                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                    UNPUBLISHED
                                                                    August 18, 2016
 In re TRAVIS, Minors.

                                                                    Nos. 330633 & 330634
                                                                    Wayne Circuit Court
                                                                     Family Division
                                                                     LC No. 14-516124-NA



Before: MURPHY, P.J., and STEPHENS and BORRELLO, JJ.

PER CURIAM.

       Respondents appeal as of right from the order of the family division of the circuit court
terminating their parental rights to their three minor children. We affirm.

                                           I. FACTS

       Petitioner filed a petition for wardship over the youngest child, D.T., because respondent-
mother had received no prenatal care, was living in an abandoned home that was boarded up and
without utilities, and had made no provisions to care for D.T., who was born with severe medical
conditions. Two months later, petitioner sought wardship over the older two children as well,
because they appeared malnourished, and the basement of the family home was filled with raw
sewage and feces. Both respondents had a history of drug abuse. Over the 16 months that
followed, regular permanency planning hearings took place, but finally a petition for termination
was authorized.

       At the termination hearing, foster-care workers testified that respondents’ housing
continued to be problematic. The worker also said that both parents had difficulties interacting
with the children, and had missed half of their drug screens. Respondents also had a poor record
of appearing for visits with the children and attending medical appointments for D.T. Further,
neither respondent ever produced evidence of a legal source of income. The trial court
concluded that respondent-father was in fact operating a house of prostitution, with respondent-
mother as one of the prostitutes.

                               II. REUNIFICATION SERVICES



                                               -1-
        Respondents argue that the trial court erred in concluding that petitioner had expended
reasonable efforts to achieve reunification. The essence of this argument is that the petitioner
failed to offer the specific services that were needed and failed to offer the services ordered for a
sufficient period of time. In this case, neither respondent addresses the question of issue
preservation, see MCR 7.212(C)(7). Neither respondent argues that they requested additional
services or complained about the services that were offered. We do note that the respondents did
lodge complaints about being required to attend visitations in Ann Arbor; however, petitioner
moved the visitation site back to Wayne County long before the termination. We therefore deem
this issue unpreserved, thus subject to review only for plain error affecting substantial rights.
See Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).

        Where a court has taken temporary jurisdiction over a child, reasonable efforts must be
made to reunite the child with the natural parents unless doing so would cause a substantial risk
of harm to the child’s physical or mental well-being. Tallman v Milton, 192 Mich App 606, 614-
615; 482 NW2d 187 (1992), citing MCL 712A.19a(4). See also MCL 400.115b(2) (explaining
that “the department shall assure, if necessary, the provision of appropriate social services to the
child, parent, guardian, custodian, or person serving in loco parentis, to reinforce and supplement
the parental capabilities, so that the behavior or situation causing the problem is corrected or the
child is otherwise protected”). Where reasonable efforts toward reunification are required, but
the petitioning agency has failed to allow the respondent a reasonable opportunity to participate
in services, the result is a “hole” in the evidentiary record that renders termination of parental
rights improper. In re Mason Minors, 486 Mich 142, 158-160; 782 NW2d 747 (2010).

         In this case, respondents were offered abundant services, and on appeal respondents do
not so much complain of a lack of services offered or address any particularized service that
should have been offered, but instead argue that they were not given adequate time to participate
in and benefit from the services being offered. The record reveals that respondents were offered
parental training, individual counseling, drug treatment services and supervised visitation with
all of the minor children. However, respondents’ participation in these services was sporadic and
ineffective. For example, a foster-care worker testified that respondents “were ordered to
participate in parenting classes, a psychological evaluation, drug screening and substance abuse
counseling,” but that they “were discharged from individual counseling and drug abuse
counseling for noncompliance because the providers couldn’t contact them.” The foster-care
worker further reported that “there were a lot of missed [drug] screens,” and also “at least one
positive screen for mother and I believe two for father” indicating marijuana consumption.
Respondents were out of contact with the petitioner for significant periods of time during which
they had no contact with any of the children. The worker described respondents’ compliance
with their treatment plans in general as “[s]potty at best,” elaborating that communication “was
always a really big issue,” in that she sometimes had difficulty contacting respondents, including
when she needed consent for medical treatment for D.T. The foster-care worker added,
“sometimes when it seemed like they were beginning to make an effort and the other times they
would sort of drop off the radar for periods of time or they would comply with something for a
little while and then stop,” and that this tendency infected their participation in parenting classes,
over which they generated some “positive review” but then “began missing more classes.”
Neither party offers record evidence to the contrary.




                                                 -2-
         We are aware that respondent-mother has offered information to this Court that petitioner
failed to offer her services to facilitate her separation from respondent-father. Specifically, she
asked this Court to consider information that respondent-father has been accused of human
trafficking. She does not, however assert that she told either a counselor or a social worker that
she was a victim, nor does she offer any expert or other evidence upon which this Court could
find that she suffered a disability, psychological or otherwise, that precluded her from making a
revelation. In fact, the record reveals that she placed ads for sexual services in a publication
when respondent-father was in custody. The Court is generally aware that respondent-mother
may have been a victim of abuse who feared retribution from respondent-father, even in his
absence. However, there fails to be any evidence in the record from respondent-mother, such as
an affidavit from a counselor or a therapist, which would support such a finding by this Court. In
any case, it is clear that the trial court, while aware that respondent-mother engaged in
prostitution, had no knowledge that such activities were coerced. As to the services that were
provided to her, respondent-mother acknowledges that she continued to miss drug screens and
visitations but asserts that at the time of termination she was doing better.

        Respondent-father similarly asserts that he “was showing progress toward further
compliance with his Treatment Plan” without offering details on the degree of progress or record
citations to prove it. He protests that it was unreasonable to ask respondents to visit the children
in Ann Arbor for a time, but fails to explain why the transportation assistance petitioner offered
kept Ann Arbor out of reach. He complains that “the visits were scrutinized as to what ‘supplies’
they brought,” but does not explain why such scrutiny is not a valid part of assessing parenting
skills.

        Both respondents suggest not that they had become fit parents, but only that they were
progressing toward that goal. The implication is that they should have been given more time.
We are reminded that the children were in care for a year and a half. However, “the Legislature
did not intend that children be left indefinitely in foster care, but rather that parental rights be
terminated if the conditions leading to the proceedings could not be rectified within a reasonable
time.” In re Dahms Minors, 187 Mich App 644, 647; 468 NW2d 315 (1991). Respondents were
thus entitled to reasonable efforts at reunification, not endless efforts. Further, “[w]hile [the
agency] has a responsibility to expend reasonable efforts to provide services to secure
reunification; there exists a commensurate responsibility on the part of respondents to participate
in the services that are offered.” In re Frey, 297 Mich App at 248. In this case, the trial court
did not clearly err in concluding that respondents fell short of fulfilling their “commensurate
responsibility.”

        For these reasons, respondents fail to show that the trial court clearly erred in concluding
that petitioner expended reasonable efforts to achieve reunification.

                       III. STATUTORY BASES FOR TERMINATION

       Respondents argue that the trial court erred in concluding that termination of their
parental rights was warranted under MCL 712A.19b(3)(c)(i), (g), and (j), which provide as
follows:




                                                -3-
               (3) The court may terminate a parent’s parental rights to a child if the
       court finds, by clear and convincing evidence, 1 or more of the following:

                                              * * *

               (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.

                                              * * *

               (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.

        Respondent-mother reports that she has separated from respondent-father as a result of
federal criminal proceedings, and insists that with respondent-father out of her life she is now
poised to provide proper care and custody for her children.1 However, this argument does
nothing to challenge the trial court’s recognition that, at the time of decision, “mom and the other
women in the home are prostitutes and dad is the manager and he’s a participant some of the
time.” She does not effectively challenge the trial court's finding that respondents have never
offered the children a suitable home. Either of those findings supports the trial court’s
conclusions that (i) and (g) were proven. The record also supports the trial court’s conclusion
that the children would likely be subject to harm if returned to respondent-mother’s care.
Further, respondent-mother cites no authority for the proposition that an appellate court may look
to post-termination factual developments to conclude that a trial court clearly erred in concluding
that statutory termination criteria were satisfied. See In re Dahms, 187 Mich App at 647.


1
  We have declined to examine the exhibit respondent-mother offers to show respondent-father’s
involvement with the federal criminal justice system, on the ground that in offering it
respondent-mother is attempting to enlarge the record. See MCR 7.210(A) (“Appeals to the
Court of Appeals are heard on the original record.”).



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        Respondent-father in turn merely protests that he was “showing progress toward
compliance” with his service plan, not that he had in fact shown the court that he had achieved
what was required for reunification. But for his complaint that for a time visitation was in Ann
Arbor, he does not criticize the services offered. As to the argument about the visitation, the
record evidence is that he was offered transportation assistance in the form of money, train
tickets and rides. Unemployed, he offers no reason as to why he did not avail himself of that
assistance. His principal argument is that he should have been given more time beyond the 18
months that the children were in care. We disagree.

       For these reasons, respondents fail to show that the trial court erred in concluding that
termination of their parental rights was warranted under MCL 712A.19b(3)(c)(i), (g), and (j).

                                     IV. BEST INTERESTS

       “If the court finds that there are grounds for termination of parental rights and that
termination of parental rights is in the child’s best interests, the court shall order termination of
parental rights and order that additional efforts for reunification of the child with the parent not
be made.” MCL 712A.19b(5). Respondents argue that the trial court erred in concluding that
termination of their parental rights was in the best interests of the children.

        An appellate court reviews “for clear error . . . the court’s decision regarding the child’s
best interest.” In re Trejo Minors, 462 Mich at 356-357. Although termination of parental rights
requires proof of at least one of the statutory termination factors on clear and convincing
evidence, “the preponderance of the evidence standard applies to the best-interest
determination.” In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013).

       In delivering its conclusions on best interests, the trial court stated :
               . . . I believe all these children have special needs, but [D.T.] is by far the
       worse [sic]. Mom and dad are not remotely able to parent [D.T.] but they aren’t
       able to handle the other two children either. They aren’t willing to make the
       changes in their lifestyle. That would allow them to do that kind of thing. What
       this moves me in the direction of doing is terminating parental rights.

                                              * * *

               . . . [T]hese children are at critical ages in terms of their intellectual
       development. Continuing to be in foster care is a bad thing. They . . . strongly
       need permanence, particularly [D.T.]. But [the other two children] do too. One
       of the children has been diagnosed as having some special needs, and the other
       one I think that will be diagnosed in time. . . . They need to get out of foster care.
       They need to be adopted.

               . . . These children’s ages militate in favor of termination, giving up on
       trying to rehabilitate the family.




                                                -5-
               . . . [W]ith [D.T.] being in care 20 months, [and the others] being in care
       18 months, that’s a long time for children like this. The strength of their
       relationship with mom and dad has gone down a great deal. . . .

                                               * * *

              . . . And for children with special needs we need to be even more careful
       regarding disruptions. If anything, that militates in favor of a termination and
       adoption not disturbing the children’s surroundings.

                                               * * *

               . . . [D.T.] is by himself, and a termination and adoption will split the
       children. The bond between [D.T.] and the others is far weaker that it was 18
       months ago. But again, the children haven’t had that much dealings together in
       all this time. I would point to this militating weakly against termination of
       parental rights.

               . . . I’m going to find that termination is in each of the children’s best
       interest with regard to each of the parents. It’s especially the case regarding
       [D.T.]. But it is present by well more than a preponderance of legally admissible
       evidence regarding the other two children.

        Respondent-father states that the trial court failed to consider the best interests of the
children individually. See In re Olive/Metts Minors, 297 Mich App 35, 42; 823 NW2d 144
(2012). However, in delivering its findings and conclusions concerning the children’s best
interests, the trial court took pains to recognize the needs of each child, and specially noted that it
was not considering them collectively, or merely projecting D.T.’s special needs over the older
two children.

        Both respondents assert generally that visits went well for all involved, but fail to rebut
indications that they did not consistently interact with the children appropriately, or that the
oldest child explicitly expressed his wish not to have further visits with respondents.
Respondent-mother also argues adoption plans as they were taking shape would result in
splitting up the children. The trial court did in fact recognize that eventuality as militating
against termination, but only “weakly” so because “the children haven’t had that much dealings
together in all this time.”

        The court specifically found that residency with respondents was not suitable for
children, because they kept their houses in poor condition and ran prostitution operations from
them. This finding is amply supported by testimony from the foster-care workers and, as to the
prostitution, is admitted by the respondent-mother. During the pendency of the case they
reported at least five addresses. The ones that were inspected were in poor repair, one with feces
in the basement and another without electricity. Other addresses were never offered for
inspection or verification. Neither parent provided any source of legal income with which to
procure suitable housing.




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        For these reasons, respondents fail to show that the trial court clearly erred in concluding
that termination of their parental rights was in the children’s best interests.

       Affirmed.

                                                             /s/ William B. Murphy
                                                             /s/ Cynthia Diane Stephens
                                                             /s/ Mark T. Boonstra




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