                          STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re SADVARI, Minors.                                               April 19, 2018

                                                                     No. 339464
                                                                     Kent Circuit Court
                                                                     Family Division
                                                                     LC Nos. 15-053899-NA;
                                                                     15-053900-NA; 15-053901-NA


Before: GLEICHER, P.J., and M. J. KELLY and CAMERON, JJ.

PER CURIAM.

       Respondent-father appeals of right the trial court order terminating his parental rights to
the minor children under MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.

                                       I. BACKGROUND

        The Department of Health and Human Services (DHHS) submitted an initial petition for
custody regarding the three minor children in December 2015. The petition alleged that
respondent had a criminal history, including three operating a motor vehicle while intoxicated
(OWI) offenses and a minor in possession of alcohol offense, and he was diagnosed with
anxiety, depression, and bipolar disorder. The petition also alleged mother attempted suicide in
the home while respondent and the children were present, and mother and respondent attempted
to start a fire in the fireplace while they were intoxicated and caring for the children, but they
failed to open the fireplace flue and the home filled with smoke, which prompted respondent to
flee the scene. Additionally, the petition alleged that in December 2015, while respondent and
mother were in a vehicle with the three children, respondent punched mother twice in the face
and fled the scene, which resulted in the mother’s arrest for drunk driving and child
endangerment.

        Initially, respondent and mother received a treatment plan, and reunification was the goal.
The children were first placed in a non-relative foster home, but they were eventually placed
with the paternal grandmother for the pendency of the proceedings. The trial court held
permanency planning hearings every three months and, approximately 14 months after the initial
petition was filed, DHHS filed a termination petition in February 2017 on the trial court’s order.
On June 14, 2017, the trial court held a termination hearing. At the close of the hearing, the trial
court concluded that there were statutory grounds to terminate respondent’s parental rights under
MCL 712A.19b(3)(c)(i), (g), and (j), and that termination was in the best interests of each child.


                                                -1-
        On appeal, respondent does not challenge the statutory grounds for termination. As such,
we may presume that the trial court did not clearly err in finding that the unchallenged statutory
grounds were established by clear and convincing evidence. In re JS & SM, 231 Mich App 92,
98-99; 585 NW2d 326 (1998), overruled in part on other grounds In re Trejo, 462 Mich 341; 612
NW2d 407 (2000). Rather, respondent argues that the trial court (1) failed to consider a possible
guardianship, (2) should have placed the children in a guardianship with their paternal
grandmother, (3) relied on evidence outside of the record to terminate parental rights, and (4)
clearly erred in finding that termination was in the children’s best interests.

                                  II. STANDARD OF REVIEW

       This Court reviews for clear error the trial court’s ultimate determination that termination
of parental rights is in the best interests of the child. In re HRC, 286 Mich App 444, 459; 781
NW2d 105 (2009). “A finding is ‘clearly erroneous’ if, although there is evidence to support it,
we are left with a definite and firm conviction that a mistake has been made.” Id., quoting In re
JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003).

                                         III. ANALYSIS

        Once a statutory ground for termination of parental rights is established, the trial court
must order termination if it finds by a preponderance of the evidence “that termination of
parental rights is in the child’s best interests.” MCL 712A.19b(5); In re Moss, 301 Mich App 76,
83; 836 NW2d 182 (2013). In this context, we note that “the interests of the child and the parent
diverge once the petitioner proves parental unfitness.” In re Moss, 301 Mich App at 87.
Therefore, the interests of the children, not the parent, are the focus of the best-interest stage of
child protective proceedings. Id. at 87-88.

               The trial court should weigh all the evidence available to determine the
       children’s best interests. To determine whether termination of parental rights is in
       a child’s best interests, the court should consider a wide variety of factors that
       may include 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. The trial court may also consider a parent’s history
       of domestic violence, the parent’s compliance with his or her case service plan,
       the parent’s visitation history with the child, the [child’s] well-being while in care,
       and the possibility of adoption. [In re White, 303 Mich App 701, 713-714; 846
       NW2d 61 (2014) (quotation marks and citations omitted).]

Courts should also look at a parent’s substance abuse history, In re AH, 245 Mich App 77, 89;
627 NW2d 33 (2011), and the length of time the children have been in care, In re
Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015). Placement with
relatives, however, weighs against termination, and the trial court must address this factor
explicitly. In re Olive/Metts, 297 Mich App 35, 43; 297 NW2d 144 (2012).




                                                -2-
       Respondent first argues that the trial court erred because it did not properly consider a
guardianship at the permanency planning or termination hearings. We disagree.

       The purpose of a guardianship is to avoid the termination of parental rights, In re Mason,
486 Mich 142, 168-169; 782 NW2d 747 (2010), and it allows a child to keep a relationship with
a parent when placement with the parent is not yet possible, In re TK, 306 Mich App 698, 705;
859 NW2d 208 (2014). In MCL 712A.19a(4), the Legislature expressed its intent that
permanency planning must include consideration of guardianship and permanent placement
“with a fit and willing relative.” “The statute authorizing the guardianship contemplates the
appointment of a guardian only after the permanency planning hearing.” In re TK, 306 Mich
App at 707. MCL 712A.19a(4) states, in relevant part:

              At or before each permanency planning hearing, the court shall determine
       whether the agency has made reasonable efforts to finalize the permanency plan.
       At the hearing, the court shall determine whether and, if applicable, when the
       following must occur:

       (a) The child may be returned to the parent, guardian, or legal custodian.

       (b) A petition to terminate parental rights should be filed.

       (c) The child may be placed in a legal guardianship.

       (d) The child may be permanently placed with a fit and willing relative. [MCL
       712A.19a(4)(a)-(d).]

Further, MCL 712A.19a(8)(a) “expressly establishes that, although grounds allowing the
initiation of termination proceedings are present, initiation of termination proceedings is not
required when the children are ‘being cared for by relatives.’ ” In re Mason, 486 Mich at 164.
Subsection (8)(a) provides:

                If the court determines at a permanency planning hearing that a child
       should not be returned to his or her parent, the court may order the agency to
       initiate proceedings to terminate parental rights. Except as otherwise provided in
       this subsection, if the child has been in foster care under the responsibility of the
       state for 15 of the most recent 22 months, the court shall order the agency to
       initiate proceedings to terminate parental rights. The court is not required to order
       the agency to initiate proceedings to terminate parental rights if 1 or more of the
       following apply:

               (a) The child is being cared for by relatives. [MCL 712A.19a(8)(a).]

“[T]he appointment of a guardian is only appropriate after the court has made a finding that the
child cannot be safely returned to the home, yet initiating termination of parental rights is clearly
not in the child’s best interests.” In re TK, 306 Mich App at 707; see also MCL 712A.19a(7).
After a trial court makes these two determinations, it must then “find that it is in the child’s best



                                                -3-
interests to appoint a guardian.” In re TK, 306 Mich App at 707; see MCL 712.19a(7)(c) and
MCR 3.979(A).

       Respondent argues that the trial court and the DHHS improperly operated under an
“unwritten understanding” that the children could not be cared for by their paternal grandmother
under a guardianship because they were too young to benefit from a guardianship. According to
respondent, this was the trial court’s only rationale, and it never fully analyzed whether a
guardianship would have been in the children’s best interests.

        First and foremost, the trial court did consider the possibility of a guardianship with their
paternal grandmother at the conclusion of each permanency planning hearing. At the close of
each of those hearings, the trial court questioned the witnesses and inquired into the possibility of
a guardianship with the paternal grandmother. The record does indicate that part of the trial
court’s rationale against the guardianship was based on testimony from the caseworker who
indicated that the DHHS believed the children were too young to benefit from guardianship.
This was a proper consideration. Regardless, the trial court never foreclosed the possibility of a
guardianship until it finally terminated respondent’s parental rights. At the March 24, 2017
permanency planning hearing, the trial court determined that the children could not be safely
returned to the home, and it ordered the DHHS to file a termination petition. Because the trial
court ordered the filing of the termination petition, it was not required to analyze whether a
guardianship was in the children’s best interests. A trial court may terminate a parent’s rights
when doing so is in their best interests—even if the children are placed with relatives and
guardianship is an option. In re Gonzales/Martinez, 310 Mich App 426, 435; 871 NW2d 868
(2015). At the joint permanency planning and termination hearing, the trial court again
addressed the relative placement and the possibility of a guardianship, but it aptly noted several
problems and concerns regarding continued placement with paternal grandmother. In fact, the
DHHS had filed a petition just before the termination hearing for purposes of removing the
children from the grandmother’s care. Primarily, the trial court relied on testimony from the case
worker and other DHHS staff that the grandmother was focused on reuniting the children with
respondent and that grandmother’s request for guardianship was a ruse to circumvent termination
of respondent’s parental rights. Throughout the pendency of this case, respondent demonstrated
that he had unresolved substance abuse and mental health issues. Yet, the grandmother denied
that respondent had any problems, and she consistently blamed mother for the commencement of
the child protective proceedings. The grandmother’s refusal to acknowledge respondent’s lack
of fitness to parent the children and her focus on returning the children to their father’s care
supported the trial court’s determination that placement of the children with her did not weigh
against termination of respondent’s parental rights.1



1
  Respondent relies on a Michigan Supreme Court order that remanded a case to the trial court
for reconsideration of whether termination was in the best interests of the child because “[t]he
trial court judge failed to articulate whether her generalized concerns regarding the lack of
permanency and stability for younger children placed with a guardian are present for this child.”
In re RJK, 501 Mich 867 (2017). Our Supreme Court further ordered that “the trial court shall
make an individualized determination as to whether terminating respondent’s parental rights is in


                                                -4-
         The trial court also relied on two documents that the paternal grandmother submitted to
the trial court before the termination hearing. Now, respondent argues that the trial court erred in
considering those documents. This argument fails.

         When the documents were discussed at the termination hearing, respondent did not object
to the trial court’s consideration of their contents. Therefore, this issue is unpreserved for appeal
and this Court reviews the issue for plain error affecting substantial rights. In re Utrera, 281
Mich App 1, 8; 761 NW2d 253 (2008). Generally, an error affects substantial rights if it caused
prejudice, i.e., it affected the outcome of the proceedings. People v Carines, 460 Mich 750, 763,
774; 597 NW2d 130 (1999). When plain error has occurred, reversal is warranted only when the
error resulted in the conviction of an actually innocent defendant or when an error seriously
affected the fairness, integrity or public reputation of judicial proceedings. Id. at 763-764.

        We conclude that the trial court properly considered paternal grandmother’s
documentation. “The trial court should weigh all the evidence available to determine the
children’s best interests.” In re White, 303 Mich App at 713. The grandmother voluntarily sent
the documents to the trial court in an attempt to demonstrate why she was a proper caregiver for
the children and why respondent’s parental rights should not be terminated. The documentation
consisted of a letter and a 41-page, single-spaced affidavit containing 65 numbered paragraphs.
The affidavit demonstrated significant paranoia regarding the DHHS and the court system. For
example, the grandmother claimed that the case worker was attempting to install “some kind of
device on my outlets and light switches so you can listen to me or watch me.” The affidavit was
also replete with references to the grandmother’s desire to use a guardianship to return custody
of the children to respondent. Yet, the affidavit showed that the grandmother was completely
unwilling to acknowledge respondent’s significant substance abuse history and mental health
challenges. The affidavit demonstrated that the grandmother was pursing respondent’s best
interests even when they were contrary to the children’s best interests. The documents were
evidence in the record available to the trial court, and we find no plain error in its consideration
as direct evidence regarding the grandmother’s fitness to care for the children.

        Furthermore, even if the trial court erred in considering the grandmother’s letter and
affidavit, there was sufficient evidence presented by the DHHS witnesses to establish that the
paternal grandmother was unfit to serve as a guardian for the children. This included testimony
that the grandmother refused to cooperate with CPS during an investigation into whether one of
the children suffered injuries while in her care. This also included testimony that the
grandmother refused to acknowledge respondent’s problems and that she prioritized his best



the best interests of respondent’s youngest child without regard to a generalized policy
disfavoring guardianship for children under the age of 14.” Id. Unlike the circumstances in In re
RJK, the trial court here articulated a number of other specific reasons to deny a guardianship
and order termination, including the concerns that the paternal grandmother was biased towards
her son, her priority was simply to reunite the children with respondent, and she essentially
refused to acknowledge that respondent had numerous unresolved issues that prevented
reunification.


                                                 -5-
interests over those of the children. For these reasons, the trial court did not clearly err in finding
that a guardianship with their paternal grandmother was not in the children’s best interests.

        Lastly, respondent argues that the trial court clearly erred when it found that termination
was in the best interests of the children because (1) the children’s placement with their paternal
grandmother weighed against termination, and (2) the trial court did not articulate its findings as
to each individual child. We disagree.

        The trial court concluded that termination of respondent’s parental rights was in the
children’s best interests because the following factors weighed in favor of termination: the
unsuitability of guardianship for the children, respondent’s lengthy history of struggling with
emotional stability, the children’s need for permanence and stability given their young age,
respondent’s poor history of attending parenting time, respondent’s non-compliance with his
treatment plan, and the positive potential for adoption given the children’s ages. Only the
following factors weighed against termination: father’s bond with the children, the absence of
continued domestic violence in the home, and respondent was not involved in questionable
relationships with other individuals. The children’s well-being while placed in foster care with
their paternal grandmother was a neutral factor. The trial court did not clearly err, based the
foregoing, when it concluded that termination was in the children’s best interests.

        The trial court did not err when it found that, at most, the relative placement was a neutral
factor given the concern of continued placement with the grandmother. Further, respondent
suffered from significant substance abuse and mental health problems and father failed to
participate in services designed to overcome those obstacles to reunification with his children.
He repeatedly failed drug tests, and his drug use included the use of cocaine. Respondent also
failed to visit his children when provided the opportunity to do so, choosing to visit them only
54% of the time. The record evidence as to respondent’s substance abuse issues, mental health
issues, and his repeated failure to participate in his treatment plan or visit his children favors
termination regardless of relative placement.

         Finally, the trial court did not err when it considered the best interests factors for the
children collectively. We have explained that “if the best interests of the individual children
significantly differ, the trial court should address those differences when making its
determination of the children’s best interests.” In re White, 303 Mich App at 715. When the
trial court made its best-interests determination, it explained that the best-interest factors did not
have to be addressed separately for each child. We detect no error in the trial court’s finding.
The three children were all young—the two youngest being twins. The trial court found that the
three were healthy, despite some differences in development. The interests of the three children
did not significantly differ, and there was no reason for the trial court to engage in a superfluous
best-interests analysis for each of the three children. All three greatly needed permanence,
stability, and finality, and they had an equal chance at adoption. A majority of the remaining




                                                 -6-
factors focused on respondent’s ability to parent the children, and there was no need to repeat
each of those factors for each child. In conclusion, the trial court did not clearly err in finding
that termination of respondent’s parental rights was in the children’s best interests.

       Affirmed.



                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Michael J. Kelly
                                                            /s/ Thomas C. Cameron




                                                -7-
