                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                   UNPUBLISHED
In re HERBER, Minors.                                              July 19, 2018

                                                                   Nos. 341334; 341362
                                                                   St. Clair Circuit Court
                                                                   Family Division
                                                                   LC No. 15-000280-NA


Before: CAMERON, P.J., and JANSEN and O’CONNELL, JJ.

PER CURIAM.

       In Docket No. 341334, respondent-mother appeals as of right the trial court’s order
terminating her parental rights to the minor children, RMH and CAH, pursuant to MCL
712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (parent unable to
provide proper care or custody), and (j) (reasonable likelihood child will be harmed if returned).
We affirm.

       In Docket No. 341362, respondent-father also appeals as of right the trial court’s order
terminating his parental rights to the minor children, RMH and CAH, pursuant to MCL
712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (parent unable to
provide proper care or custody), and (j) (reasonable likelihood child will be harmed if returned).
We affirm.

                                     I. RELEVANT FACTS

       Respondents’ minor children were removed from their home in 2015, when RMH was
not yet two years old and CAH was a newborn. The minor children were removed due to
respondents’ failure to supervise the children. Additionally, RMH had several developmental
delays and an attachment disorder that made her prone to approach strangers without inhibition.
Respondents struggled with mental health and poor hygiene, and they relied on the mother of
respondent-father for housing.

        After the minor children were removed, respondents found full-time employment and
established their own home. While in foster care, RMH received speech, occupational, and
physical therapy to address her developmental delays. Sadly, in 2016, CAH was diagnosed with
liver cancer and eventually received a liver transplant. As a result, CAH became a medically
fragile child who required a high level of care, including a sanitary living environment because
he was immunosuppressed from post-transplant medications. He was fed through a tube, and
required a regimen of medications.

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       During this time, respondents received individual therapy, parenting classes, in-home
parenting support during parenting time with RMH, and services with Families Together
Building Solutions (FTBS). However, respondents were unable to provide consistent care for
RMH during their parenting time. Respondents had difficulty getting RMH to eat, and
sometimes failed to provide food for her entirely. The service providers offered suggestions,
which respondents sometimes followed successfully, but respondents failed to consistently
maintain progress without being prompted. Respondents never learned to feed CAH and
administer his medications. Although the service providers helped respondents establish
cleaning schedules to keep the home sanitary for CAH, respondents did not consistently comply
with the schedules. Respondents also had difficulty maintaining their own personal hygiene in
accordance with CAH’s needs. Respondents frequently argued with each other over which of
them should attend to the children’s needs.

        Following a termination hearing, the trial court found that clear and convincing evidence
supported terminating respondents’ parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and
(j). Further, the trial court found that petitioner had established by a preponderance of the
evidence that termination was in the best interests of the minor children. Accordingly, the trial
court terminated respondents’ parental rights to the minor children, and these appeals followed.

                                     II. DOCKET NO. 341334

        In Docket No. 341334, respondent-mother argues that the trial court erred by finding that
clear and convincing evidence supported statutory grounds for termination of her parental rights.
Respondent-mother further argues that it was not in the best interest of the minor children to
terminate her parental rights. We disagree.

                                  A. STATUTORY GROUNDS

       We first address respondent-mother’s argument that clear and convincing evidence did
not support termination of her parental rights under MCL 712A.19(b)(3)(c)(i), (g), or (j).

        “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).
A finding of fact is clearly erroneous if, after giving special regard to the trial court’s unique and
special opportunity to observe the witnesses, MCR 2.613(C), we are left with a definite and firm
conviction that a mistake has been made. In re Moss, 301 Mich App 76, 80; 836 NW2d 182
(2013).

        “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). Here, the trial court
found that clear and convincing evidence supported termination of respondent-mother’s parental
rights pursuant to MCL 712A.19b(3)(c)(i) (conditions that lead to adjudication continue to exist),
(g) (failure to provide proper care or custody), and (j) (reasonable likelihood the child will be
harmed if returned to the parent). Respondent-mother contests all three grounds on appeal, and
each is addressed in turn.

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       MCL 712A.19b(3)(c)(i) provides that the trial court may terminate a respondent’s
parental rights if it finds, by clear and convincing evidence, the following:

               (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 lead 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.

This statutory ground exists when the conditions that brought the children into foster care
continue to exist despite “time to make changes and the opportunity to take advantage of a
variety of services.” In re Powers, 244 Mich App 111, 119; 624 NW2d 472 (2000).

        The minor children were removed from respondent-mother’s care due to her
demonstrated poor parenting skills. Respondent-mother failed to supervise RMH, who was an
active, impulsive toddler. She unreasonably slept in too late to establish routines for RMH, and
also failed to maintain adequate hygiene for herself and RMH. Respondent-mother was
dependent on respondent-father’s mother for housing, although her home was cluttered and dirty.
Respondents made some progress with the Families First service, by learning to follow a routine
for RMH’s care, but Families First recommended further in-home services. Removal of RMH
and CAH was recommended after RMH got out of the house through a window and climbed
onto the roof.

        After the minor children were removed, respondent-mother did find independent housing
with respondent-father, as well as full-time employment. However, respondent-mother argues
that her progress was disrupted by CAH’s medical crisis. Four service providers testified that
respondent-mother failed to make consistent progress and required repeated reminders to manage
the children’s needs. Without those reminders, respondent-mother was unable to keep the home
maintained sanitary as required by CAH’s medical needs, or to assist RMH with eating or
controlling her outbursts. Respondent-mother downplays RMH’s eating problems, but petitioner
presented evidence that respondents sometimes failed to provide RMH with any snack or meal
during parenting time. Respondent-mother emphasizes that RMH was not malnourished, but this
was because she was regularly fed in her foster home.

       Likewise, respondent-mother was unprepared for CAH’s arrival home. Respondent-
mother never learned to manage CAH’s feedings through a feeding tube, never learned to
administer CAH’s medications, and never even opened the feeding tube practice equipment they
received. Respondent-mother asserts that her psychiatric medication was only briefly interrupted
for the purpose of making herself available as an organ donor. However, CAH’s transplant
surgery was in September 2016. Respondent-mother went without a medication review from
April 2016 to January 2017. Based on the foregoing, we conclude that clear and convincing
evidence supported termination of respondent-mother’s parental rights under MCL
712A.19b(3)(c)(i).




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         In finding that termination was appropriate under MCL 712A.19b(3)(c)(i), this Court
need not address the trial court’s conclusions regarding termination under MCL 712A.19b(3)(g)
or (j). In re Trejo, 462 Mich at 360. Regardless, we conclude that the trial court did not clearly
err in finding termination of respondent-mother’s parental rights was appropriate on these
grounds. MCL 712A.19b(3)(g) provides that a trial court may terminate a respondent’s parental
rights if the court finds, by clear and convincing evidence, that “[t]he 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.” This Court has held that “[a] parent’s failure to participate in and
benefit from a service plan is evidence that the parent will not be able to provide a child proper
care and custody.” In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014).

        As discussed in relation to termination of respondent-mother’s parental rights under MCL
712A.19b(3)(c)(i), respondent-mother failed to benefit from her treatment plan. That is evidence
enough that she would not be able to provide proper care and custody for RMH and CAH.
White, 303 Mich App at 710. Specifically, respondent-mother never learned to meet CAH’s
level of needs. She never learned to administer his medication or feed him. Respondent-mother
missed opportunities for medical training. She did not use the practice feeding equipment given
to her. When she had the opportunity to stay with CAH in the hospital for three days, she stayed
outside the hospital and arrived too late and left too early to receive medication training.
Respondent-mother also could not maintain personal cleanliness or home cleanliness in
accordance with CAH’s need for a sanitary environment. Additionally, respondent-mother
struggled to parent RMH: respondent-mother was unable to handle RMH’s behavioral issues,
had difficulty providing and getting RMH to eat nutritious meals, and failed to appreciate that
RMH had developmental delays that required therapy. Further, respondent-mother and
respondent-father had difficulty interacting with each other with respect to caring for the minor
children. Accordingly, it cannot be said that the trial court clearly erred by finding that petitioner
had presented clear and convincing evidence to support the termination of respondent’s parental
rights pursuant to MCL 712A.19b(3)(g).

        Finally, MCL 712A.19b(3)(j) provides that the court may terminate a respondent’s
parental rights if the court finds, by clear and convincing evidence, that “[t]here 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.” A parent’s failure to comply with his or her
treatment plan is evidence that a child may be harmed if returned to the parent’s home. White,
303 Mich App at 710-711.

        Again, we conclude that clear and convincing evidence supported termination of
respondent-mother’s parental rights under MCL 712A.19b(3)(j). Both children have critical
special needs that would be neglected in respondent-mother’s care. RMH’s emotional and
developmental needs, and her need for supervision to counter her impulsive tendencies would
likely not be met in respondent-mother’s home. RMH’s progress in therapy would stall without
parents who were attentive to the therapists’ recommendations. CAH would be endangered if he
resided in an unclean home, with caregivers unable to provide his medication and nutrition. The
evidence clearly showed that respondent-mother was unprepared to provide the advanced level
of care he requires. Accordingly, the trial court did not clearly err in finding that the evidence
also supported termination of respondents’ parental rights under MCL 712A.19b(3)(j).

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        We note that respondent-mother argues that petitioner did not address her ability to
address CAH’s medical needs until the February 2017 permanency planning hearing, leaving her
only three months to learn to care for CAH in order to prevent termination of her parental rights.
She argues that petitioner’s abrupt imposition of this requirement constitutes a failure to make
reasonable efforts toward reunification. Petitioner is obligated “to make reasonable efforts to
reunify a family before seeking termination of parental rights.” In re Hicks/Brown, 500 Mich 79,
85-86; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). Whether
petitioner made reasonable efforts to reunify the family before seeking termination is a question
of fact, which we review for clear error. See In re Fried, 266 Mich App 535, 542; 702 NW2d
192 (2005). Failure to make reasonable efforts toward reunification may prevent petitioner from
establishing statutory grounds for termination. In re Newman, 189 Mich App 61, 65-68; 472
NW2d 38 (1991). However, “[w]hile the [petitioner] has a responsibility to expend reasonable
efforts to provide services to secure reunification, there exists a commensurate responsibility on
the part of respondents to participate in the services that are offered.” In re Frey, 297 Mich App
242, 248; 824 NW2d 569 (2012).

       We reject respondent-mother’s contention that petitioner did not address CAH’s medical
needs before February 2017, leaving her with only three months to learn how to care for him.
CAH had transplant surgery in September 2016. Respondent-mother knew or should have
known that CAH would require special care post-transplant. At the permanency planning
hearing on December 5, 2016, the trial court and the parties discussed both respondent-mother’s
and respondent-father’s need for training regarding CAH’s care before they could progress to
unsupervised visitation. CAH’s needs were not a new issue that unexpectedly arose at the
February 21, 2017 permanency planning hearing. Furthermore, respondent-mother did not make
reasonable efforts to learn about CAH’s care. Instead of staying with CAH in the hospital in
March 2017, she and respondent-father only made day visits, arriving after morning medications
and leaving before evening medications. Respondent-mother did not attempt to practice feeding
procedures with the equipment she was given. Under these circumstances, respondent-mother
cannot reasonably assert that she would have learned to care for CAH if petitioner offered further
services and allowed her additional time.

                                     B. BEST INTERESTS

         Respondent-mother challenges the trial court’s best interests determination. We find no
error.

        Whether termination of parental rights is in a child’s best interests must be proven by a
preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). In
considering whether termination of parental rights is in a child’s best interests, a court may
consider a variety of factors. White, 303 Mich App at 713-714. These factors include the
existence of a bond between the child and the parent, the parent’s ability to parent the child, the
child’s need for permanency and stability, the advantages of a foster home over the parent’s
home, the parent’s compliance with his or her service plan, the parent’s visitation history with
the child, the child’s well-being, and the possibility of adoption. Id.

       Petitioner presented ample evidence that respondent-mother failed to prepare herself to
provide ongoing care for either child. She required repeated reminders in order to manage

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visitation with RMH, and to maintain basic cleanliness. Respondent-mother argued with
respondent-father about RMH’s care, instead of following a consistent routine. RMH made
significant progress in speech therapy after her visitation with respondents ceased. After waiting
two years for respondents to rehabilitate themselves, RMH should not be required to wait longer
for permanency.

       Similarly, respondent-mother’s inability to manage basic household and childcare tasks
would severely jeopardize CAH. Given his young age at the time of removal, CAH never
formed a bond with either respondent, so termination would not disrupt his life. Considering
CAH’s medically fragile condition and his need for vigilant care, which respondent-mother was
unprepared to provide, the trial court did not clearly err in finding that termination of respondent-
mother’s parental rights was also in his best interests.

                                    III. DOCKET NO. 341362

        In Docket No. 341362, respondent-father also challenges termination of his parental
rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). Although each argument is addressed in
turn, we cannot conclude any to be meritorious.

                                  A. STATUTORY GROUNDS

        First, respondent-father challenges termination of his parental rights under MCL
712A.19b(3)(c)(i). However, much of the evidence supporting respondent-mother’s termination
under this section applies to respondent-father as well. Respondent-father failed to maintain
personal cleanliness. He failed to consistently provide acceptable care for the children without
repeated reminders. He failed to help maintain the house at an appropriate level for CAH. He
failed to comply with his psychiatric medications. Although respondent-father found full-time
employment, he did not resolve the mental health problems and disorganization that led to the
children’s placement in foster care. Therefore, termination of his parental rights was appropriate
under § 19b(3)(c)(i).

        In finding that termination was appropriate under MCL 712A.19b(3)(c)(i), this Court
need not address the trial court’s conclusions regarding termination under MCL 712A.19b(3)(g)
or (j). Trejo, 462 Mich at 360. Regardless, we conclude that the trial court did not clearly err in
finding termination of respondent-father’s parental rights was appropriate on these grounds.
With respect to termination under MCL 712A.19b(3)(g), respondent-father argues that he was
able to provide proper care for RMH. He states that his problems with maintaining an orderly
parenting time session occurred because RMH perceived respondents as playmates. He states
that these problems would have been resolved if RMH was returned to their care. Petitioner’s
evidence established, however, that respondents distracted RMH during her therapy sessions and
failed to work with her on her speech therapy homework. In the home, respondents argued about
who would prepare the meal or take RMH to the bathroom. Respondent-father had to be
reminded of strategies for getting RMH to sit at the table and focus on eating instead of playing.
Respondent-father tried one time to prepare a meal that respondent-mother could serve to RMH
when she returned home from work, but never tried again. Respondent-father portrays RMH as
a child with no unusual care needs, but this portrayal fails to recognize her developmental delays,
her emotional extremes, and her attraction to strangers. Respondent-father emphasizes that a

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family friend highly rated his parenting abilities, but the service providers and his own mother
testified that he still was not prepared to care for RMH. Regarding CAH, respondent-father did
not make progress toward learning to manage his care. Respondent-father states that any parent
would have had difficulty learning to care for this medically fragile child, but respondent-father’s
lack of effort was unacceptable. Respondent-father failed not only to acquire medical training,
but also to maintain an adequate level of cleanliness.

       With respect to termination under MCL 712A.19b(3)(j), we reiterate that both minor
children have critical special needs that would be neglected in respondent-father’s care. RMH’s
emotional and developmental needs, and her need for supervision to counter her impulsive
tendencies, would likely not be met in respondent-father’s home. RMH’s progress in therapy
would stall without parents who were attentive to the therapists’ recommendations. CAH would
be endangered if he resided in an unclean home, with caregivers unable to provide his
medication and nutrition. The evidence clearly showed that respondents were unprepared to
provide the advanced level of care he requires. Accordingly, the trial court did not clearly err in
finding that the evidence also supported termination of respondents’ parental rights under MCL
712A.19b(3)(j).

                                      B. BEST INTERESTS

         Respondent-father also argues that termination of his parental rights was not in the best
interests of the minor children. We disagree.

       Respondent-father made inconsistent progress at best with regard to RMH’s care.
Although respondent-father emphasizes that RMH’s best interests should be considered
separately from CAH’s because her needs are less demanding, RMH has special needs that
respondent-father was not able to meet. Respondent-father could not remain attentive at her
therapy sessions. He did not work with her on her speech therapy. He argued with respondent-
mother about her care, instead of following a consistent routine. RMH made significant progress
in speech therapy after her visitation with respondents ceased. After waiting two years for
respondents to rehabilitate themselves, RMH should not be required to wait longer for
permanency.

        Further, respondent-father essentially concedes that he failed to learn to care for CAH.
Considering CAH’s medically fragile condition and his need for vigilant care, which neither
respondent was prepared to provide, the trial court did not clearly err in finding that termination
of respondent-father’s parental rights was also in his best interests.

       Affirmed.


                                                             /s/ Thomas C. Cameron
                                                             /s/ Kathleen Jansen
                                                             /s/ Peter D. O’Connell




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