                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                      UNPUBLISHED
In re E. N. R. MYERS, Minor.                                          October 23, 2018

                                                                      No. 343229
                                                                      Wayne Circuit Court
                                                                      Family Division
                                                                      LC No. 15-521389-NA


Before: O’BRIEN, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

         Respondent appeals as of right the trial court’s order terminating his parental rights to the
minor child, EM, under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to
exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood that child
will be harmed if returned to parent). We affirm.

       Respondent argues that the trial court clearly erred by finding statutory grounds for
termination. We disagree.

        “To terminate parental rights, a trial court must find by clear and convincing evidence
that at least one statutory ground under MCL 712A.19b(3) has been established.” In re Moss,
301 Mich App 76, 80; 836 NW2d 182 (2013). This Court “review[s] for clear error a trial
court’s finding of whether a statutory ground for termination has been proven by clear and
convincing evidence.” Id.

       The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(j), which
provides a ground for termination if:

               (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.

        EM is a special needs child due to a severe brain injury she suffered at a very young age.
Immediately following her brain injury, EM required extensive surgery to reconstruct her skull,
and in the future will require frequent medical examinations and treatments. This case began
shortly after EM suffered her injury. As part of respondent’s treatment plan, he was required to




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attend EM’s medical appointment, but repeatedly missed them. 1 When respondent did appear at
EM’s appointments, he failed to engage with EM’s doctors and made no attempt to involve
himself in EM’s care by asking questions or discussing EM’s treatment.

        As the case progressed, respondent made little effort to understand how EM’s brain
injury affected her cognitive and physical development. When asked if he would like to
participate in infant mental health treatment with EM, respondent stated that “he understood the
needs of [EM]” and did not require further assistance. Yet the record reflects that respondent did
not, in fact, understand EM’s needs. During parenting-time visits, respondent was observed
dragging EM by the leg, which allowed her head to bump on the ground. When respondent
would set EM down after holding her, he would purposely drop her to the ground when she was
a few inches from the floor. Respondent also commented that EM was lazy for being unable to
sit up on her own, despite that she was physically incapable of doing so. Respondent also stated
that if he dropped EM, she should be able to catch herself. Respondent’s comments reflect, in
our opinion, a failure to understand that EM was physically incapable of caring for herself. Also,
respondent appeared unable to fulfill basic parenting functions when caring for EM; during
parenting-time visits, respondent frequently failed to feed EM or change her diaper, and he had
to be verbally reminded of these basic necessities.

        These shortcomings were despite the services offered to respondent by petitioner.
Although respondent participated in parenting classes and other services geared towards helping
him learn how to parent EM and manage her medical complications, respondent’s actions
throughout this case demonstrate that he did not benefit from those services. While petitioner
had a duty to offer these services, respondent had the commensurate duty to show that he
benefitted from those services. See In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012).
Respondent’s failure to benefit from services evidences that he was not in compliance with his
case service plan. See id. With other parts of respondent’s treatment plan, he not only failed to
benefit from services, but failed to sufficiently participate. In particular, respondent failed to
consistently attend EM’s medical appointments, which likely contributed to his inability to
understand EM’s special needs. “[A] parent’s failure to comply with the terms and conditions of
his or her service plan is evidence that the child will be harmed if returned to the parent’s home.”
In re White, 303 Mich App 701, 711; 846 NW2d 61 (2014).

        Based on the foregoing, we conclude that the trial court did not clearly err by finding by
clear and convincing evidence that termination of respondent’s parental rights was appropriate
under MCL 712A.19b(3)(j). “Having concluded that at least one ground for termination existed,
we need not consider the additional grounds upon which the trial court based its decision.” In re
HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).

       Respondent also challenges whether the trial court erred by finding that termination of
respondent’s parental rights was in EM’s best interests. We disagree.



1
 Respondent missed 27 of 35 scheduled medical appointments with EM between February 1,
2016, and February 21, 2017.


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       “[W]hether termination of parental rights is in the best interests of the child must be
proved by a preponderance of the evidence.” In re Moss, 301 Mich App at 90. Appellate courts
“review for clear error . . . the court’s decision regarding the child’s best interests.” In re Trejo,
462 Mich 341, 356-357; 612 NW2d 407 (2000), superseded by statute on other grounds as
recognized in In re Moss, 301 Mich App at 83.

        The focus at the best-interest stage is on the child, not the parent. In re Moss, 301 Mich
App at 87. The trial court should weigh all the evidence available to it in determining the child’s
best interests, In re Trejo, 462 Mich at 364, and may consider such factors as “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 Olive/Metts, 297 Mich App
35, 41-42; 823 NW2d 144 (2012) (citations omitted). Other considerations include “the parent’s
compliance with his or her case service plan [and] the children’s well-being while in care[.]” In
re White, 303 Mich App at 714.

        Here, the trial court focused on the lack of a bond between respondent and EM, as well as
his inability to parent a special needs child. The trial court observed that “there doesn’t appear to
be much of a bond” between respondent and EM, and that EM is in need of stability and
permanency, which respondent does not appear able to provide. The trial court also based its
decision on respondent’s “lack of appreciation for [EM]’s special needs.” The trial court further
acknowledged that EM’s current placement, which she had been in for most of her life, was
willing to adopt her. This trial court also found that the current placement was meeting all of
EM’s needs and demonstrated an understanding of how to address EM’s special needs. These
findings are all supported by the record, and they support that termination was in EM’s best
interests.

        Respondent contends that the trial court erred by failing to analyze whether termination
was in EM’s best interests in light of EM’s placement with her maternal grandparents. “[T]he
fact that a child is living with relatives when the case proceeds to termination is a factor to be
considered in determining whether termination is in the child’s best interests.” In re Olive/Metts,
297 Mich App at 43, citing In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). This Court
explained in In re Olive/Metts:

       Although the trial court may terminate parental rights in lieu of placement with
       relatives if it finds that termination is in the child’s best interests, In re IEM, 233
       Mich App 438, 453; 592 NW2d 751 (1999), overruled on other grounds by In re
       Morris, 491 Mich 81; 815 NW2d 62 (2012); In re McIntyre, 192 Mich App 47,
       52-53; 480 NW2d 293 (1991), the fact that the children are in the care of a
       relative at the time of the termination hearing is an “explicit factor to consider in
       determining whether termination was in the children’s best interests,” Mason, 486
       Mich at 164. A trial court’s failure to explicitly address whether termination is
       appropriate in light of the children’s placement with relatives renders the factual
       record inadequate to make a best-interest determination and requires reversal.
       Mason, 486 Mich at 163-165; In re Mays, 490 Mich 993, 994 (2012). [In re
       Olive/Metts, 297 Mich App at 35.]

       Here, the trial court did explicitly address that EM was in a relative placement. It stated:

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       There is a great likelihood of [EM] being adopted and even though she is placed
       with relatives right now, those relatives are willing to adopt, they’re willing to
       allow [respondent] to continue to have access and be part of [EM]’s life.

              It is a sad case. Like I said before, it’s with a heavy heart that I do this,
       but I do have to find that it’s in [EM]’s best interest to terminate [respondent]’s
       parental rights at this time.

The trial court’s acknowledgment of EM’s relative placement demonstrates that it was reluctant
to terminate respondent’s parental rights, but nevertheless found that it would be in EM’s best
interests to do so given that EM would likely be adopted by her maternal grandparents and
respondent would remain a part of EM’s life. It is therefore clear that, although EM’s placement
with relatives weighed against termination, the trial court considered this fact and nonetheless
concluded that termination was in EM’s best interests. The trial court did not stray from the
requirements of In re Olive/Metts and In re Mason, and under the circumstances of this case, we
conclude that the trial court did not clearly err by finding by a preponderance of the evidence that
termination was in EM’s best interests.

       Affirmed.

                                                             /s/ Colleen A. O'Brien
                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Karen M. Fort Hood




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