            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



                                                                  UNPUBLISHED
                                                                  July 18, 2019
In re TURNER, Minors.

                                                                  No. 345416
                                                                  Oakland Circuit Court
                                                                  Family Division
                                                                  LC No. 2016-839914-NA


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

PER CURIAM.

        Respondent-mother appeals as of right the trial court’s order terminating her parental
rights to her two sons, MT and BT, under MCL 712A.19b(3)(g) and (j).1 We affirm.

                                     I. BACKGROUND

        Before their removal, MT and BT lived with respondent and her live-in boyfriend, David
Glusac. Despite not being the children’s biological father, Glusac had functioned as the
children’s father figure since MT and BT’s infancy. The home, however, was host to multiple
incidents of domestic violence and chronic substance abuse. Three incidents in particular led to
the children’s removal from respondent’s care.

       First, in May 2015, respondent was arrested on a bench warrant for a previous charge of
operating while intoxicated. When officers arrived at the home, respondent fled on foot with BT.
Respondent was highly intoxicated during the incident. Second, in September 2015, respondent
was arrested for domestic violence after she chased Glusac out of the family home with a knife
and damaged several household items. Respondent’s blood alcohol concentration (BAC) at the
time was 0.199. Respondent was offered weekly substance-abuse treatment but continued to


1
  The trial court also terminated the parental rights of the children’s father, with whom the
children have never had any meaningful contact. The children’s father is not a party to this
appeal.



                                              -1-
drink alcohol. Finally, in January 2016, respondent tested positive for alcohol consumption at
her substance-abuse treatment, which constituted a violation of her bond. That night, while the
children were present, respondent was arrested for assault and battery and resisting or obstructing
a police officer. Following this third incident, the children were removed from respondent’s
care.

        The trial court assumed jurisdiction over the children and ordered respondent to comply
with a treatment plan which required her to participate in substance-abuse and counseling
services—including Alcoholics Anonymous—and provide documentation of those services to
petitioner, to complete a parenting class, and to maintain employment. Respondent initially
submitted to an inpatient treatment program but was released from the program after she injured
her knee. Afterwards, respondent received individual therapy through Easter Seals.

         Respondent underwent surgery for her knee injury in late May 2016. A couple weeks
later, respondent suffered a blood clot and was prescribed 60 pills of Oxycodone to manage her
pain. Respondent did not inform the doctor that she had a substance-abuse issue. Two days after
being prescribed the pills, respondent overdosed on Oxycodone. Responding officers reported
that there were no pills left in the Oxycodone bottle and that respondent’s home was in disarray.
Respondent was only partially clothed and officers noticed a white substance around her mouth;
when paramedics attempted to assist respondent, she hit and kicked them. Eventually respondent
was restrained with tie-downs and handcuffs. Between late May and late June 2016, respondent
tested positive for alcohol,2 Hydrocodone, or other opiates at 14 drug screens and failed to attend
19 screens.

        In July 2016, respondent attended a visit with the children and had a black eye.
Respondent reported that Glusac’s former girlfriend had attacked her and the caseworker ended
the visit when respondent tried to talk about the altercation with the children. Respondent
completed a parenting class in August 2016, but did not appear to benefit from it. Indeed, in
September 2016, respondent attended a visit with the children under the apparent influence of
alcohol and cried hysterically about leaving Glusac. Caseworkers implored respondent to refrain
from discussing her relationship with Glusac in front of the children, but respondent kept trying
to discuss the subject with the caseworker. That same month, respondent was arrested for
another incident of domestic violence after she threatened to cut Glusac’s throat. Respondent
was not released from custody until June 2017.

       By early 2017, petitioner had filed a supplemental petition to terminate respondent’s
parental rights to the children. Hearings on the petition were held between March 2017 and July
2018. In July and August 2017, respondent tested positive for cocaine. Jail conversations
between respondent and Glusac revealed that Glusac was also using cocaine on weekends. In
September 2017, respondent and Glusac became engaged while on vacation in Chicago; the
couple married before the conclusion of this case. Respondent had asked petitioner for
permission to take the trip to Chicago, but petitioner denied respondent permission to do so.


2
 Testimony at trial indicated that an alcohol screen is positive only when the subject’s BAC is
greater than 0.08.


                                                -2-
Respondent attended anyway and missed a drug screen. Indeed, missed or positive drug and
alcohol screens remained an issue for respondent through the conclusion of this case. In addition
to the aforementioned screens positive for cocaine use, respondent tested positive for alcohol in
August 2017, November 2017, and February 2018, tested positive for codeine in January 2018,
and failed to appear for screens in October 2017, November 2017, January 2018, and March
2018.

        Respondent denied using alcohol or cocaine—claiming the screens were unreliable3—but
admitted to using codeine cough syrup with a valid prescription; respondent, however, could not
answer why she agreed to take an opiate given her substance-abuse history. By the conclusion of
this case, respondent had become gainfully employed and had health insurance. Because
respondent had health insurance, petitioner informed respondent that she was responsible for
seeking her own therapy. Petitioner encouraged respondent to enter therapy numerous times and
respondent appears to have received case-management services from Easter Seals from July
through September 2017. Respondent, however, never provided verification of these services to
petitioner. Moreover, respondent did not consistently attend Alcoholics Anonymous or
Narcotics Anonymous, instead choosing to address her sobriety through friends. Petitioner
referred respondent for substance-abuse counseling in the spring of 2018, but respondent was
denied services after she informed the provider that she had not used alcohol in more than a year.

        Following the initial removal, petitioner placed the children with a maternal aunt, to
whom MT reported that respondent had previously physically abused him. MT made a similar
revelation to a therapist, claiming that respondent pushed him against a wall. BT told the
therapist that respondent had chased Glusac and MT around the house with a knife.

        Due to scheduling conflicts with the children’s aunt, petitioner moved the children to
non-relative foster care in July 2018. The children’s caseworker reported that, when they were
first placed with the foster mother, the children tended to be aggressive with each other and
lacked basic daily-living skills such as bathing, using utensils, and sitting at a table. The foster
family, however, worked hard to introduce structure to the children’s lives and, by the end of this
case, the children’s behavior had improved. The boys each made their own beds, cleared their
own plates, and completed their homework. BT’s self-esteem had improved and MT was
respecting adults and making friends. The children called their foster mother “mom” and her
partner “dad” and the foster mother was willing to adopt the children.4


3
  There is some evidence that one testing clinic had a history of unreliably reporting missed
screens, but there is no evidence that the clinic’s actual test results were unreliable as related to
the substances at issue in this case.
4
  Despite a Department of Child Welfare Licensing (DWCL) rule preventing foster children from
being placed in homes with fostered adults, two fostered adults with disabilities also lived in the
children’s foster home. Although the rule was overlooked at placement, by the end of the case,
petitioner’s caseworker indicated that she would be applying for a variance so the children could
remain in the home. The trial court opined that, given the children’s bond to the foster family,
DWCL was likely to approve the variance.


                                                 -3-
         The children received therapy throughout this case, but had difficulty making progress
given the uncertainty surrounding their placement. The children’s therapist reported that they
would not begin to make significant therapeutic gains until a permanent decision was made in
this case. The children were bonded to respondent and BT in particular was experiencing guilt
over not being able to prevent respondent’s substance abuse or their removal. Still, however,
when the children were informed about respondent’s June 2017 release, their behavior quickly
deteriorated. Because of respondent’s incarceration and the effect her presence had on the
children, respondent’s last visit with the children was in September 2016. Their therapist
testified that, although terminating respondent’s parental rights would be difficult initially for the
children, eventually the termination would provide the children with the permanency they
needed to adequately address their mental health.

        In January 2018, the trial court found statutory grounds to terminate respondent’s
parental rights to the children under MCL 712A.19b(3)(g) and (j). The trial court concluded that
respondent did not grasp her substance-abuse problem—as indicated by respondent’s failure to
reveal her issues to her knee doctor before receiving opiates for her pain management—and that
respondent’s substance abuse was still an issue. The trial court was especially troubled by the
fact that respondent’s alcohol and drug consumption often resulted in violent outbursts which
repeatedly landed respondent in jail or the hospital and noted the emotional harm respondent had
caused the children.

        Then, in August 2018, the trial court addressed the children’s best interests. The trial
court acknowledged the children’s bond to respondent, but noted that the children also had a
strong bond with their foster family. The trial court noted that the children lacked structure in
respondent’s home and were making significant improvements in their behavior, hygiene, and
social skills with their foster family. The trial court found that respondent was unlikely to
maintain sobriety and that further delaying the conclusion of this case would cause the children
undue stress. Accordingly, the trial court found that termination was in the children’s best
interests. This appeal followed.

                                          II. ANALYSIS

        “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). Once a ground for
termination is established, the trial court must order termination of parental rights if it finds that
termination is in the child’s best interests. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d
144 (2012); MCL 712A.19b(5). “We review for clear error both the court’s decision that a
ground for termination has been proven by clear and convincing evidence and, where
appropriate, the court’s decision regarding the child’s best interest.” In re Trejo, 462 Mich 341,
356-357; 612 NW2d 407 (2000); see also MCR 3.977(K). “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).

       Respondent first argues that statutory grounds did not exist to terminate her parental
rights. As already noted, the trial court found that statutory grounds existed to terminate

                                                 -4-
respondent’s parental rights under MCL 712A.19b(3)(g) and (j), which provide that the trial
court may terminate a parent’s rights in either of the following situations:

               (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.[5]

                                              * * *

               (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 central take-away from this case is that respondent continues to struggle with
substance abuse. When respondent drinks alcohol or consumes opiates (either prescribed or not),
she is unable to stop until she is severely intoxicated. While intoxicated, respondent is
belligerent, violent, and prone to angry outbursts. Respondent’s substance use has traumatized
her children and nearly caused respondent’s death. Respondent has attacked her now-husband
on several occasions and at least one child has reported that respondent physically abused him.
Despite being incarcerated as a result of her substance use and despite not having any contact
with her children since September 2016, respondent was still returning positive drug screens near
the conclusion of this case and had yet to complete substance-abuse treatment. It is apparent that
respondent failed to grasp the severity of the issue as respondent twice failed to inform her
doctors about her addictions before they prescribed her opiates. Accordingly, it is unlikely that
respondent will be able to overcome or manage her addictions within any reasonable time.

        In short, while respondent may have been an adequate parent when sober, respondent’s
substance-abuse prevented her from providing for her children’s needs and rendered her home a
danger to her children’s physical and emotional well-being. The trial court’s finding that
statutory grounds existed to terminate respondent’s parental rights under MCL 712A.19b(3)(g)
and (j) was not erroneous.6



5
  MCL 712A.19b(3)(g) has been amended, effective June 12, 2018, to require the trial court to
inquire into the parent’s financial ability to provide proper care or custody. See 2018 PA 58.
Because the trial court’s statutory-grounds findings were made before the effective date of
amendment (despite issuing its final order following the best-interest hearing after the effective
date of amendment), the new version of MCL 712A.19b(3)(g) is inapplicable to this case. In any
event, respondent’s financial ability to provide for the children was not the reason for
termination; rather, the trial court noted that “the sole issue in this case is [respondent’s]
emotional equilibrium and sobriety.”
6
  Respondent argues that little in this case has changed since the adjudication. We agree, as did
the trial court. Respondent argues that this continuity prevented the trial court from finding clear
and convincing evidence that a statutory ground existed to terminate her parental rights.


                                                -5-
         Respondent also argues that termination was not in her children’s best interests. We
disagree. Respondent claims that the trial court failed to consider that she had “shed herself of
her legal problems and drug-addictive behavior” and failed to consider that she had rebuilt her
relationship with Glusac. Regarding the former, respondent’s recent positive drug screens and
failure to complete substance-abuse treatment belies her assertions of sobriety. As to the latter,
Glusac suffered from his own sobriety issues and, despite his presence in the family home—
which the trial court opined was a largely positive influence in the children’s life—the children
still lacked basic life skills at the time of their removal.

        Respondent is correct that a bond exists between her and the children. Nonetheless,
because of respondent’s failure to address her substance abuse, respondent has not seen the
children since September 2016. Although respondent has undoubtedly sought time with the
children, her presence stressed the children and caused their behavioral issues to return. In
contrast, the children were learning structure, manners, and self-sufficiency with their foster
family. As the trial court noted, the children were bonded with their foster family and called their
foster parents “mom” and “dad.”

       Perhaps most importantly, the children’s therapist opined that the children would not be
able to adequately address the trauma respondent caused them until this case was resolved.
Given that respondent was unlikely to address sufficiently her substance abuse so that she could
provide her children with a safe, appropriate home, we agree with the trial court that
termination—rather than prolonged foster care—was in each child’s best interests.




According to respondent, where the trial court found by a preponderance of the evidence that
statutory grounds existed to assume jurisdiction, it could not then find by clear and convincing
evidence that statutory grounds existed to terminate her parental rights if little changed before the
termination hearing. Respondent’s logic, however, is backward. The clear-and-convincing-
evidence standard is more stringent than the preponderance standard. Accordingly, had the trial
court found that petitioner did not meet the preponderance burden at the initial adjudication, this
finding would have foreclosed petitioner from meeting the more-stringent clear-and-convincing-
evidence burden. That petitioner did prove its case for adjudication, however, has no necessary
effect on the trial court’s clear-and-convincing-evidence ruling. Indeed, petitioner could
simultaneously meet both standards. At adjudication, the trial court was not required to address
the clear-and-convincing-evidence standard; therefore, its preponderance finding does not
indicate that clear and convincing evidence did not exist to terminate respondent’s parental rights
at the initiation of this case.
        Moreover, we note that, although respondent’s behavior has not significantly changed
since adjudication, the passage of time is itself a material change. MCL 712A.19b(3)(g) and (j)
take into account the likelihood that the respondent will be able to provide a safe, appropriate
home for the children in the future. The passage of more than a year without respondent making
any significant strides in her sobriety is evidence that she will not be able to maintain sobriety in
the future.


                                                 -6-
Affirmed.



                  /s/ Amy Ronayne Krause
                  /s/ Patrick M. Meter
                  /s/ Cynthia Diane Stephens




            -7-
