            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
                                                                     July 18, 2019
In re RITTERSDORF, Minors.

                                                                     No. 346702
                                                                     Montcalm Circuit Court
                                                                     Family Division
                                                                     LC No. 2017-000799-NA


Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ.

PER CURIAM.

        Respondent-mother appeals from an order of the circuit court terminating her parental
rights to the minor children. We reverse and remand.

        Respondent is the mother of MR and HR.1 She was incarcerated in the Kent County Jail
when HR was born on August 31, 2017. MR was two months shy of her fifth birthday. The day
after HR’s birth, petitioner filed a petition in the family division and the children were removed.
The children were returned a week later when respondent bonded out of the jail. Approximately
one month later, respondent was again arrested on two retail fraud charges and the children were
again removed. In between, the trial court held a pretrial hearing, at which respondent admitted
to an allegation in the petition, namely that both she and HR had tested positive for cocaine at his
birth, and the court assumed jurisdiction.




1
  Respondent also has two older children who were included in the petition and were teenagers at
the time of the termination hearing. Her parental rights to those two children were not
terminated and are not part of this appeal. The children’s father, respondent’s ex-husband, was
also a party to this proceeding and his parental rights were terminated as to all four children. He
is not, however, a party to this appeal.




                                                -1-
        At the termination hearing, the only testimony presented by petitioner was that of
respondent.2 She admitted that she had had a drug addiction issue, specifically with respect to
opiates and cocaine. She additionally admitted to committing a number of retail frauds in order
to support her drug habit. According to respondent, she was incarcerated in the Kent County Jail
until January 11, 2018, at which time she was transferred to prison. She testified that she
participated in AA/NA and other programs while in the Kent County Jail. She stated that once in
prison she participated in programs there, including NA/AA, National Lifers Association,
Healing and Trauma, House of Healing, Moving On, Parting Inside Out, Grief and Loss, and
Advanced Substance Abuse Treatment. She stated that she intended to remain sober once
paroled, continuing with NA and AA.3 Her additional testimony largely centered on her success
in these programs, her desire to continue her progress and get her life straightened out, and to be
reunited with her children.

       Respondent called two witnesses on her behalf, her aunt and her former father-in-law (the
children’s grandfather).4 They essentially served as character witnesses.

        After terminating the father’s parental rights to all four children, the trial court turned to
the request to terminate respondent’s rights to the two younger children. The trial court found
that three statutory grounds for termination existed: MCL 712A.19b(3)(c) (failure to rectify the
conditions that led to adjudication), MCL 712A.19b(3)(g) (failure to provide proper care and
custody for the children), and MCL 712A.19b(3)(j) (there is a reasonable likelihood of harm if
the children are returned to the home). The trial court then determined that it was in the
children’s best interests to terminate respondent’s parental rights.

        On appeal, respondent argues that the trial court erred both in determining that the
statutory grounds for termination exist and that it was in the children’s best interests to terminate
her parental rights. We agree and reverse.

               We review for clear error a trial court’s factual findings as well as its
       ultimate determination that a statutory ground for termination of parental rights
       has been proved by clear and convincing evidence. MCR 3.977(J); In re Trejo
       Minors, 462 Mich 341, 356–357, 612 NW2d 407 (2000). “ ‘A finding is “clearly
       erroneous” [if] although there is evidence to support it, the reviewing court on the
       entire evidence is left with the definite and firm conviction that a mistake has


2
  Petitioner also presented respondent father’s testimony, but that was largely only relevant to the
issue whether his parental rights should be terminated.
3
  She testified that her “out date” was November 14, 2018, a few days after the hearing. But
according to the Offender Tracking and Information System (OTIS), she was not paroled until
February 12, 2019.
4
 The two older children were placed with the grandfather after the removal from the home. The
younger two children were placed in a separate foster home.



                                                 -2-
       been made.’ ” In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989) (citation
       omitted). [In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010).]

We are left with a definite and firm conviction that the trial court was mistaken in determining
that the statutory grounds for termination had been proved by clear and convincing evidence.

        We initially note that there are, in fact, significant issues related to respondent and her
ability to parent these children. We do not dispute that intervention by the family court was
necessary. Nor are we suggesting that the children should be immediately returned to respondent
and the case closed. Indeed, respondent’s counsel did not even suggest that in her closing
argument; rather, counsel argued for continued court supervision after respondent’s imminent
parole to determine if she had benefited from the services she availed herself of in prison and
could continue to make progress once paroled and be able to resume responsibility to parent her
children.

       As noted above, the only testimony presented by petitioner was calling respondent as a
witness. And, while respondent did freely admit to her problems that led to the removal of the
children, she also testified to the efforts that she made while in prison to address those problems.
That testimony went unrebutted. Indeed, the trial court itself even commented in its decision on
the positive steps taken by respondent:

              At this time, I commend the mother for the efforts she has made. It
       appears and the testimony supports that she was a model prisoner and that she
       took full advantage of the services that were made available to her while
       incarcerated. Those services include AA or NA one time per week. Healing and
       Trauma, which were five sessions over a period of five days to assist her in
       avoiding unhealthy relationships. The House of Healing, which was a grief and
       loss coping skill program that met one time per week—and I don’t recall how
       long that was but I know she completed it. Parenting Inside Out three times per
       week and based on the—I can’t—exhibits, I believe it was one and two, she
       excelled in those—that program. She also participated in Advance Substance
       Abuse Treatment which was four times per week for four months. There was
       another class or counseling, Grief and Loss, which was one time per week for
       three months. Moving On, which was an unhealthy relationship abused women
       platform that met two times per week for three months. And Shoplifting
       Anonymous, which she was not able to complete because, as the Court
       understands correctly, she’s going to be released before she can complete the
       program.

       Despite the trial court’s acknowledgement of respondent’s efforts and success with these
programs in prison, the court determined that the grounds for termination were met because these
programs only took place while in prison and that it would be impossible to determine, within a
reasonable time, whether she benefitted from these programs with respect to her life outside of
prison. The court further emphasized the need, given the children’s young ages, of permanency
within a reasonable time. Indeed, this is a theme that the court repeated in reaching its
conclusions on each of the three statutory grounds.


                                                -3-
       With respect to § 19b(3)(c), the trial court stated:

               The conditions that led to adjudication continue to exist. Ms. Cavanaugh
       cannot demonstrate any benefit. She’s still incarcerated. Granted, she gets out
       next Wednesday, but to prove or show any benefit would take at least a year, nine
       months to a year at a minimum, and these children would have been out of the
       home by then for 25 months, if my math is right. No, 28 months. That’s simply
       too long. She hasn’t shown benefit, not for the lack of effort, it’s because she’s
       been incarcerated and she can’t prove benefit.               She received those
       recommendations. She’s been given a reasonable opportunity. Unfortunately, her
       incarceration has prevented her from showing that she’s benefited from the
       programs. And the kicker for this Court is she can’t show, in this Court’s opinion,
       that the conditions that led to the Court assuming jurisdiction can be rectified
       within a reasonable time.

The trial court made a similar observation with respect to § 19b(3)(g):

               The Court has already referenced the services she’s provided—been
       provided and for which she availed herself of, but she hasn’t shown benefit and
       can’t prove benefit because she’s in prison. But the kicker with this case as far as
       the Court’s concerned is that she cannot, within a reasonable time considering the
       children’s age, 14 months and six years old, show that she’s benefited within a
       reasonable time, it’s going to be another nine months to a year. That’s simply too
       long for these children not to have permanence, and what if she fails? What if she
       doesn’t make it?

And this theme continues with respect to § 19b(3)(j):

               The mother acknowledges that she’s been addicted to opiates for ten years,
       beginning with a—like many of these cases that we have addiction—beginning
       with a doctor’s prescription. But that’s been ongoing now for ten years and it
       evolved into a substantial degree of opioid abuse, which the mother, to her credit,
       acknowledges. In fact, her testimony was very frank today about her involvement
       with drugs and shoplifting. But at this point, she’s still incarcerated, and there’s
       simply no evidence that she’s benefited from the programs. Being able to be drug
       free and shoplifting agree in prison is something that should be able to be
       maintained. And I kind of agree with [respondent’s aunt’s testimony] that if you
       know where to get drugs in prison, I’m sure you can get them. It’s no secret that
       there are drugs in prison. But at this point, I can’t find that the children won’t be
       harmed especially—I mean, [MR and HR]—won’t be harmed if they return to her
       home.

        In sum, the trial court essentially concluded that, although respondent made an effort and
progress in prison, because it cannot ensure that that progress will extend once she’s released,
her rights must be terminated. But, the Supreme Court in Mason made it clear that incarceration
cannot be the sole basis for termination.


                                                 -4-
       The respondent in Mason had his parental rights terminated under the same statutory
grounds as respondent in this case. The Court was extremely critical of how the matter was
handled with respect to the father’s incarceration:

               As the earlier discussion suggests, the state’s failures in this case (which
      are all too common in this type of case) appear to stem primarily from the fact of
      respondent’s incarceration. Not only did the state fail to properly include him in
      the proceedings, but the circuit 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.
      The mere present inability to personally care for one’s children as a result of
      incarceration does not constitute grounds for termination. [Mason, 486 Mich at
      160; footnote omitted.]

In addressing the individual statutory grounds for termination, the Court made these
observations:

              Finally, we turn to the substance of the other grounds for termination.
      Under MCL 712A.19b(3)(c)(i ), the DHS must show by clear and convincing
      evidence that “182 or more days have elapsed since the issuance of an initial
      dispositional order,” that the “conditions that led to the adjudication continue to
      exist,” and that “there is no reasonable likelihood that the conditions will be
      rectified within a reasonable time considering the child’s age.” Under MCL
      712A.19b(3)(g), the DHS must show that “[t]he 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.” As under MCL 712A.19b(3)(h),
      each of these grounds requires clear and convincing proof that the parent has not
      provided proper care and custody and will not be able to provide proper care and
      custody within a reasonable time. As such, these additional grounds are factually
      repetitive and wholly encompassed by MCL 712A.19b(3)(h). Because the court
      erred in evaluating whether respondent could care for his children in the future,
      either personally or through his relatives, termination under MCL
      712A.19b(3)(c)(i ) or (g) was also premature.

              The only other ground alleged for termination was that in MCL
      712A.19b(3)(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.” Termination on this ground was clearly erroneous
      because no evidence showed that the children would be harmed if they lived with
      respondent upon his release. Significantly, just as incarceration alone does not
      constitute grounds for termination, a criminal history alone does not justify
      termination. Rather, termination solely because of a parent’s past violence or
      crime is justified only under certain enumerated circumstances, including when
      the parent created an unreasonable risk of serious abuse or death of a child, if the
      parent was convicted of felony assault resulting in the injury of one of his own


                                               -5-
       children, or if the parent committed murder, attempted murder, or voluntary
       manslaughter of one of his own children. MCL 712A.19a(2); MCL 722.638(1)
       and (2). The DHS did not present any evidence suggesting that respondent had
       ever harmed a child. Indeed, the errors in this case are particularly troubling
       given that respondent’s criminal history consisted largely of short jail stints for
       comparatively minor offenses. The record shows that he supported his family
       before his imprisonment and no evaluation was ever conducted to gauge whether
       he was likely to offend again. [Mason, 486 Mich at 164-165.]

        The problems in Mason were more extensive than in our case as the father in Mason was
also precluded from meaningful participation in the process. But many similarities nonetheless
exist. The Mason Court began its analysis with the following observation:

              The state is not relieved of its duties to engage an absent parent merely
       because that parent is incarcerated. In this case, once again, the DHS’s efforts
       focused exclusively on the custodial mother and essentially ignored the father.
       “Reasonable efforts to reunify the child and family must be made in all cases”
       except those involving aggravated circumstances not present in this case. MCL
       712A.19a(2) (emphasis added). Here, because the DHS and the court failed to
       adhere to court rules and statutes, respondent was not afforded a meaningful and
       adequate opportunity to participate. Therefore, termination of his parental rights
       was premature.

Respondent was not ignored in this case. Nor was she denied a meaningful and adequate
opportunity to participate in the process. But what was ignored was providing her an opportunity
to be reunified with her children. That is, an opportunity to demonstrate that the substantial
efforts that she made while in prison—efforts that the trial court itself acknowledged—could be
carried over into the outside world.

        The trial court might well be correct that respondent might ultimately be unable to
overcome her problems and be able to adequately parent these children. We do not ignore or
minimize that possibility. But neither do we have a crystal ball to tell us that her efforts are for
naught. She has expressed a desire and willingness to face her demons and the trial court did not
question her sincerity in doing so. She should have been provided the opportunity to do so upon
her release from prison.

        As the Mason Court concluded in that case, we also conclude here: termination of
parental rights was premature. Instead of terminating parental rights, the trial court should have
continued the wardship and provided continuing services to respondent following her release
from prison. If she were to fail to take advantage of those services, relapse in her addiction, or
return to her criminal activity, then perhaps there will be a need for the trial court to revisit the
question of termination of parental rights. But as Justice CORRIGAN so aptly observed in Mason,
respondent’s incarceration did not relieve the state of its obligation to attempt to reunify
respondent with her children. It is only after a meaningful opportunity to be reunified has failed
that termination of parental rights is a viable option.



                                                -6-
        Because we conclude the trial court clearly erred in finding that a statutory ground
existed for termination, we need not address respondent’s argument that termination was not in
the children’s best interests.

       We reverse the trial court’s order terminating respondent’s parental rights to the minor
children and remand the matter to the trial for further proceedings consistent with this opinion.
We do not retain jurisdiction.



                                                           /s/ David H. Sawyer
                                                           /s/ Stephen L. Borrello
                                                           /s/ Douglas B. Shapiro




                                               -7-
