                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                    UNPUBLISHED
In re DOTSON/GRIFFIN, Minors.                                       June 29, 2017

                                                                    No. 334766
                                                                    St. Clair Circuit Court
                                                                    Family Division
                                                                    LC No. 15-000333-NA



In re D. L. DOTSON, Minor.                                          No. 335630
                                                                    St. Clair Circuit Court
                                                                    Family Division
                                                                    LC No. 15-000333-NA


Before: SAWYER, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

        In these consolidated appeals, respondents appeal as of right orders terminating their
parental rights to the minor children. In Docket No. 334766, respondent-mother’s parental rights
to her three children were terminated pursuant to MCL 712A.19b(3)(a)(ii), (c)(i), (c)(ii), (g), and
(j). In Docket No. 335630, respondent-father’s parental rights to his child were terminated
pursuant to MCL 712A.19b(3)(g) and (j). We affirm.

                                 I. FACTUAL BACKGROUND

        In September 2015, the court authorized the initial petition in this matter, which sought
jurisdiction over the minor children. According to the petition, the oldest child was first
removed from respondent-mother’s care in 2007 due to physical neglect. In 2015, respondent-
mother had untreated mental health issues, engaged in assaultive behavior, was reported to be
physically abusive of the children, and was noncompliant with services provided by the state.
Respondent-father had not regularly paid child support for the child, had a prison record, and had
felony drug charges.

       The court assumed jurisdiction over the children and ordered both respondents to comply
with a treatment plan requiring visitation as coordinated by the foster care worker, weekly
contact with the services worker, obtaining and maintaining legal income, obtaining and
maintaining appropriate housing, undergoing random drug/alcohol screens, and participation in
an intensive home-based program to address various issues. Respondent-mother was
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additionally required to participate in a psychological or psychiatric evaluation, follow
recommendations, and engage in counseling. The court conducted review hearings in 2015 and
2016. In July 2016, the court authorized a supplemental petition seeking termination of
respondents’ parental rights based on respondents’ noncompliance with various aspects of their
treatment plans. Following a hearing, the court terminated respondents’ parental rights. These
appeals followed.

                                  II. STANDARD OF REVIEW

        In order to terminate parental rights, the trial court must find that at least one of the
statutory grounds for termination in MCL 712A.19b(3) has been met by clear and convincing
evidence. In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). The trial court’s decision is
reviewed for clear error. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). 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 was made. In re Mason, 486 Mich 142, 152; 782 NW2d 747
(2010).

        Once the petitioner has established a statutory ground for termination by clear and
convincing evidence, the trial court shall order termination of parental rights if the court also
finds that termination of parental rights is in the best interests of the child. MCL 712A.19b(5).
Whether termination of parental rights is in the best interests of the child must be proven by a
preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The
trial court’s decision regarding the child’s best interests is reviewed for clear error. In re Trejo,
462 Mich at 356-357.

                                         III. ANALYSIS

       MCL 712A.19b(3)(a)(ii), (c)(i), (c)(ii), (g), and (j) permits termination of parental rights
under the following circumstances:

               (a) The child has been deserted under any 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.

                                              * * *

               (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 either
       of the following:

              (i) The conditions that led 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.


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               (ii) Other conditions exist that cause the child to come within the court’s
       jurisdiction, the parent has received recommendations to rectify those conditions,
       the conditions have not been rectified by the parent after the parent has received
       notice and a hearing and has been given a reasonable opportunity to rectify the
       conditions, and there is no reasonable likelihood that the conditions will be
       rectified within a reasonable time considering the child’s age.

                                             * * *

               (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.

        In Docket No. 334766, respondent-mother argues that the trial court erred in finding the
statutory grounds established by clear and convincing evidence. We disagree.

       The evidence established that respondent-mother failed to visit the children and maintain
contact with her worker for almost four months. Respondent-mother also failed to follow her
treatment plan during this time. She had no contact with her therapist, services were closed for
noncompliance, and respondent-mother continued to struggle with mental health issues. These
circumstances justified termination under MCL 712A.19b(3)(a)(ii).

        Regarding MCL 712A.19b(3)(c)(i), the conditions that led to the adjudication were
respondent mother’s physical abuse of the oldest child, untreated mental health issues, aggressive
behavior, and noncompliance with services. The evidence established that respondent was
negative and aggressive with her children during visits, and she said things that made them cry.
Respondent neither completed her psychological evaluation nor consistently participated in
counseling, and she failed to follow through with in-home services. According to the worker,
respondent had not completed anything in her treatment plan, and had not made any progress
since the children became court wards.

        Furthermore, respondent-mother failed to provide proper care and custody for her
children when she failed to maintain a suitable home for them; she became homeless for a time
while this case was pending. She also failed to follow through with a treatment plan to ensure
the children would be safe in her care. Respondent’s lack of progress in the time this matter was
pending justified termination under MCL 712A.19b(3)(g). Respondent’s failure to resolve her
issues and participate in a treatment plan designed to ensure her children could be safely returned
to her care also justified termination under MCL 712A.19b(3)(j).




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      For the foregoing reasons, the trial court did not clearly err finding that MCL
712A.19b(3)(a)(ii), (c)(i), (g), and (j) had been established by clear and convincing evidence.1

        The trial court also did not clearly err in concluding that termination of respondent-
mother’s parental rights was in the children’s best interests. In deciding a child’s best interests, a
court may consider the child’s bond to his parent, the parent’s parenting ability, the child’s need
for permanency, stability, and finality, and the suitability of alternative homes. In re White, 303
Mich App 701, 713; 846 NW2d 61 (2014); In re Olive/Metts, 297 Mich App 35, 41-42; 823
NW2d 144 (2012). The trial court should weigh all the evidence available to determine the
child’s best interests. In re White, 303 Mich App at 713.

        In this case, the oldest child was happy in her foster care placement, where she had been
since September 2015. The other children were placed with their father and doing well there,
despite the fact that respondent-mother went missing for months from their lives. As noted,
respondent-mother was negative and aggressive with her children during visits, and she had not
addressed her mental health needs by regular participation in counseling. Respondent-mother
also failed to follow through with other services meant to ensure a safe and stable environment
for her children. The foster care worker felt that termination of respondent-mother’s parental
rights was in the children’s best interests, citing her lack of progress and lack of a strong bond.
A preponderance of evidence established that termination of respondent-mother’s parental rights
was in the children’s best interests and the trial court did not clearly err in its determination.

       In Docket No. 335630, respondent-father contends the trial court clearly erred in finding
the statutory grounds to terminate his parental rights established by clear and convincing
evidence. We disagree.

        Respondent-father first argues the court erred because it terminated his parental rights
simply due to his incarceration. Respondent relies on In re Mason, 486 Mich at 160, which
holds that the mere present inability to personally care for one’s children as a result of
incarceration does not constitute grounds for termination. However, the trial court did not base
termination solely on respondent-father’s current incarceration. The court also cited respondent-
father’s pattern of incarceration and noted that it resulted in his having had little involvement
with his child during her lifetime. There was also evidence respondent-father failed to ever
financially support his child, lacked concrete plans to care for her, and did not attempt to
maintain contact with her prior to or during the pendency of this case . Respondent-father also
had not completed any relevant services while this case was pending. The court considered all of
this evidence, not just respondent-father’s current incarceration, in terminating his parental
rights. Accordingly, respondent-father’s claim in this regard is without merit.




1
  We conclude termination was not warranted under MCL 712A.19b(3)(c)(ii), as it is not
apparent what “other conditions” respondent failed to rectify. However, this was harmless error
because only one statutory ground need be established to support termination of parental rights.
In re Foster, 285 Mich App 630, 633; 776 NW2d 415 (2009).


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        Respondent-father also argues termination was improper because his mother was willing
to care for his child. Under In re Mason, 486 Mich at 161, a parent can provide proper care and
custody of their child by placement with a relative. Although respondent-father’s mother had
expressed interest in caring for the child, there is no indication in the record respondent-father
took any action to pursue this placement. Ultimately, the child entered foster care instead in
September 2015, where she remained while this case was pending.

        Respondent-father also contends that petitioner failed to assist him with services while in
prison. Reasonable reunification efforts must be made to reunite the parent and child before
terminating parental rights. In re Mason, 486 Mich at 152. The foster care worker testified that
she attempted to contact respondent-father in December 2015 to engage him in reunification
services. In March 2016 the worker discovered respondent-father was in prison and sent him
multiple letters, as well as court orders, concerning services and suggestions, and she requested
he contact her about his intention to participate in services. She suggested that he participate in
any appropriate services at the prison and provided her contact information to respondent-father,
along with postage paid envelopes for him to use with each correspondence. She did not,
however, hear back from respondent-father until after the termination petition was filed. The
only program respondent-father participated in was a GED program, because that was all he was
eligible to take until he was closer to his anticipated release.

       The evidence shows the worker attempted to maintain contact with respondent-father and
ensure he participated in services. Respondent-father’s inability to complete relevant services
apparently was due to limitations imposed by the prison, not anything the worker failed to do.
Therefore, respondent-father has not established his claim of a lack of reunification efforts.

        Respondent-father has not shown any clear error in the trial court’s decision to terminate
his parental rights pursuant to MCL 712A.19b(3)(g). Respondent-father’s lack of consistent
involvement with his child, lack of past financial support, lack of any concrete plans for caring
for his child, and failure to complete any aspect of his treatment plan justified termination under
that provision.

        Regarding MCL 712A.19b(3)(j), the foster care worker felt it would be inappropriate for
the child to be raised by respondent-father because it would be in an unstable environment, due
to his pattern of substance abuse and criminal activity. Respondent-father had eight felony
convictions, most of them drug-related, and had previously been incarcerated around 2007 and in
2012. He had never financially supported his child and did not offer any concrete plans for when
he was released from prison. Given this evidence, the trial court did not clearly err in
terminating respondent’s parental rights under MCL 712A.19b(3)(j).

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Deborah A. Servitto
                                                            /s/ Michael J. Riordan



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