                            STATE OF MICHIGAN

                             COURT OF APPEALS



                                                                   UNPUBLISHED
                                                                   June 2, 2016
In re DAVIS, Minors.

                                                                   No. 328868
                                                                   Wayne Circuit Court
                                                                   Family Division
                                                                   LC No. 12-505907-NA


Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

       Respondent appeals as of right from an order terminating his parental rights to the minor
children pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), (h), and (j). We affirm.

        In March 2012, the initial petition was filed seeking court jurisdiction over the minor
children. According to the petition, the children’s mother had a history of substance abuse and
domestic violence with respondent.1 Further, respondent was involved in an altercation with the
mother’s boyfriend, had a prior conviction for child abuse involving an older child, and was
living in a shelter with the children. Following a trial, the court assumed jurisdiction over the
children and ordered respondent to comply with a treatment plan requiring a substance abuse
assessment, parenting classes, anger management therapy, and psychological and psychiatric
evaluations. Respondent also had to obtain suitable housing and income.

        By December 2012, respondent had suitable housing, and he had progressed to overnight
visits with his children. He had completed his evaluations and parenting classes, was in
counseling, and visits were going well. The children were returned to respondent’s care.
However, in April 2013, a change of placement petition was filed seeking removal of the
children again because respondent was in jail. The children were placed back in foster care for a
second time. Respondent was released from jail in July 2013, continued services, and by
November 2013, the worker recommended returning the children to respondent’s care because
he was complying with his treatment plan, unsupervised visits were going well, he was working,
and he had a home. The children were returned to respondent’s care.



1
    The children’s mother died during these proceedings.



                                                -1-
        However, in January 2014, another petition requesting removal of the children was
authorized. According to the petition, respondent had been jailed for assault and domestic
violence against his girlfriend. The record reflects that respondent attempted to strangle his
girlfriend while the children were in the home. The children were placed in foster care for a
third time. Respondent pleaded guilty to his pending charge. He was sentenced to 36 months of
probation, with the first year spent in jail. He was scheduled to be released after successful
completion of a domestic violence program. However, respondent did not successfully complete
the program, which was a violation of his probation. As a result of the probation violation, he
was sentenced to 29 to 60 months in prison. Subsequently, a termination petition was filed based
on respondent’s pattern of domestic violence, lack of suitable housing and income, failure to
comply with his probation, current incarceration, and criminal history. Following a hearing, the
trial court entered an order terminating respondent’s parental rights.

        In order to terminate parental rights, the trial court must find that at least one of the
statutory grounds for termination in MCL 712A.19b(3) has been met by clear and convincing
evidence. In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).2

       Termination was based on MCL 712A.19b(3)(c)(i), (c)(ii), (g), (h), and (j), which permit
termination of parental rights 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
       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.

                                             * * *




2
  This Court reviews for clear error a trial court’s finding of whether a statutory ground for
termination has been proven by clear and convincing evidence. MCR 3.977(K); In re BZ, 264
Mich App 286, 296; 690 NW2d 505 (2004). “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.” Id. at 296-297.



                                               -2-
               (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.

              (h) The parent is imprisoned for such a period that the child will be
       deprived of a normal home for a period exceeding 2 years, and the parent has not
       provided for the child’s proper care and custody, 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.

        The trial court did not clearly err in finding at least one statutory ground for termination
established by clear and convincing evidence. It had been about three years since the initial
disposition, and respondent failed to resolve his issues with domestic violence and anger
management. Despite his involvement in services to resolve these issues, respondent continued
to engage in violent acts while this case was pending. Most recently, he violently assaulted his
girlfriend, resulting in removal of the children from his care. Then he assaulted a fellow prisoner
while incarcerated. Respondent’s continued domestic violence resulted in the children’s
repeated placements into foster care and subjected them to emotional harm. The worker
involved in this case opined that respondent had not benefited from services and that it could
take a very long time for respondent to be able to parent his children. Given these
circumstances, and the length of time this case was pending, the trial court did not clearly err in
terminating respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j).3

       The trial court also did not clearly err in terminating respondent’s parental rights under
MCL 712A.19b(3)(h). In Mason, 486 Mich 142, 160-161; 782 NW2d 747 (2010), our Supreme
Court explained:

              MCL 712A.19b(3)(h) authorizes termination only if each of three
       conditions is met:

                       The parent is imprisoned for such a period that [1] the child
               will be deprived of a normal home for a period exceeding 2 years,
               and [2] the parent has not provided for the child’s proper care and
               custody, and [3] there is no reasonable expectation that the parent


3
  We do not agree, however, MCL 712A.19b(3)(c)(ii) established. However, given that only one
statutory ground need be established, the error was harmless. See In re Foster, 285 Mich App
630, 633; 776 NW2d 415 (2009).



                                                -3-
               will be able to provide proper care and custody within a reasonable
               time considering the child’s age.

               The combination of the first two criteria—that a parent’s imprisonment
       deprives a child of a normal home for more than two years and the parent has not
       provided for proper care and custody—permits a parent to provide for a child’s
       care and custody although the parent is in prison; he need not personally care for
       the child. The third necessary condition is forward-looking; it asks whether a
       parent “will be able to” provide proper care and custody within a reasonable time.
       Thus, a parent’s past failure to provide care because of his incarceration also is
       not decisive. [quoting MCL 712A.19b(3)(h) (emphasis and brackets in original.]

        In this case, respondent’s earliest release date was May 2016, but his latest release date
was in 2018. As the trial court noted, respondent had several infractions while in prison. In
particular, respondent assaulted a prisoner and he had acquired another misconduct ticket for
being in an unauthorized area. Given this information, the court could reasonably determine that
respondent’s conduct would jeopardize his chances at an early release and that he would be held
until 2018, which was more than two years away. Moreover, respondent had not provided for
the children’s proper care and custody while he was in prison, as his children were in non-
relative foster care. An incarcerated parent may provide proper care and custody in the future by
voluntarily granting legal custody to relatives during a remaining term of incarceration. Id. at
163. Although respondent’s sister testified that she was willing to care for the children at the
hearing, she had not previously come forward to express interest in caring for them. Given these
circumstances, the trial court did not clearly err in terminating respondent’s parental rights under
MCL 712A.19b(3)(h).4

       The trial court also did not clearly err in finding that termination of respondent’s parental
rights was in the children’s best interests.5 In deciding a child’s best interests, a 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 White, 303 Mich App 701, 713; 846 NW2d 61 (2014) (quotation omitted). The trial court
should weigh all the evidence available to determine the child’s best interests. Id. at 713.



4
   Contrary to respondent’s claim, the trial court did not base termination on only his
incarceration. Incarceration alone is not a proper basis for termination. Mason, 486 Mich at 160.
The court’s comments indicated that its ruling was based on respondent’s failure to resolve his
domestic violence issue, not just his current status as a prisoner. Moreover, the fact that
respondent never physically harmed his children in the past did not preclude termination. The
trial court could reasonably conclude that respondent’s unresolved domestic violence/anger
management issues resulted in an inability to provide proper care and custody for his children
and posed a risk to them, justifying termination.
5
  We review the trial court’s decision regarding the children’s best interests for clear error.
Trejo, 462 Mich 341, 356-357; 612 NW2d 341 (2000).



                                                -4-
       There was evidence that respondent lacked a bond with his children. Moreover, the
children were both in good foster homes and had bonded with their families. They had been in
care a lengthy period of time and had already endured two failed reunifications. Despite
numerous services and almost three years, respondent failed to resolve his anger management
and domestic violence issues. Accordingly, the trial court did not clearly err in finding by a
preponderance of the evidence that termination of respondent’s parental rights was in the
children’s best interests.

       Affirmed.



                                                         /s/ Michael F. Gadola
                                                         /s/ Deborah A. Servitto
                                                         /s/ Douglas B. Shapiro




                                             -5-
