                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                    UNPUBLISHED
                                                                    December 11, 2018
In re Z. C. CHASTON BARRON, Minor.

                                                                    No. 344084
                                                                    Clare Circuit Court
                                                                    Family Division
                                                                    LC No. 15-000107-NA


Before: BOONSTRA, P.J., and JANSEN and GADOLA, JJ.

PER CURIAM.

        Respondent appeals as of right the order of the trial court terminating her parental rights
to the minor child under MCL 712A.19b(3)(c)(i) (failure to rectify the conditions that led to the
adjudication), MCL 712A.19b(3)(g) (failure to provide proper care or custody), and MCL
712A.19b(3)(j) (reasonable likelihood of harm). 1 We affirm.

                                       I. BACKGROUND

        In December 2015, when the minor child was six weeks old, the Department of Health
and Human Services (DHHS) petitioned to remove him from respondent’s home because of
domestic violence between respondent and the child’s father, drug abuse by both parents, and
respondent’s inability to care for the child on her own because of a cognitive disability.
Respondent participated in services for more than two years, but did not make significant
progress. She participated in substance abuse counseling, but continued to test positive for
marijuana use without possessing a medical marijuana card. She also tested negative for her
prescribed drugs, which apparently were being consumed by the child’s father who tested
positive for the drugs. She did not benefit from parenting education, did not complete individual
or family counseling, and was unable to demonstrate the ability to parent on her own. In October
2017, DHHS updated the parent-agency treatment plan to provide alternative services and
provide respondent more support because of her intellectual disability. Respondent nonetheless
failed to progress, and DHHS ultimately filed a supplemental petition to terminate her parental
rights. After a termination hearing in May 2018, the trial court found statutory grounds to


1
 The parental rights of the minor’s father were also terminated in the same order, but he is not a
party to this appeal.


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terminate respondent’s parental rights and found that termination was in the child’s best interests.
Respondent now appeals, arguing that the trial court erred by finding that clear and convincing
evidence supported the statutory grounds.

                                           II. ANALYSIS

                                   A. STANDARD OF REVIEW

        This Court reviews for clear error the trial court’s determination that a statutory ground
for termination has been proven by clear and convincing evidence. MCR 3.977(K); In re Moss,
301 Mich App 76, 80; 836 NW2d 182 (2013). “A finding of fact is clearly erroneous if the
reviewing court has a definite and firm conviction that a mistake has been committed, giving due
regard to the trial court’s special opportunity to observe the witnesses.” Id. (quotation marks and
citation omitted).

                                   B. STATUTORY GROUNDS

       The trial court may terminate parental rights when at least one statutory ground has been
proven by clear and convincing evidence. MCL 712A.19b(3); In re Moss, 301 Mich App at 80.
At the time of the termination, the applicable statutory grounds provided for termination of
parental rights 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.[2]

                                               * * *

                 (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. [MCL 712A.19b(3)(c)(i), (g), (j).]



2
    MCL 712A.19b(3)(g) was amended, effective June 12, 2018, by 2018 PA 58.


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        The trial court took jurisdiction in this case because of domestic discord between
respondent and the child’s father, the parents’ drug abuse, and respondent’s inability to care for
the child because of her cognitive disability. She received approximately 28 months of services,
including a psychological evaluation, individual therapy, substance abuse therapy, parent
education, visitation support, and couples counseling. In October 2017, in light of In re
Hicks/Brown, 500 Mich 79; 893 NW2d 637 (2017),3 petitioner reevaluated and adapted services
to better accommodate respondent’s cognitive disability. After the extra services and time
afforded to respondent, multiple witnesses, including the foster care worker, parenting time
supervisor and educator, and respondent’s therapist, testified that she had failed to benefit from
the services and opined that she could not parent the child on her own. Under these
circumstances, termination under MCL 712A.19b(3)(c)(i) was firmly supported.

        Termination was also supported under factor (g). “A parent’s failure to participate in and
benefit from a service plan is evidence that the parent will not be able to provide a child proper
care and custody.” In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014). Respondent was
offered extensive services and extra time to comply and benefit from them, but only participated
in some of the offered services. She did not complete individual counseling, and though she
participated in parent education and attempted to implement suggestions, she was unsuccessful,
and showed “minimal progress” overall in services. Respondent’s inability to benefit from
services established that she could not provide proper care and custody and that there was no
reasonable expectation that she would be able to do so within a reasonable time. MCL
712A.19b(3)(g).

        Termination was also supported under factor (j). The reasonable likelihood of harm
contemplated by this factor encompasses both physical and emotional harm. See In re Hudson,
294 Mich App 261, 268; 817 NW2d 115 (2011). Shortly after the child was removed from
respondent’s care, he was diagnosed with failure to thrive, and his pediatrician testified that this
was caused by the child not getting enough to eat. Throughout the case, respondent struggled
with understanding how to provide the child with proper nutrition. Evidence also suggested that
respondent had trouble recognizing safety issues in the home and would likely have difficulty
handling an emergency situation. Adequate evidence therefore demonstrated that there was a
reasonable likelihood that the child would suffer physical harm if returned to respondent.
Furthermore, there was evidence that respondent did not have a bond with the child and that she
was unable to understand his emotional cues, which supports the finding that he could be
emotionally harmed if returned to respondent’s care. Therefore, the trial court did not clearly err
by finding that clear and convincing evidence supported termination under MCL 712A.19b(3)(j).

       On appeal, respondent contends that the trial court improperly based its decision on the
testimony of the psychologist, Dr. Barnes, who evaluated respondent throughout the case. She



3
  “[E]fforts at reunification cannot be reasonable under the Probate Code unless the Department
modifies its services as reasonably necessary to accommodate a parent’s disability.” In re
Hicks/Brown, 500 Mich at 90. Respondent in this case does not argue that she was not afforded
reasonable accommodations.


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contends that Dr. Barnes’ opinion that she could not safely parent the child because of her
cognitive impairment was speculative because Dr. Barnes admitted that he had never evaluated
respondent’s “adaptive capabilities.” Dr. Barnes, however, testified that respondent probably
had stronger adaptive capabilities than her IQ tests indicated. Thus, Dr. Barnes actually gave
respondent the benefit of the doubt, that she has strong adaptive capabilities and could benefit
from services. Moreover, the trial court did not rely exclusively upon Dr. Barnes’ testimony, but
instead relied upon the testimony of multiple witnesses, all of whom concluded that respondent
did not have the capacity to parent the child, thereby providing ample evidence to support
termination. Unfortunately, respondent did not benefit from services, despite the reasonable
accommodations afforded to her based on her cognitive disability.

                                      B. BEST INTERESTS

         The trial court also did not err in concluding that termination was in the best interests of
the child. “Once a statutory ground for termination has been proven, the trial court must find
that termination is in the child’s best interests before it can terminate parental rights.” In re
Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 114 (2012), citing MCL 712A.19b(5) and
MCR 3.977(E)(4). “[W]hether termination of parental rights is in the best interests of the child
must be proved by a preponderance of the evidence.” In re Moss, 301 Mich App at 90. In
determining a child’s best interests, the court should consider a variety of factors, including “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 White,
303 Mich App at 713 (quotation marks and citation omitted). Other factors a court may consider
are “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 children’s well-being while in care, and the
possibility of adoption.” Id. at 714.

        In this case, the trial court found that respondent loved her child, but did not fully
understand what it meant to be a parent. It also found that she could not care for herself and
would be unable to care for a toddler, and that there was a lack of a parent-child bond. The child
had been in the same foster home since he was removed from respondent’s home at the age of
six weeks, and his foster family was open to adopting him. The trial court considered relevant
factors and did not clearly err by finding that termination of respondent’s parental rights was in
the child’s best interests.

       Affirmed.



                                                              /s/ Mark T. Boonstra
                                                              /s/ Kathleen Jansen
                                                              /s/ Michael F. Gadola




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