                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                    UNPUBLISHED
In re ALLEN, Minors.                                                August 18, 2015

                                                                    No. 325946
                                                                    Berrien Circuit Court
                                                                    Family Division
                                                                    LC No. 2013-000008-NA


Before: SAWYER, P.J., and M. J. KELLY and SHAPIRO, JJ.

PER CURIAM.

       Respondent-father appeals as of right the trial court order terminating his parental rights
to the two minor children under MCL 712A.19b(3)(g) (failure to provide proper care and
custody) and (3)(j) (reasonable likelihood that the children will be harmed if returned to the
parent’s care).1 We conclude that the trial court erred in finding statutory grounds to terminate
respondent’s parental rights under MCL 712A.19b(3)(j). However, because it did not err in so
finding under MCL 712A.19b(3)(g), and did not err in ruling that termination was in the
children’s best interests, we affirm.2

        These proceedings were initiated in January 2013 based upon allegations of abuse and
neglect on the part of the children’s mother. At the time, mother and respondent were no longer
in a dating relationship, lived in separate residences, and shared joint legal and physical custody
of the children; respondent had physical custody every week from Monday at 10:00 a.m. until
Thursday at 10:00 a.m., with mother having the remainder. On January 18, 2013, while mother
had physical custody of the two children at issue (and two other children she had with a different
father), a homicide occurred in the residence mother was renting. According to the DHS report,
mother’s cousin was shot and killed “execution style” during an argument with another man in
front of mother and the four children. The cousin’s girlfriend was also shot and critically
injured. While mother and the children escaped without harm, when police responded, they
found the home in “deplorable” condition, with dirty laundry and spoiled food throughout the



1
  The children’s mother voluntarily released her parental rights to the children. She is not party
to this appeal.
2
 The trial court denied petitioner’s request to terminate respondent’s parental rights under MCL
712A.19b(3)(h).



                                                -1-
home, fecal matter on the floors, and evidence of drug and alcohol abuse. Mother subsequently
placed the four children with relatives and was incarcerated on a probation violation for testing
positive for cocaine.

       On January 25, 2013, the DHS petitioned the trial court to assume jurisdiction over the
children and remove them from mother’s case. The petitioner named mother, the other father,
and respondent as respondents. The bulk of the allegations concerned mother and the events on
and soon after January 18, 2013. The only allegation pertaining to respondent stated in part that
he had “an extensive criminal history including convictions for possession of marijuana and
reckless driving which involved the father attempting to hit the mother with a vehicle. This
incident occurred in 2012 and one of the children was present at the time of the incident.”

         Nonetheless, the DHS identified respondent’s barriers to reunification as emotional
stability, parenting skills, and substance abuse. Regarding emotional stability, the DHS noted
that respondent suffered from bipolar disorder and schizophrenia but was participating in
counseling services and taking prescribed medications. It further noted that respondent appeared
to be able to care for the children, but wanted respondent to participate in a parenting skills
assessment. With regard to substance abuse, the DHS noted that there was no evidence of
current drug use, but wanted respondent to participate in a substance abuse assessment given his
criminal history. The DHS also noted a secondary concern regarding respondent’s history of
domestic violence with mother. Respondent’s assessing doctor recommended that respondent
continue his counseling, participate in parenting classes, and be randomly drug tested, given that
respondent tested positive for cocaine at the assessment.

        The trial court granted the removal. A combined adjudication trial and dispositional
hearing was held on March 12, 2013. Mother admitted to the allegations in the petition and the
trial court assumed jurisdiction over the children on that basis. Pursuant to the then-applied one-
parent doctrine, see In re Sanders, 495 Mich 394, 407-408; 852 NW2d 524 (2014), the trial court
also subjected respondent to its dispositional authority and ordered him to comply with a case
service plan. The children were ordered to remain in their current placements, although
respondent was allowed liberal and frequent parenting time, to be supervised or unsupervised at
the DHS’s discretion.

        On March 13, 2013, respondent was involved in a domestic violence incident with his
live-in girlfriend, but apparently no charges were filed. On March 19, 2013, he tested positive
for cocaine. At a review hearing held April 2, 2013, the trial court noted that respondent had
made “some small steps toward progress” but refused to return the children to his care.
Respondent’s progress between this hearing and June 24, 2013 was rated as “poor” by the DHS.
He missed every scheduled counseling appointment. He started parenting classes, but missed too
many sessions and did not complete the course. He attended only 17 of 34 scheduled visitations
during this period, even after the DHS modified the parenting time schedule to accommodate
respondent’s concerns. Eight drug tests were conducted during this time period; respondent
tested positive for marijuana all eight times and positive for cocaine seven times. As a result, he
was referred to substance abuse counseling but failed to participate. He also moved out of his
girlfriend’s apartment and failed to obtain permanent housing for himself, living with various
friends and family members. During this period, the two children were placed with their paternal
grandmother.


                                                -2-
        Respondent’s progress between July 2, 2013 and September 6, 2013 was again rated as
“poor.” He was incarcerated for approximately 30 days for possession of a controlled substance.
He continued to not attend counseling and, due to his minimal contact with the DHS, it was
unclear whether he was still taking his prescribed medications. He attended only 5 of 28
scheduled parenting time visits and failed to attend a second parenting class. He failed to
participate in substance abuse counseling despite multiple referrals. Finally, he was reported as
homeless for all intents and purposes. During this time, the children were removed from their
paternal grandmother’s home after she reported being unable to care for them. Respondent did
not identify any other relative placement options.

        On October 9, 2013, respondent tested positive for marijuana and cocaine. On or about
October 24, 2013, he was arrested and incarcerated on multiple felony charges, including felon
in possession of a firearm, MCL 750.224f, third-degree fleeing and eluding, MCL 750.479a(3),
and two counts of resisting and obstructing a police officer, MCL 750.81d(1). He pled guilty as
charged on February 21, 2014 and, on March 17, 2014, was sentenced to incarceration with an
earliest release date of October 24, 2016 and a latest of April 24, 2021. Respondent remained
incarcerated for the rest of these child protective proceedings.

        In January 2014, the children were moved into a new, nonrelative foster home. When
respondent was transferred to prison, he informed his caseworker that the only service available
was substance abuse treatment and that he was on a waiting list for same. The contact between
the caseworker and respondent was extremely limited from this point forward and the DHS could
not determine what services, if any, respondent was receiving.

        On June 27, 2014, the trial court ordered petitioner to proceed with seeking termination
of each of the parent’s parental rights. In September 2014, following the issuance of the
Supreme Court’s opinion in Sanders, 495 Mich 394, petitioner, recognizing that respondent had
never been adjudicated as an unfit parent, filed a supplemental petition requesting the trial court
adjudicate respondent and terminate his parental rights at an “initial” dispositional hearing. The
trial court did so at a hearing held January 6, 2015.

        Respondent argues that the trial court clearly erred in finding that a statutory ground for
exercising jurisdiction was proved.3

       “In Michigan, child protective proceedings comprise two phases: the adjudicative phase
and the dispositional phase.” Sanders, 495 Mich at 404 (citation omitted). “Generally, a court
determines whether it can take jurisdiction over the child in the first place during the adjudicative
phase.” Id. Jurisdiction is established pursuant to MCL 712A.2(b). Id. As relevant to the



3
  We review a trial court’s decision whether to exercise jurisdiction for clear error. In re BZ, 264
Mich App 286, 295; 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.” In re Moss, 301 Mich
App 76, 80; 836 NW2d 182 (2013).



                                                -3-
instant case, that statute provides that a trial court has jurisdiction in proceedings concerning a
child under 18 years of age found within the county:

               (1) Whose parent or other person legally responsible for the care and
       maintenance of the juvenile, when able to do so, neglects or refuses to provide
       proper or necessary support, education, medical, surgical, or other care necessary
       for his or her health or morals, who is subject to a substantial risk of harm to his
       or her mental well-being, who is abandoned by his or her parents, guardian, or
       other custodian, or who is without proper custody or guardianship . . . . [or]

                                                ***

               (2) Whose home or environment, by reason of neglect, cruelty,
       drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent
       adult, or other custodian, is an unfit place for the juvenile to live in. . . .

To exercise jurisdiction over a child, the trial court is required to find that one of these statutory
grounds has been proved by a preponderance of the evidence. BZ, 264 Mich App at 295; MCR
3.977(E)(2). Once jurisdiction has been established, the case moves to the dispositional phase,
where the trial court has broad authority to effectuate orders aimed at protecting the welfare of
the child, including ordering the parent to comply with the DHS service plan and ordering the
termination of the parent’s parental rights. Sanders, 495 Mich at 404, 406-407.

        MCL 712A.2(b)(1) and (2) were both cited by petitioner in the September 2014 amended
petition. At the conclusion of the combined adjudication trial and termination hearing, the trial
court concluded that there was sufficient evidence to adjudicate respondent under both of these
statutory grounds. We find no clear error in that decision. As the trial court correctly found, at
the time the amended petition was filed in September 2014, and still at the January 6, 2015
hearing, respondent was incarcerated, with no chance of being released before October 24, 2016.
More important, even before he was incarcerated, respondent had displayed an inability to
properly care for the children, as shown by his substantial failure to participate in services or
address any of his barriers to reunification, his failure to consistently visit the children, and his
failure to obtain housing. Given this evidence, together with his present incarceration, the trial
court did not clearly err in determining, by a preponderance of the evidence, that as of January 6,
2015, respondent had neglected or refused to provide proper care and custody for the children,
MCL 712A.2(b)(1), or that his drunkenness and criminality rendered his home environment unfit
for the children, MCL 712A.2(b)(2).

        In arguing that the trial court’s jurisdictional decision was erroneous, respondent focuses
on the fact that he requested, sometime during the pendency of these proceedings, that the
children be placed with their paternal grandmother, which respondent relies on as proof of his
ability to provide proper care and custody. At the outset, as respondent readily recognizes, the
children were placed with their paternal grandmother once during these proceedings. That
placement lasted less than two months because the grandmother reported being unable to care for
the children. At the time the children were removed from the grandmother’s home, respondent
could not identify any other relatives for possible placement, so the children were returned to
their previous foster home. While it appears that respondent subsequently made a second request


                                                 -4-
for the children to be placed with their paternal grandmother, a DHS caseworker testified at the
adjudication/termination hearing that this placement was not appropriate because, in part, of the
previous unsuccessful placement and because the DHS had conducted a home study and found
the grandmother’s home to be inappropriate. Based on these facts, there is no support for
respondent’s claim that his request to have the children placed with their paternal grandmother
demonstrated his ability to properly care for the children or his claim that the DHS
inappropriately interfered with his right to direct the care of his children. A parent does not
provide proper care and custody by placing the children with a relative who is unable to properly
care for the children. See Sanders, 495 Mich at 421 (noting that state interference with a
parent’s choice to place his child with relatives is not warranted “[a]s long as the children are
provided adequate care” (emphasis added)); In re Carlene Ward, 104 Mich App 354, 360; 304
NW2d 844 (1981) (holding that a minor is not without proper custody or guardianship if a parent
places the child “in the custody of a relative who properly care[s] for” that child (emphasis
added)).

        Respondent next argues that the trial court clearly erred in finding that a statutory ground
for terminating his parental rights was proved by clear and convincing evidence.4

        The trial court did not clearly err in finding, by clear and convincing evidence, that
termination was warranted under MCL 712A.19b(3)(g). At the time of termination, respondent
could not provide proper care and custody of the children due to his incarceration and the only
relative placement he offered—the children’s paternal grandmother—both stated she could not
care for the children and had her home deemed inappropriate by the DHS. More important than
his incarceration, however, is the fact that for the 10 months prior to that incarceration,
respondent failed to substantially comply with services and, indeed, appeared to regress. He
attended less and less visitations with the children, failed nearly every drug test for which he was
present, ceased attending counseling, and failed to complete parenting classes or enter substance
abuse treatment, despite numerous referrals. Under these facts, the trial court did not clearly err
in finding that statutory grounds to terminate respondent’s parental rights were established under
MCL 712A.19b(3)(g).5




4
   “This Court reviews for clear error the trial court’s ruling that a statutory ground for
termination has been established and its ruling that termination is in the children’s best interests.”
In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). “A finding is clearly erroneous
if, although there is evidence to support it, this Court is left with a definite and firm conviction
that a mistake has been made.” Id.
5
  Respondent’s reliance on In re Mason, 486 Mich 142; 782 NW2d 747 (2010), is unpersuasive.
There, our Supreme Court ruled that, “[t]he mere present inability to personally care for one’s
children as a result of incarceration does not constitute grounds for termination.” Id. at 161.
Here, contrary to respondent’s argument, the trial court did not terminate respondent’s parental
rights solely due to his incarceration. Rather, the court found that respondent had failed to
benefit from the services offered and accordingly terminated his parental rights. Further, in
Mason, the government failed to include the respondent-father in the court proceedings, and the



                                                 -5-
        Because only one statutory ground for termination need be proved, In re Ellis, 294 Mich
App 30, 32; 817 NW2d 111 (2011), we affirm the trial court’s ruling that statutory grounds for
the termination of respondent’s parental rights existed. We note, however, that the trial court
erred in finding that grounds also existed under MCL 712A.19b(3)(j). There is no indication that
the children would be at a risk of harm if returned to respondent’s care. There is no support
anywhere in the record for an assertion that respondent ever harmed the children by act or
omission. While there are allegations of domestic violence regarding respondent, none of the
allegations involve conduct directed toward the children. Indeed, at the outset, the DHS noted
that respondent appeared fully capable of caring for the children. As described above,
termination in this case was not clearly erroneous due to respondent’s failure, for whatever
reason, to substantially comply with the offered services. None of those services, and no further
actions of respondent, suggest that the children were in danger of harm if in his care.
Nonetheless, this error does not require reversal. Id.

        Lastly, respondent argues that the trial court clearly erred in ruling that termination of his
parental rights was in the children’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)
(citations omitted). See 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, and the trial court should consider the entire record in making this determination, In
re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000).

        The record contained sufficient evidence to support the court’s conclusion that
termination of respondent’s parental rights was in the children’s best interests. At the outset, at
the time of the January 6, 2015 termination hearing, the children were 4-1/2 and 3-1/2 years old,
and had been in foster care for approximately two years. They were thus in definite need of
permanency, stability, and finality. In re Olive/Metts, 297 Mich App at 41-42. At the time of
termination, respondent was unable to provide those requirements because he had substantially
failed to participate in services, had not rectified his barriers to reunification, and was
incarcerated on multiple felony charges, with no chance of being released before October 2016.
Moreover, the children were thriving together in their foster home, where they were united with
one of their half-siblings and their needs were being met. The foster parent had expressed an
interest in adopting all of the children. The foster home therefore provided a definite advantage
over respondent’s home. Id. at 42. Finally, while there was minimal evidence regarding
respondent’s bond with the children, we note that respondent inconsistently visited the children
when he was not incarcerated, an action that the caseworker testified had a negative impact on




trial court’s “ultimate decision in the case was replete with clear factual errors and errors of law
that essentially resulted in the termination of respondent’s parental rights solely because of his
incarceration.” Id. Such is not the case here. Respondent was afforded the opportunity to
appear at all hearings from prison. Accordingly, respondent’s case is clearly distinguishable
from that of the respondent in Mason.



                                                 -6-
the children. Accordingly, the trial court’s conclusion that termination of respondent’s parental
rights was in the children’s best interest was not clearly erroneous.

       Affirmed.



                                                           /s/ David H. Sawyer
                                                           /s/ Michael J. Kelly
                                                           /s/ Douglas B. Shapiro




                                               -7-
