                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                    UNPUBLISHED
In re J. NAVEIRA, Minor.                                            December 14, 2017

                                                                    No. 339043
                                                                    Kent Circuit Court
                                                                    Family Division
                                                                    LC No. 15-052519-NA


Before: MARKEY, P.J., and HOEKSTRA and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Respondent-mother appeals as of right the order terminating her parental rights to the
minor child, JN, under MCL 712A.19b(3)(c)(i) (conditions at adjudication continue to exist) and
MCL 712A.19b(3)(g) (failure to provide proper care or custody). Because the trial court did not
clearly err by terminating respondent’s parental rights, we affirm.

        Respondent and JN’s father have been in a relationship for approximately eight years.
Respondent gave birth to JN in July 2015. When JN was born, a drug screening of his
meconium and urine tested positive for opiates, specifically morphine, and respondent tested
positive for morphine at the hospital. 1 Respondent admitted that she used Vicodin without a
prescription during her pregnancy. Respondent also did not have consistent prenatal care, she
did not follow prenatal treatment recommendations, and respondent and father lacked stable
housing at the time of JN’s birth. In September 2015, respondent and father entered pleas to the
allegations in the petition. The trial court made JN a ward of the court but allowed JN to remain
in his parents’ custody. At that time, respondent and father were living with father’s parents.

        Respondent tested positive for cocaine in September of 2015, January of 2016, and
February of 2016. At some point, police raided the home that respondent and father were staying
in as part of an investigation for credit card fraud and theft, and police found a crack pipe among
respondent’s and father’s possessions. In March of 2016, the trial court removed JN from his


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  Respondent is also the biological mother of three older children, who have a different father
than JN. Respondent’s other children were removed from her care in December 2012 due to
respondent’s and JN’s father’s substance abuse issues, a failure to abide by a no-contact order
between JN’s father and the three older children, and financial instability. The biological father
obtained sole legal and physical custody of all three older children in September 2013.



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parents’ care. JN was placed with his maternal grandparents, but two days later, respondent and
father kidnapped JN and fled. The following day, respondent and father were stopped by police
in Georgia, and JN was found in the car. JN was then placed with a foster family.

        Respondent was arrested, and she was in jail until August 2016. When she was released,
respondent was on probation for credit card fraud and theft charges. In October 2016,
respondent and father used drugs together. They both tested positive for a combination of drugs
that included heroin, cocaine, and morphine, with father testing at dangerously high levels.
Respondent also tested positive for cocaine approximately two weeks later. In December 2016,
respondent was sent to prison for violating parole.

        Petitioner filed a supplemental petition for termination, and a termination hearing was
held in May of 2017. Respondent was still incarcerated at the time of the termination hearing,
and her earliest release date was in November 2017. JN was almost two years old, he had been
with his foster-care placement for more than a year, and respondent had been incarcerated for
almost half of his life. The trial court found statutory grounds for termination under MCL
712A.19b(3)(c)(i) and (g), and concluded that termination was in JN’s best interests.
Respondent now appeals as of right.

        On appeal, respondent first argues that the trial court erred in finding statutory grounds
for termination. Specifically, respondent maintains that the trial court erred by concluding that
substance abuse was still an issue for respondent at the time of termination and that this
condition could not be rectified in a reasonable time. Additionally, respondent contends that the
trial court erred by concluding that she had poor parenting skills. According to respondent, the
trial court also erred by failing to recognize that she could provide proper care and custody for
JN during her incarceration by placing JN with either his paternal or maternal grandparents.

        “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 the trial
court's determination for clear error.” Id. “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 Mason, 486 Mich 142, 152; 782 NW2d 747
(2010) (quotation marks, citation, and alterations omitted).

       The trial court found grounds for termination under MCL 712A.19b(3)(c)(i) and (g),
which provide that a court may terminate a parent’s parental rights, if:

        (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 . . .

       (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.

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       (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.

“[E]ach of these grounds requires clear and convincing proof that the parent has not provided
proper care and custody and will not be able to provide proper care and custody within a
reasonable time.” In re Mason, 486 Mich at 164-165. Under both MCL 712A.19b(3)(c)(i) and
(g), “[a] lack of cooperation with reunification services, or other court-ordered conditions, can
bear on a termination decision, if that lack of cooperation relates to issues of abuse or neglect.”
In re LaFrance, 306 Mich App 713, 729; 858 NW2d 143 (2014).

        In this case, at the time of the termination hearing, more than a year and a half had
elapsed since the adjudication and initial disposition. The trial court concluded that the primary
condition that led to adjudication was respondent’s substance abuse issues and that respondent
had not made substantial progress in addressing her substance abuse issues. This finding was not
clearly erroneous. Respondent’s struggle with drug addiction—including heroin, cocaine,
marijuana, and prescription drugs—is a lengthy one as evinced by the removal of her three older
children in 2012 due to respondent’s substance abuse issues. Respondent admitted to drug use
during her pregnancy with JN; and, at the time of his birth, JN’s meconium and urine tested
positive for opiates. Respondent repeatedly tested positive for cocaine while JN was in her care
and a crack pipe was found among her possessions during a police raid. Rather than avail herself
of opportunities for treatment, respondent kidnapped JN and absconded to Georgia with him.
While she was in jail following her arrest in Georgia, she participated in substance abuse
treatment, but she did not continue treatment when she was released and she began using a
combination of drugs shortly after her release. She was incarcerated in December of 2016
because she failed to comply with the conditions of her probation, including participation in
substance abuse classes. At the time of the termination hearing, respondent was still
incarcerated. While respondent argues that she has shown progress addressing her substance
abuse issues during her most recent incarceration, respondent’s history demonstrates that she
cannot stay clean when she is not incarcerated. Moreover, respondent had an earliest release
date in November of 2017 and estimates were that she would need at least another six months of
services before JN could possibly be returned to her care.

         On this record, given respondent’s failure to show meaningful progress during times
when she was not incarcerated, the trial court did not clearly err by concluding that respondent’s
drug addiction continued to pose a barrier to reunification. Given the length of time that JN had
spent in foster care, respondent’s failure to comply with her case service plan, and respondent’s
failure to demonstrate that she could remain sober outside of a prison environment, the trial court
also did not clearly err by concluding that there was no reasonable likelihood that respondent
would rectify her lengthy struggle with drug addiction within a reasonable time considering JN’s
age. Cf. In re Williams, 286 Mich App 253, 272; 779 NW2d 286 (2009). Thus, the trial court
did not err by concluding that termination was appropriate under MCL 712A.19b(3)(c)(i). These
same facts also support termination under MCL 712A.19b(3)(g).

        In contrast to this conclusion, respondent argues that she is a good parent, despite her
history of drug addiction, and that the trial court clearly erred by concluding otherwise. We note

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that this Court has indicated that “drug use alone, in the absence of any connection to abuse or
neglect, cannot justify termination solely through operation of the doctrine of anticipatory
neglect.” In re LaFrance Minors, 306 Mich App at 731. However, this is not a case where the
trial court merely speculated that respondent’s drug use might affect her parenting of JN.
Instead, respondent’s parenting decisions—including drug use during her pregnancy, lack of
adequate prenatal care, failure to comply with her case service plan, and the decision to abscond
with JN—make plain that respondent has not provided proper care and custody for JN and that
she will not be able to do so in a reasonable time. On the whole, this is a case where
respondent’s drug addiction has impacted her parenting decisions and her ability to adequately
care for JN, and the trial court did not clearly err by concluding that respondent’s parenting was
at “the poor level.”

        Respondent also argues that the trial court erred by terminating respondent’s parental
rights based on her incarceration without considering whether respondent could provide proper
care and custody for the child by placing JN with his grandparents during her remaining
incarceration. “The mere present inability to personally care for one's children as a result of
incarceration does not constitute grounds for termination.” In re Mason, 486 Mich at 160.
Rather, “Michigan permits an incarcerated parent to achieve proper care and custody through
placement with a relative.” In re Pops, 315 Mich App 590, 595; 890 NW2d 902 (2016).
“[W]hen an incarcerated parent requests placement of his or her children with a relative, as long
as the children are provided adequate care, state interference with such decisions is not
warranted.” Id. (citation, quotation marks, and alteration omitted).

        In this case, contrary to respondent’s contention that she could have provided proper care
and custody through placement with relatives, the record does not support respondent’s assertion
that JN’s grandparents were willing and able to provide adequate care for JN while the case was
pending. In particular, JN was in placement with his maternal grandparents when he was
kidnapped by respondent and his father. Yet, the maternal grandparents waited 12 hours before
alerting anyone about the missing child. This inappropriate delay in reporting that JN had been
taken from the home resulted in JN being removed from his maternal grandparents and placed in
foster care. With regard to JN’s paternal grandparents, early in the case, the paternal
grandparents were also not recommended as a placement because respondent and JN’s father
were living with the paternal grandparents when the house was raided and a crack pipe was
found in the house. Later, the paternal grandparents became licensed foster parents and they
were considered as a placement for JN in February 2017. However, due to health issues, they
declined placement at that time because they wanted to be “grandparents” and they were not sure
about adopting JN. In short, it appears that placement with grandparents was not an option for
providing adequate care for JN, and the trial court did not clearly err in finding that termination
was appropriate under both MCL 712A.19b(3)(c)(i) and (g).

        Finally, respondent argues that termination of her parental rights was not in JN’s best
interests. Specifically, respondent reiterates her assertion that JN should have been placed with
either his maternal or paternal grandparents in lieu of termination.

       “Once a statutory ground for 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). “The trial court must find by a

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preponderance of the evidence that termination is in the best interests of a child.” In re Jones,
316 Mich App 110, 119; 894 NW2d 54 (2016). We review a trial court’s best interests
determination for clear error. Id.

         “In deciding whether termination is in the child’s best interests, 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). “The trial court may also consider 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 701, 714; 846 NW2d 61 (2014), and
“whether it is likely that the child could be returned to her parents’ home within the foreseeable
future, if at all,” In re Jones, 316 Mich App at 120 (quotation marks and citation omitted).
“Moreover, a trial court must explicitly address whether termination is appropriate in light of the
children’s placement with relatives.” In re Schadler, 315 Mich App 406, 411; 890 NW2d 676
(2016) (quotation marks and citation omitted).

        In this case, the trial court found that respondent loved JN, but that the child’s bond to
respondent was “remote” because respondent had been incarcerated the majority of JN’s life and,
when not incarcerated, respondent declined additional parenting time. The trial court found that
respondent’s parenting ability was poor because she made decisions that were not child-centered,
such as kidnapping JN, and she had prioritized her relationship with JN’s father over the child.
The trial court also found that JN needed permanency, stability, and finality because he was
nearly two years old and he had been “in the system,” waiting for respondent to address her
substance abuse issues, since he was born. The trial court also looked at respondent’s
noncompliance with her service plan, and noted respondent’s “long history” of failing to make
progress. With regard to placement with a relative, although respondent argues JN could have
been placed with his grandparents in lieu of termination, as discussed, JN was in foster care and
there were sound reasons why JN was in a non-relative placement. Furthermore, the trial court
explicitly addressed the possibility that the child could be placed with his grandparents in the
future, but the trial court nevertheless found termination appropriate because JN needed
permanency. Cf. In re Schadler, 315 Mich App at 412. Overall, the trial court did not err in
finding that termination was in JN’s best interests.

       Affirmed.



                                                            /s/ Jane E. Markey
                                                            /s/ Joel P. Hoekstra
                                                            /s/ Amy Ronayne Krause




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