and to terminate respondent-father’s parental rights to the child.1 The
petition alleged that respondent-father had failed, without good cause, to comply with the
guardianship placement plan’s requirements that he visit his daughter, participate in counseling,
and provide financial support for SM. At a termination hearing on July 10, 2014, Matthew
McCully testified that during the two and a half years SM was in the McCullys’ care,


1
  The petition also requested that the trial court terminate mother’s parental rights to SM, but
mother voluntarily released her parental rights and consented to an adoption before the July 2014
termination hearing.


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respondent-father never called or visited, did not provide any assistance for SM’s food or
clothing, and only sent one birthday card and one Christmas card.

        Respondent-father testified on his own behalf at the hearing. He explained that shortly
after SM’s birth in August 2011, he was incarcerated. Following a several month release, he was
incarcerated again in September 2013, and remained incarcerated at the time of the termination
hearing. In total, respondent-father estimated that he had been incarcerated for all but five
months of SM’s life. Respondent-father testified that when he was not in prison, he held a job
making $17.25 an hour, but he did not assist the McCullys with supporting SM in any way.
Respondent-father acknowledged that he did not visit or call SM during the previous two years,
and only attempted to contact her through letters. Respondent-father indicated that he did not
object to the McCullys adopting SM, but he wanted the right to visit her and to get photographs.

       Following proofs and closing arguments, the trial court found that clear and convincing
evidence supported termination under MCL 712A.19b(3)(d) and (f), and found that terminating
respondent-father’s parental rights was in SM’s best interests.

                                  II. STANDARD OF REVIEW

        “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 determination that a statutory ground for termination was established by clear
and convincing evidence. Id.; MCR 3.977(K). Likewise, we review a trial court’s finding that
termination was in a child’s best interests for clear error. In re Trejo, 462 Mich 341, 356-357;
612 NW2d 407 (2000). A trial court’s findings are 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).

                                 III. STATUTORY GROUNDS

       The trial court found that clear and convincing evidence supported terminating
respondent-father’s parental rights under MCL 712A.19b(3)(d) and (f). MCL 712A.19b(3)(f)
provides the following:

               (3) 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:

                                              * * *

              (f) The child has a guardian under the estates and protected individuals
       code, 1998 PA 386, MCL 700.1101 to 700.8206, and both of the following have
       occurred:

              (i) The parent, having the ability to support or assist in supporting the
       minor, has failed or neglected, without good cause, to provide regular and
       substantial support for the minor for a period of 2 years or more before the filing

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       of the petition or, if a support order has been entered, has failed to substantially
       comply with the order for a period of 2 years or more before the filing of the
       petition.

               (ii) The parent, having the ability to visit, contact, or communicate with
       the minor, has regularly and substantially failed or neglected, without good cause,
       to do so for a period of 2 years or more before the filing of the petition.

Thus, termination under § 19b(3)(f) is warranted if clear and convincing evidence shows that the
child has a guardian and the parent, having the ability to do so, fails, without good cause, to both
(i) “provide regular and substantial support for the minor” and (ii) regularly “visit, contact, or
communicate with the minor” for a period of two or more years before the filing of the petition.

        In this case, the evidence clearly established that there was a guardianship in place for
SM pursuant to MCL 700.5205, and that respondent-father, by his own testimony, failed to
provide regular and substantial support for SM and failed to regularly visit, contact, or
communicate with her over a period of two or more years before the filing of the termination
petition. Respondent-father argues, however, that termination under § 19b(3)(f) was nonetheless
inappropriate because there was not clear and convincing evidence that he had the ability to
support and maintain contact with SM due to his frequent incarcerations. We disagree.

        A parent’s incarceration, standing alone, does not relieve the parent of the statutory
responsibility to maintain contact with and provide support for a child when the “incarcerated
parent may still retain the ability to comply with the support and contact requirements of the
statute.” In re Caldwell, 228 Mich App 116, 121; 576 NW2d 724 (1998). The record makes
clear that despite his incarceration, respondent-father had the ability to maintain contact with
SM. In fact, respondent-father sent two cards to SM while he was in prison, thus proving his
ability to maintain contact. Clearly, however, merely sending two cards over a two and a half
year period does not amount to regular and substantial contact. MCL 712A.19b(3)(f)(ii).

        There was also sufficient evidence to support the trial court’s conclusion that respondent-
father had the ability to support or assist with the support of SM. Evidence presented at the
termination hearing revealed that between SM’s birth in August 2011 and the termination
hearing in July 2014, respondent-father was released from prison for periods totaling five
months, during which he maintained a job making $17.25 an hour. Yet, respondent-father never
attempted to send money or gifts to support SM during the two and a half years she was in the
McCullys’ care. Further, nothing in the record indicates that during his terms of incarceration,
respondent-father was unable to earn income or provide some assistance to SM. Given these
facts, we are satisfied that the trial court did not clearly err in finding that clear and convincing
evidence supported terminating respondent-father’s parental rights under § 19b(3)(f). In light of
our conclusion, we need not address the additional statutory ground relied upon by the trial court.
In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).

                                      IV. BEST INTERESTS

       Respondent-father also argues that the trial court clearly erred in finding that termination
of his parental rights was in SM’s best interests. We disagree. “Once a statutory ground for

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termination has been proven, the trial court must find that termination is in the child’s best
interests before it can terminate parental rights.” In re Olive/Metts, 297 Mich App 35, 40; 823
NW2d 144 (2012). In assessing whether termination is in a child’s best interests, the trial court
should weigh all the evidence available to it and may consider factors including “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. at 41-42 (citations
omitted). Other considerations include the length of time the child was in care, the likelihood
that the child could be returned to the parent in the foreseeable future, and the parent’s visitation
history. In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012); In re BZ, 264 Mich
App at 301.

        At the time of the July 2014 termination hearing, SM had been under the care of a
relative guardian for almost three years, and was in need of permanency, stability, and finality.
Respondent-father had not had any physical contact with SM in over two and a half years, and
the only contact he did have with her was through two cards. Moreover, at the time of
termination, respondent-father was incarcerated with no certainty as to when he would be
released. Finally, it is worth noting that respondent-father agreed that SM’s continued placement
with the McCullys was in her best interests, and even indicated that he would not object to the
McCullys adopting SM. Under these circumstances, the trial court did not clearly err in finding
that termination was in SM’s best interests.

       Affirmed.

                                                              /s/ Donald S. Owens
                                                              /s/ Henry William Saad
                                                              /s/ Michael F. Gadola




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