                          STATE OF MICHIGAN

                            COURT OF APPEALS


                                                                     UNPUBLISHED
In re HARRIS, Minors.                                                November 20, 2018

                                                                     Nos. 343227
                                                                     Wayne Circuit Court
                                                                     Family Division
                                                                     LC No. 15-519052-NA



In re HARRIS, Minors.                                                No. 343228
                                                                     Wayne Circuit Court
                                                                     Family Division
                                                                     LC No. 15-519052-NA


Before: MURRAY, C.J., and METER and GLEICHER, JJ.

PER CURIAM.

         In these consolidated appeals, respondent-mother and respondent-father appeal as of right
the trial court’s order terminating their parental rights to several minor children pursuant to MCL
712A.19b(3)(c)(i) and (g). We affirm.

        Respondents’ four older children were previously adjudicated temporary court wards in
2015 because of respondent-mother’s substance abuse. Three of these children had tested
positive for exposure to marijuana or cocaine at birth. Respondent-mother and respondent-father
were provided with services. Eventually, the court ordered the children into the custody of
respondent-father only and terminated its jurisdiction over the children. Thereafter, in 2016,
respondents’ fifth child, REH, tested positive for exposure to marijuana and cocaine at birth.
Petitioner again petitioned for jurisdiction, over all five children. Following a bench trial, the
court exercised jurisdiction over REH; its adjudication encompassed both respondent-mother and
respondent-father as respondents. The court did not exercise jurisdiction over the four older
children and allowed them to remain in respondent-father’s custody. Respondents were ordered
to comply with a treatment plan with respect to REH.

       Respondent-mother did not make progress with her treatment-plan requirements. In
2017, petitioner filed a petition for jurisdiction over the four older children based on information
that REH and the four older children were living full time with respondent-mother because of
respondent-father’s lack of a separate home. Following a bench trial, the trial court exercised

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jurisdiction over the children, removed them, and ordered respondent-father to comply with a
treatment plan. Respondent-father did not comply with parenting classes or drug screens.
Respondent-mother completed an inpatient substance-abuse treatment program, but then tested
positive for marijuana after her discharge. Petitioner filed a supplemental petition to terminate
respondents’ parental rights, which the trial court granted following a hearing.

                      I. DOCKET NO. 343227 (RESPONDENT-MOTHER)

        Respondent-mother argues that the trial court erred by finding that petitioner presented
sufficient evidence to establish statutory bases for termination under MCL 712A.19b(3)(c)(i) and
(g), and erred in finding that termination of her parental rights was in the children’s best
interests. In an action to terminate parental rights, the petitioner must prove by clear and
convincing evidence that at least one statutory ground for termination in MCL 712A.19b(3)
exists. MCR 3.977(A)(3) and (H)(3); In re Trejo, 462 Mich 341, 356; 612 NW2d 407 (2000),
abrogated in part by statute on other grounds as stated in In re Moss, 301 Mich App 76; 836
NW2d 182 (2013). The trial court’s decision is reviewed for clear error. MCR 3.977(K); In re
Trejo, 462 Mich at 356. A finding is clearly erroneous when the reviewing court is left with the
firm and definite conviction that a mistake was made. In re JK, 468 Mich 202, 209-210; 661
NW2d 216 (2003). “[T]his Court accords deference to the special opportunity of the trial court
to judge the credibility of the witnesses.” In re Fried, 266 Mich App 535, 541; 702 NW2d 192
(2005); MCR 2.613(C). Once a statutory ground for termination is established, the trial court
shall order termination of parental rights if it finds that termination is in the child’s best interests.
MCL 712A.19b(5). The trial court’s best-interests decision is also reviewed for clear error. In
re Brown/Kindle/Muhammad, 305 Mich App 623, 637; 853 NW2d 459 (2014).

      The trial court terminated respondent-mother’s parental rights pursuant to MCL
712A.19b(3)(c)(i) and (g), which permit termination under the following circumstances:

                (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.

                                                * * *

                (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.

       REH was adjudicated a temporary court ward because of respondent-mother’s
longstanding substance-abuse problem that she failed to rectify. REH was the fourth of
respondent-mother’s children to test positive for substance exposure at birth, and the third child

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to test positive for exposure to cocaine. The children were released from the court’s jurisdiction
in the prior case not because respondent-mother had resolved her substance-abuse issues, but
because the court understood that the children would be residing exclusively with respondent-
father. When petitioner later learned that the children were residing with respondent-mother, it
again sought jurisdiction over the children because respondent-mother’s substance abuse
presented a risk of harm. Respondent-mother did not resolve her substance-abuse problem.
Even after receiving inpatient treatment, she tested positive for marijuana in one screen and
refused to comply with other drug screens. Respondent-mother admitted at the termination
hearing that she would test positive if tested that day. These circumstances establish that
respondent-mother failed to rectify her substance-abuse problem, which was the primary
condition that led to adjudication. In addition, considering the length of time that respondent-
mother had been abusing substances and her unsuccessful efforts at treatment, there was no
reasonable likelihood that she would resolve this problem within a reasonable time. These
circumstances also demonstrate that respondent-mother failed to provide proper care and custody
for the children and that she would remain unable to do so for the foreseeable future.

        The evidence also supports the trial court’s finding that termination of respondent-
mother’s parental rights was in the children’s best interests. Respondent-mother argues that
termination of her parental rights was not justified because the children were in placement with
her mother. In In re Olive/Metts, 297 Mich App 35, 43; 823 NW2d 144 (2012), this Court,
quoting In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010), observed that a child’s “
‘placement with relatives weighs against termination[.]’ ” The trial court specifically addressed
the children’s placement with relatives in its best-interests findings. It found that respondents
were “so far away from being in a --- in a place where they care for the children or be reunited
with the children, that the relative placement factor is just simply outweighed by the children’s
need for protection and safety; by the need for permanency; and stability and finality.” This
determination is supported by the evidence of the longstanding nature of respondent-mother’s
substance-abuse problem and her continued abuse of substances, even after residential treatment.
Respondent-mother’s continued instability signaled that she would not be able to provide a safe
and stable home in the foreseeable future.

        Respondent-mother argues that petitioner, in seeking termination, improperly relied on
evidence that she failed to participate in therapy and parenting classes during the period when
she was receiving residential substance-abuse treatment. Respondent, in essence, argues that she
had to miss certain treatment times because she was in inpatient care. However, respondent-
mother received referrals for these types of services long before the filing of the supplemental
petition for termination and had opportunities to participate in these services when she was not
receiving inpatient treatment. Petitioner sought to terminate respondent-mother’s parental rights,
in part, because of a failure to consistently attend other services over a period of more than a
year.

        Respondent-mother argues that petitioner unfairly refused to take into account her
inpatient substance-abuse treatment and the other programs she did complete during that
treatment as satisfaction of her treatment-plan requirements. However, respondent-mother’s
resumed use of substances after treatment was evidence of her failure to benefit sufficiently from
the inpatient substance program. Respondent-mother also delayed enrolling in an outpatient
program to maintain sobriety following her inpatient treatment. In addition, with regard to the
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classes respondent-mother completed with Mariner’s Inn and the National Council on
Alcoholism and Drug Dependence, the caseworker testified that if respondent-mother provided
documentation of the content of these programs, she would have determined whether they were
satisfactory. Respondent-mother failed to provide her caseworker with the requisite information.

        Respondent-mother also argues that petitioner ignored her negative drug screens from the
Don Bosco Center, but respondent-mother failed to provide petitioner with the results of these
drug screens. Respondent-mother also appears to be arguing that petitioner had a foregone
conclusion, early on, that respondent-mother’s parental rights would be terminated, but the
caseworker testified that she informed respondent-mother that a petition for termination had been
filed, not that termination was definitely going to occur. At any rate, it was the court, not
petitioner, which was to ultimately decide whether to terminate respondent-mother’s parental
rights.

        Respondent-mother argues that services were inadequate because petitioner required her
to complete services without accommodating her lack of transportation. Except in certain
circumstances not applicable here, the Department of Health and Human Services (DHHS) must
make reasonable efforts to reunite the family. MCL 712A.19a(2). “The adequacy of the
petitioner’s efforts to provide services may bear on whether there is sufficient evidence to
terminate a parent’s rights.” In re Rood, 483 Mich 73, 89; 763 NW2d 587 (2009). However, a
respondent also has a responsibility to participate in services offered by the petitioner. In re
Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012). Respondent-mother was required to rely
on public transportation, and the adequacy of those services and petitioner’s efforts to provide
respondent-mother with bus tickets were addressed throughout the case. Ultimately, however,
these concerns were not relevant to the principal issue in the case, which, as noted by the trial
court, was respondent-mother’s failure to benefit from substance-abuse treatment. The trial court
did not terminate respondent-mother’s parental rights because she did not attend a parenting
class at an inaccessible location, but because she failed to resolve her substance-abuse problem,
and her continued use of substances placed the children at risk of harm. Respondent-mother’s
assertion that petitioner thwarted her reunification efforts is without merit.

        Moreover, respondent-mother’s general complaint that petitioner sabotaged her
rehabilitation in order to accomplish an agenda of permanently placing the four older children
with respondent-mother’s mother has no support in the record. Indeed, respondent-mother never
made this allegation in the trial court. There is no basis for concluding that any of petitioner’s
workers had a personal motive or agenda to separate respondent-mother from her children.

                     II. DOCKET NO. 343228 (RESPONDENT-FATHER)

                     A. REASONABLE EFFORTS AT REUNIFICATION

        Respondent-father initially argues that the trial court erred by finding that petitioner made
reasonable efforts to reunify him with his children. He contends that he was not afforded
sufficient time to complete his treatment plan. Respondent-father did not challenge the adequacy
of the reunification services in the trial court, leaving this issue unpreserved. In re Utrera, 281
Mich App 1, 8; 761 NW2d 253 (2008). Unpreserved issues are reviewed for plain error affecting
the party’s substantial rights. Id. at 8-9.

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        At the time of the termination hearing, respondent-father had refused a drug screen. He
would not enroll in a parenting class that met after his work because he was too tired to attend,
and he did not adequately communicate with his caseworker to find an alternative. He had not
visited his children for two months. Respondent-father was uncooperative with his caseworker
and failed to provide sufficient proof of employment. A respondent has a responsibility to
participate in services offered by the petitioner. In re Frey, 297 Mich App at 248. Respondent-
father’s complaint that he was not given enough time to complete his treatment plan is without
merit because he had not even started. Respondent-father thus fails to establish any plain error.

                                  B. STATUTORY GROUNDS

       Respondent-father next argues that the evidence did not support termination of his
parental rights under MCL 712A.19b(3)(c)(i) and (g). We disagree.

        Respondent stated that he lived with an aunt, but he did not verify this information for
DHHS; the caseworker testified at the termination hearing that she just learned of this alleged
living situation that day. He also did not cooperate with drug screening and admitted that he
used marijuana. He did not offer adequate proof of his income. He failed to visit his children.
Moreover, respondent-father’s hostile and defeatist attitude toward services established that there
was no reasonable expectation that he would be able to resolve his deficiencies within a
reasonable time. The trial court did not clearly err by finding that termination was justified
under § 19b(3)(g).

         Respondent-father argues that termination was premature under § 19b(3)(c)(i) with
respect to the four oldest children because fewer than 182 days had elapsed between the date the
initial dispositional order was entered and the date the supplemental petition was filed. MCL
712A.19b(3)(c)(i) authorizes termination of parental rights, in relevant part, if “[t]he 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 . . . [t]he conditions that led to the adjudication continue to exist . . . .” (Emphasis added.)
The initial dispositional order for the four older children was entered on June 30, 2017, and the
supplemental petition to terminate respondent-father’s parental rights was filed 151 days later, on
November 28, 2017. However, the period between the initial dispositional order and the date of
the actual termination order in February 2018 was over 200 days. The trial court does not
“find[]” by clear and convincing evidence that conditions continue to exist, see MCL
712A.19b(3)(c)(i), until it actually terminates parental rights. Accordingly, respondent-father’s
argument about timing is without merit.

       Respondent-father’s children were removed from his care because he failed to provide
them with a safe home separate from respondent-mother, where they were exposed to substance
abuse. Respondent-father provided only unverified information regarding his home with his
aunt, while at the same time refusing to regularly visit the children or otherwise participate in
services. The evidence supported termination of respondent-father’s parental rights under
§ 19b(3)(c)(i).




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                                      C. BEST INTERESTS

        Respondent-father also argues that termination of his parental rights was not in the
children’s best interests. We again disagree. Although respondent-father correctly asserts that
there was no evidence that he harmed the children, or even that the children suffered harm while
in his custody, petitioner established that respondent-father had returned to the pre-2015 “status
quo” in which the children lived full time with respondent-mother. The children had originally
been released to respondent-father’s custody because respondent-father, but not respondent-
mother, had satisfied the requirements of the treatment plan. By 2017, however, respondent-
father had brought them to live with respondent-mother, despite knowing that her continued drug
use compromised her ability to care for the children. Respondent-father did not establish a
verified, safe home apart from respondent-mother. He failed to make efforts to resume custody
of the children, displayed a hostile attitude toward the workers, and maintained an apathetic
attitude about rehabilitative services. He did not make the children a priority and, at the time of
the termination hearing, he had not visited his children for two months. In view of these
circumstances, the trial court did not clearly err by finding that termination of respondent-
father’s parental rights was in the children’s best interests.

                                       D. JURISDICTION

        Respondent-father also argues that the trial court erred by finding that petitioner
presented sufficient evidence to establish a statutory basis for jurisdiction over the children. This
issue is not properly before this Court. A respondent in a child-protective proceeding cannot
collaterally attack the trial court’s exercise of jurisdiction in an appeal from a later order
terminating the respondent’s parental rights, In re Hatcher, 443 Mich 426, 444; 505 NW2d 834
(1993); In re Bechard, 211 Mich App 155, 159-160; 535 NW2d 220 (1995), but this is precisely
what respondent-father is attempting to do. There is no basis for reversal.

       Affirmed.



                                                              /s/ Christopher M. Murray
                                                              /s/ Patrick M. Meter




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