                           STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                   UNPUBLISHED
In re D. J. LONG, Minor.                                           December 15, 2016

                                                                   No. 331908
                                                                   Wayne Circuit Court
                                                                   Family Division
                                                                   LC No. 15-520271-NA


Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ.

PER CURIAM.

        The circuit court terminated respondent-father’s parental rights to his 10-year-old son
after years of abandonment. Even within these proceedings, respondent initially expressed no
desire to take custody of his son, and only belatedly fought the termination petition. He now
challenges the statutory grounds supporting termination and argues that termination of his
parental rights was not in his son’s best interests. We affirm.

                                      I. BACKGROUND

       DL was born on December 31, 2005, to respondent and his then-girlfriend, KL. It
appears that respondent never lived with mother or child. Just before the child’s third birthday,
the pair voluntarily placed DL in the care of a nonrelative and named her the child’s legal
guardian. DL lived in that home until January 2014. In the care of this guardian, DL was
allegedly sexually abused by two separate men. Despite knowledge of the sexual abuse as early
as June 2013, KL did not seek termination of the guardianship and return of her son until January
2014. DL then moved with his mother to Florida. DL subsequently acted out sexually against a
younger sibling and KL asked respondent’s sister and her husband to take custody of him. DL’s
aunt and uncle agreed and DL remains in their care.

        In June 2015, DL sexually abused a neighborhood child. Child Protective Services (CPS)
became involved. At that time, DL reported his sexual abuse at the hands of his former
guardian’s neighbor and then boyfriend. CPS and his current guardians enacted a safety plan to
protect other children in DL’s sphere. DL required constant monitoring at home and school and
in the community.

        Department of Health and Human Services (DHHS) caseworker Monique Ferranto
interviewed respondent shortly after the CPS report. Respondent indicated that over the years
“he had minimal contact with [DL].” Ferranto testified that respondent reported only three
meetings with the child during his life. Ferranto inquired whether respondent could take custody

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of his child but “he indicated that he was unable to care for [DL] financially and he was unable –
because he was unemployed. And that he could not afford to care for [DL].”

        Respondent claimed ignorance of DL’s sexual abuse until informed by Ferranto. Shortly
after the telephone interview, a courtesy worker visited respondent’s Jackson home to evaluate it
for placement. The home was appropriate for the three children who already lived there.
However, the home lacked sufficient bedrooms to give DL his own room as required under his
safety plan. And respondent reported “that he did not want to put those children at risk [of
sexual abuse] by taking in [DL].”

       During a subsequent family team meeting, respondent admitted that he voluntarily
released his parental rights to another son in 2010 after the DHHS became involved. He denied
that services were offered but Ferranto showed him documentation disproving his claim.
Respondent also had been diagnosed with bipolar disorder and manic depression as a child, but
no longer received treatment. Respondent carried an extensive criminal history for robbery, drug
possession, retail fraud, and failure to support DL. He still owed more than $25,000 in back
support. Although respondent admitted abuse of marijuana in the past, he contended that he no
longer used the drug.

        Respondent contradicted Ferranto’s version of events. He asserted that his home actually
had four bedrooms and therefore arrangements could be made for DL to have his own room. He
insisted that he was willing to implement any required safety plans and assist with DL’s
treatment. By the time of the February 2016 termination hearing, respondent had been employed
fulltime for approximately six weeks. As a result, he claimed he could now financially support
DL. Despite that, respondent conceded that he had provided no financial support for his sister’s
care of DL.

        Respondent also challenged Ferranto’s testimony about the extent of his contact with DL
over the years. Respondent claimed that he often spent the night at KL’s house to spend time
with DL during the first three years of his life. He described visits with DL while DL lived in his
first guardianship. The guardian often denied respondent visitation but he did not seek
termination of the guardianship because he was still able to see DL when KL returned to
Michigan and exercised parenting time. Moreover, respondent claimed, “at that point in time I
wasn’t stable enough to take on another responsibility” in addition to the other children he was
raising. Respondent admitted that during one interval he did not see DL for “a couple years.”
Since DL’s return to Michigan to live with respondent’s sister, respondent had been allowed
three visits with the child, twice for unsupervised weekend visits. Respondent could not count
the number of times he had seen DL during his life “because it’s been a whole bunch of times.”
However, when CPS intervened, his visitation rights were suspended.

        Ultimately, respondent asked for custody of his son or in the alternative, that his rights be
retained while DL remained in the home of respondent’s sister. Respondent’s sister took the
stand and testified that she preferred that respondent’s rights be terminated because the child was
happy in his placement and did not want contact with his father.

       The court terminated respondent’s rights. Respondent now appeals.


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                                  II. STATUTORY GROUNDS

        Pursuant to MCL 712A.19b(3), a circuit court “may terminate a parent’s parental rights
to a child if the court finds, by clear and convincing evidence” that at least one statutory ground
has been proven. The petitioner bears the burden of proving that ground. MCR 3.977(A)(3); In
re Trejo, 462 Mich 341, 350; 612 NW2d 407 (2000). If the court seeks termination at the initial
disposition, as in this case, legally admissible evidence must underlie the termination decision.
MCR 3.977(E)(2), (3). We review a circuit court’s factual finding that a statutory termination
ground has been established for clear error. In re Rood, 483 Mich 73, 90-91; 763 NW2d 587
(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 Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013)
(quotation marks and citation omitted). “Clear error signifies a decision that strikes us as more
than just maybe or probably wrong.” In re Williams, 286 Mich App 253, 271; 779 NW2d 286
(2009).

         Respondent first contends that the circuit court could not terminate his parental rights
because the DHHS did not “give[] [him] the opportunity to plan for his child.” “Generally, when
a child is removed from the parents’ custody, the petitioner is required to make reasonable efforts
to rectify the conditions that caused the child’s removal by adopting a service plan.” In re HRC,
286 Mich App 444, 462; 781 NW2d 105 (2009). The DHHS is not required to make such
efforts, however, if it seeks termination at the initial disposition. Id. at 463. This was the
situation before the court.

        Respondent also contends that the DHHS created the ground for termination—
desertion—by denying him parenting time during these proceedings. “[W]hen the state
deliberately takes action with the purpose of ‘virtually assur[ing] the creation of a ground for
termination of parental rights,’ and then proceeds to seek termination on that very ground, the
state violates the due process rights of the parent.” In re B & J, 279 Mich App 12, 20; 756
NW2d 234 (2008). In B & J, 279 Mich App at 15, 19, the DHHS reported the respondent-
parents as illegal aliens and secured their deportation, thereby forcing the respondents to desert
their children, who were American citizens and remained in this country. Here, neither the
DHHS nor the court relied upon the lack of contact during these proceedings to terminate
respondent’s parental rights. They focused on respondent’s pre-petition conduct. Accordingly,
respondent can demonstrate no reversible error.

       Respondent further challenges the factual support for the court’s termination decision.
The circuit court terminated respondent’s parental rights pursuant to the following factors:

       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:

        (a) The child has been deserted under either of the following circumstances:

                                              * * *

            (ii) The child’s parent has deserted the child for 91 or more days and has not
       sought custody of the child during that period.
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       (b) The child or a sibling of the child has suffered physical injury or physical or
       sexual abuse under 1 or more of the following circumstances:

                                               * * *

             (ii) The parent who had the opportunity to prevent the physical injury or
       physical or sexual abuse failed to do so and the court finds that there is a
       reasonable likelihood that the child will suffer injury or abuse in the foreseeable
       future if placed in the parent’s home.

                                               * * *

       (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.

                                               * * *

       (l) The parent’s rights to another child were terminated as a result of proceedings
       under section 2(b) of this chapter or a similar law of another state. [MCL
       712A.19b(3).]

        We initially note that the circuit court improperly relied upon the 2010 termination of
respondent’s parental rights to another child to support termination in this case under factor (l).
In In re Gach, ___ Mich App ___; ___ NW2d ___ (Docket No. 328714, issued April 19, 2016),
slip op at 7, this Court declared that subsection (l) “provides constitutionally deficient protection
to a respondent’s due process interest in raising his or her children” and thereby invalidated
termination on this ground.

        Termination was also insupportable under factor (b)(ii), failure to protect from sexual
abuse. We do not doubt that DL has faced abuse. However, the DHHS was required to present
legally admissible evidence to support this ground. The only evidence at the termination hearing
that DL had been abused was hearsay reports from the caseworker. We also find no record
evidence specifically addressing how DL could be harmed if placed in respondent’s care. As
such, supporting termination under factor (j) was questionable.

       But the DHHS provided clear and convincing, legally admissible evidence to support
termination under factor (a)(ii). Termination is warranted under this ground when the parent has
deserted his or her child for 91 days without seeking custody. Respondent admitted at the
hearing that he once went “a couple years” without seeing DL. For most of DL’s life,
respondent was content to see the child when KL made special efforts to facilitate visits.

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Respondent did not seek custody of DL, and indeed indicated that he did not desire custody of
his son, until midway through the current proceedings. Accordingly, termination based on
desertion was adequately supported. See In re TM (After Remand), 245 Mich App 181, 193-194;
628 NW2d 570 (2001) (termination supported where the respondent “failed to make any
substantial effort to communicate with [the child] or obtain assistance in regaining custody of her
for a period well beyond the statutory period”), overruled in part on other grounds by In re
Morris, 491 Mich 81, 115-121; 815 NW2d 62 (2012); In re Mayfield, 198 Mich App 226, 230,
235; 497 NW2d 578 (1993) (termination supported where the respondent did not seek custody of
his child for five years and had not seen the child for two).

        Similarly, clear and convincing legally admissible evidence established that respondent
had not provided proper care and custody for his child and would be unable to do so within a
reasonable time, supporting termination under factor (g). Respondent had never provided
financially for his child and owed more than $25,000 in child support arrearages. When KL
decided to place then two-year-old DL in a nonrelative guardianship, respondent made no
attempt to take custody of his child or find a more suitable relative placement. For six years, the
guardian denied respondent visits with his son and yet respondent simply waited for KL to return
to Michigan to exercise parenting time with her. Although respondent finally secured
employment during these proceedings, he had not demonstrated an ongoing financial ability to
provide for his son. Moreover, respondent demonstrated a lack of awareness of DL’s special
needs and the work involved in protecting other children from sexual predation by DL.
Accordingly, we discern no error in the circuit court’s termination of respondent’s parental
rights.

                                     III. BEST INTERESTS

        Finally, respondent contends that termination of his parental rights was not in DL’s best
interests. “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), citing MCL 712A.19b(5).
“[W]hether termination of parental rights is in the best interests of the child must be proven by a
preponderance of the evidence.” Moss, 301 Mich App at 90. The lower court should weigh all
the evidence available to it in determining the child’s best interests. Trejo, 462 Mich at 356-357.
Relevant factors in this consideration include “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.” 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).

         Even accepting respondent’s testimony as true and accurate, respondent has had very
little contact with DL. Respondent made no effort to create a bond with the child and as a result,
DL barely knows him. In contrast, DL has done well in his current placement with his paternal
aunt and uncle and these relatives intend to adopt him. DL’s aunt and uncle took him in despite
DL’s behaviors of sexually acting out. They have implemented a safety protocol in the home
and are actively involved in DL’s counseling and other treatment. DL is old enough to

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understand that certain adults are committed to his wellbeing while others have shown little
consideration. As such, DL has expressed his desire to remain with his aunt and have no contact
with his father. The evidence therefore preponderated in favor of termination and the circuit
court committed no error.

       We affirm.



                                                          /s/ Kirsten Frank Kelly
                                                          /s/ Elizabeth L. Gleicher
                                                          /s/ Douglas B. Shapiro




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