                          STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re VANVLEET, Minors.                                              November 3, 2016

                                                                     No. 332321
                                                                     Calhoun Circuit Court
                                                                     Family Division
                                                                     LC No. 14-001453-NA


Before: RONAYNE KRAUSE, P.J., and O’CONNELL and GLEICHER, JJ.

PER CURIAM.

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

                                 I. FACTUAL BACKGROUND

        The Department of Health and Human Services (the Department) became involved with
the children in early 2014 after Foster engaged in a series of incidents that placed the children at
risk. First, Foster and her boyfriend were involved in a road-rage incident during which she was
shot while the middle child was present. Second, Foster attempted to kill herself in April 2014;
again, the middle child was present. Finally, Foster and her boyfriend were arrested in a
methamphetamine raid on their home in May 2014. The Department removed the children from
Foster’s care.

        Foster pleaded responsible for placing the children at a risk of harm. From May 2014
through November 2015, Foster engaged in drug court, counseling, and mental health treatment.
It is undisputed that Foster made progress and, as a result, the Department returned the children
to Foster’s care in November 2015.

        However, in December 2015, Foster drove while intoxicated. Yet again, the middle child
was present. Foster crashed through several yards, struck a flag pole, and abandoned her vehicle.
A breathalyzer revealed Foster’s blood alcohol content was 0.21. Keeley Wetzel, the children’s
foster care worker, testified that she was at the home for her weekly visit when Foster was
arrested. The children were highly traumatized, threatened harm to others, screamed, and cried.
The trial court again removed the children from Foster’s care and, in February 2016, the
Department initiated termination proceedings.


                                                -1-
       At the termination hearing, Wetzel testified that Foster had pleaded guilty to charges of
operating while intoxicated stemming from her decision to drive drunk in the December 2015
incident. Wetzel detailed the extensive services the Department had offered Foster—including
psychological services, counseling, parenting classes, drug abuse treatment, drug screens,
parenting time, and transportation. According to Wetzel, Foster’s December 2015 behavior
arose after she stopped taking prescribed psychiatric medications, and her failure to take her
medications had resulted in trouble throughout the proceedings.

       According to Kathleen Keeder, Foster’s counselor, Foster would sometimes demonstrate
a benefit from counseling, but then “things would deteriorate.” Foster did not sustain her
progress but continually reverted to destructive behavior and poor choices. Keeder testified that
there was no reasonable expectation that Foster would improve with further counseling. Even
Foster admitted that counseling was not entirely helpful, but she stated that she believed it had
helped a little.

        Brian Bornefeld, the children’s counselor, testified that there was a strong and significant
bond between Foster and the children. However, the bond was unhealthy. It led the children to
make excuses for Foster’s poor behavior, lie to authority figures on her behalf, and blame other
people for the consequences of Foster’s actions. “[T]hat’s a dangerous, dangerous mind set to
get into when you’re that young.” Foster also missed many appointments that Bornefeld had
with the children. Bornefeld opined that, while termination would be traumatic for the children,
it was in their best interests because they needed stability, predictability, and structure to
improve.

        Following the termination hearing, the trial court terminated Foster’s parental rights
under MCL 712A.19b(3)(c)(i), (g), and (j). Specifically, the trial court found that adjudication
occurred because of Foster’s criminal behavior, substance abuse, and mental health issues, which
were not rectified and were not likely to be rectified within a reasonable time. The trial court
found that although Foster completed with services, she did not benefit from them and repeatedly
put the children at a risk of harm.

        Regarding the children’s best interests, the trial court found that the children were
strongly bonded to Foster and would be traumatized by termination, but it also found that they
would face further trauma if they remained in Foster’s care. It found that termination would
provide the children with the opportunity to have permanence and stability, which they would
not have in Foster’s care. Accordingly, it found that termination was in the children’s best
interests. Foster now appeals.

                                 II. STANDARDS OF REVIEW

        This Court reviews for clear error the trial court’s factual findings and ultimate
determinations on the statutory grounds for termination. In re Mason, 486 Mich 142, 152; 782
NW2d 747 (2010). We also review for clear error the trial court’s determination regarding the
children’s best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). A finding
is clearly erroneous if, after reviewing the entire record, we are definitely and firmly convinced
that the trial court made a mistake. Mason, 486 Mich at 152. We review de novo issues of
constitutional law. In re Sanders, 495 Mich 394, 403-404; 852 NW2d 524 (2014).

                                                -2-
              III. CONSTITUTIONAL RIGHTS AND STATUTORY GROUNDS

       Foster contends that the trial court violated her constitutional right to parent her children
and that statutory grounds did not support terminating her parental rights. We disagree.

        The Due Process Clause of the Fourteenth Amendment of the United States Constitution
protects “the interest of parents in the care, custody, and control of their children . . . .” Troxel v
Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000). Our statutes, court rules, and
DHS policies are in place to generally ensure that parents are provided with procedural due
process when their children are removed from their home. In re Rood, 483 Mich 73, 93; 763
NW2d 587 (2009) (opinion by CORRIGAN, J.). But once the Department has established
statutory grounds for termination, the state’s interests in the children’s safety overcome the
parent’s right to custody and control of his or her children. In re Trejo, 462 Mich 341, 355; 612
NW2d 407 (2000).

                 MCL 712A.19b(3)(c)(i) provides that the trial court may terminate a parent’s
rights if there is clear and convincing evidence that:

       [t]he 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.

This statutory ground exists when the conditions that brought the children into foster care
continue to exist despite “time to make changes and the opportunity to take advantage of a
variety of services.” See In re Powers Minors, 244 Mich App 111, 119; 624 NW2d 472 (2000).

       MCL 712A.19b(3)(g) provides that the trial court may terminate a parent’s rights if

       [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.

And MCL 712A.19b(3)(j) provides that the trial court may terminate parental rights if

       [t]here 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.

The trial court may properly consider the parent’s mental health and substance abuse conditions
when determining whether a parent can provide a child with proper care and custody and
whether it is reasonably likely that the child will be harmed if returned to the parent’s home. See
In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008); In re AH, 245 Mich App 77, 87; 627
NW2d 33 (2001). A parent’s failure to comply with his or her service plan is evidence that the
parent will not be able to provide a child with proper care and custody and that the child may be
harmed if returned to the parent’s home. White, 303 Mich App at 710-711. The parent must
both comply with and benefit from the service plan. In re Frey, 297 Mich App 242, 248; 824
NW2d 569 (2012).

                                                 -3-
        In this case, the children came into care because Foster’s substance abuse and mental
health conditions placed the children at a risk of harm. Throughout the pendency of the case,
Foster complied with the service plan and initially it appeared that she derived some benefit.
However, Foster’s behavior in December 2015 demonstrated that she did not benefit from the
service plan. Foster’s counselor testified that Foster continued to make poor decisions, did not
benefit from counseling, and that there was no reasonable likelihood that she would benefit in the
future.

        Given these facts, we are not definitely and firmly convinced that the trial court made a
mistake when it found that Foster had not rectified the conditions that brought the children into
care, could not provide the children with proper care and custody, placed the children at a risk of
harm through her conduct, and that it was not reasonably likely that Foster would improve within
a reasonable time. Because the trial court did not err in finding that statutory grounds supported
terminating Foster’s parental rights, the state’s interests in the children’s safety overcame
Foster’s constitutional liberty interests in parenting her children.

                                     IV. BEST INTERESTS

       Foster contends that the trial court erred when it found that termination was in the
children’s best interests because they were strongly bonded with Foster and termination would
traumatize them. We disagree.

        The trial court should weigh all the evidence available to determine the children’s best
interests. White, 303 Mich App at 713. To determine whether termination of a parent’s 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.”
In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted).
Even when the parent and children are strongly bonded, if there is a serious dispute about
whether a parent has a healthy bond with the children, termination may be in the children’s best
interests. See In re CR, 250 Mich App 185, 196-197; 646 NW2d 506 (2001), overruled in part
on other grounds by In re Sanders, 495 Mich 394, 422-423 (2014).

        Foster focuses exclusively on the strength of the bond between herself and the children
when arguing that termination was not in the children’s best interests. However, Bornefeld
explicitly testified that the children’s bond with Foster was not healthy and that the children
needed stability that Foster could not provide. Additionally, there was testimony that Foster’s
behavior had traumatized the children while they were in her care and that Foster consistently
placed the middle child at a risk of physical danger with her actions. Considering the full record
in this case, we are not definitely and firmly convinced that the trial court made a mistake when
it found that terminating Foster’s parental rights was in the children’s best interests.

       We affirm.

                                                            /s/ Amy Ronayne Krause
                                                            /s/ Peter D. O’Connell
                                                            /s/ Elizabeth L. Gleicher

                                                -4-
