                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re A. S. SANCHEZ, Minor.                                          April 6, 2017

                                                                     No. 333993
                                                                     Oakland Circuit Court
                                                                     Family Division
                                                                     LC No. 2014-825548-NA


Before: M. J. KELLY, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Respondent father appeals as of right an order terminating his parental rights to his minor
child pursuant to MCL 712A.19b(3)(j) and (n). We affirm.

       Respondent father first argues that the trial court clearly erred because petitioner did not
make reasonable efforts for reunification, which resulted in the termination of his parental rights.
We disagree.

        This Court will “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.” In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010),
citing MCR 3.977(K). The trial court’s finding is clearly erroneous if, although there is evidence
to support it, the reviewing court on the entire evidence is left with a definite and firm conviction
that a mistake has been made. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011).
The trial court “must find that at least one of the statutory grounds set forth in MCL 712A.19b
has been met by clear and convincing evidence.” In re Fried, 266 Mich App 535, 540-541; 702
NW2d 192 (2005), citing In re Terry, 240 Mich App 14, 21-22; 610 NW2d 563 (2000).
Questions of law, such as the interpretation and application of statutes and court rules, are
reviewed de novo. In re Mason, 486 Mich at 152.

        “In general, when a child is removed from the parents’ custody, the petitioner is required
to make reasonable efforts to rectify the conditions that caused the child’s removal by adopting a
service plan.” In re Fried, 266 Mich App at 542, citing MCL 712A.18f(1), (2), and (4). A
failure by petitioner to offer a respondent a reasonable opportunity to participate in services
creates a gap in the record that requires reversal of an order terminating parental rights. In re
Mason, 486 Mich at 158-160.

       Respondent father argues that he was offered services that were unattainable because he
was incarcerated throughout the pendency of the proceedings. He argues that his situation is

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analogous to In re B and J, 279 Mich App 12, 19-20; 756 NW2d 234 (2008), where this Court
held “that when the state deliberately takes action with the purpose of virtually assur[ing] the
creation of a ground for termination of parental rights, and then proceeds to seek termination on
that very ground, the state violates the due process rights of the parent. (Quotation marks and
citations omitted.) Respondent father’s argument is without merit.

        In In re B and J, 279 Mich App at 19, the petitioner sought termination under MCL
712A.19b(3)(g), claiming that the parents failed to provide proper care and custody for the child,
and there was no reasonable expectation that they would be providing care and custody in the
future. However, the trial court refused to terminate the parents’ rights because the petitioner
had reported the parents, who were in the country illegally, to the immigration authorities. Id.
Due to the petitioner’s actions, the parents were deported, leaving their children without proper
care and custody. Id. For that reason, the trial court concluded that the state had deliberately
taken actions that caused the ground for termination. Id. at 19-20. No such circumstance exists
in this case. Instead, respondent father was incarcerated first in the Oakland County Jail on a
domestic violence conviction, then in the Macomb County Jail on a CSC conviction, and then in
the Cuyahoga County Jail in Ohio on a sexual battery conviction. The service worker was
unable to provide services because those jails did not offer either parenting or domestic violence
classes. The state did not “set up” respondent father by providing unattainable services, but
instead, respondent father’s own voluntary criminal actions resulted in his incarceration and
inability to complete the services required for reunification. The state did not put respondent
father in a position where services could not be completed so that he would be unable to fulfill
his parent/agency agreement (PAA), which was the situation in In re B and J. Therefore,
respondent father’s argument is unavailing.

        Furthermore, the record indicates that petitioner did everything it could to provide
services for respondent father. Every time respondent father was transferred to another jail for a
different crime, the service worker contacted the head of services at the jail to determine whether
it offered the services required under the PAA. The service worker testified that every jail
informed him that the services needed were not offered at that jail. Respondent father argues
that the service worker did not make reasonable efforts because the jail in Ohio did, in fact, offer
parenting classes and possibly domestic violence classes. However, the service worker testified
under oath that the director of services at the Cuyahoga County Jail in Ohio said no such services
were available. Any miscommunication between the Michigan Department of Health and
Human Services (DHHS) and the jail should not be attributable to a lack of effort on the part of
DHHS.

        Finally, In re B and J does not apply to the situation in this case because even if DHHS
was responsible for providing respondent father with unattainable services, the grounds for
respondent father’s termination were not based on a failure to complete services. The petition
claimed that termination was proper under MCL 712A.19b(3)(j) and (n)(i), which involve
possible harm to the child. Respondent father’s termination was based predominantly on the fact
that he has an extensive criminal history involving coercive and violent crimes towards women
and children. In fact, respondent father admits on appeal that the statutory grounds exist under
both subsections (3)(j) and (3)(n)(i), and therefore, he cannot now claim that his inability to
obtain services resulted in the termination of his parental rights. The trial court did not clearly
err when it determined that DHHS made reasonable efforts towards reunification.

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        Respondent father also argues that termination of his parental rights was not in the best
interests of the child. We disagree.

        This Court reviews for clear error a trial court’s findings of fact regarding whether
termination is in the child’s best interests. In re JK, 468 Mich 202, 209; 661 NW2d 216 (2003),
citing In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). Whether termination of
parental rights is in the child’s best interest must be proven by a preponderance of the evidence.
In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013).

         Once a statutory ground has been proven, the trial court must find that termination is in
the child’s best interest before it can terminate respondent father’s parental rights. MCL
712A.19b(5); MCR 3.977. In considering whether termination of parental rights is in the best
interests of the child, “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 White,
303 Mich App 701, 713; 846 NW2d 61 (2014). Additionally, the trial court may consider “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. This
Court should also consider the “length of time the child was in care” and “the likelihood that ‘the
child could be returned to her parents’ home within the foreseeable future.” In re
Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015), quoting In re Frey, 297
Mich App 242, 248-249; 824 NW2d 569 (2012).

         “Although the trial court may terminate parental rights in lieu of placement with relatives
if it finds that termination is in the child’s best interests, the fact that the children are in the care
of a relative at the time of the termination hearing is an ‘explicit factor to consider in determining
whether termination was in the children’s best interest.’ ” In re Olive/Metts Minors, 297 Mich
App 35, 43; 823 NW2d 144 (2012), quoting In re Mason, 486 Mich at 164 (citations omitted).
“A trial court’s failure to explicitly address whether termination is appropriate in light of the
children’s placement with relatives renders the factual record inadequate to make a best-interest
determination and requires reversal.” Id.

        The trial court found by a preponderance of the evidence that termination of respondent
father’s parental rights was in the best interest of the child. On appeal, respondent father’s
argument focuses predominantly on the fact that the child is placed with a relative, which is a
best interest factor that weighs against termination. While we agree, as does petitioner and the
lawyer-guardian ad litem, that this factor weighs against termination, the overwhelming majority
of the best interest factors support termination.

        The trial court expressly noted that, under In re Mason, courts must consider that a child
is in relative placement. The trial court explained, “[W]hile placement with a relative weighs
against termination in some cases, this factor in this case is far outweighed by the parent’s failure
to be able to offer this child any permanency, stability or finality. In fact, we don’t even know
where [respondent father] will be after July 14th, 2016 [sic]. He may be on probation, he may not
be able to leave the state of Ohio. He may be incarcerated for--of--for up to five additional
years.” The factual record is adequate under In re Olive/Metts Minors because the trial court
expressly addressed this factor, and therefore, the issue turns only whether the trial court clearly

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erred when, despite the child being in relative placement, it determined that the best interest
factors weighed in favor of termination.

        After reviewing the record, the trial court did not err because the other best interest
factors supported termination. We turn first to the bond between the child and her father. The
child was just over a year old when respondent father was incarcerated. While respondent father
may have had a bond with his child at that time, he was unable to have any contact, apart from
writing letters, with his daughter while he was in jail. By the time the child was three years old,
respondent father was still unable to see his daughter, and he had just pleaded guilty to sexual
battery and was facing up to five more years of incarceration. At the time of the best interest
hearing, any kind of bond had diminished, as the service worker testified on numerous occasions
that the child was developing a strong bond with her maternal relatives. In fact, the child had
begun to call her great-aunt and great-uncle, “Mama and Papa.” Even respondent father’s
psychological evaluation, conducted on May 6, 2015, explained that “there are significant
concerns about the detrimental effect [respondent father’s] incarceration could have in terms of
his bond with [the child], who is not even two years of age.” Given respondent father’s
persistent incarceration and uncertain future, the child’s bond with her maternal relatives will
grow stronger, and her bond with her father will only become weaker, and therefore, the first
best interest factor weighs in favor of termination.

        The next factor involves a parent’s parenting ability, and the trial court determined that,
despite respondent father having taken a parenting course, respondent father had demonstrated
that he was not ready to parent his child. When asked what specific parenting skills respondent
father had learned, he could not provide more than generalized statements and a declaration that
he needs to stay out of trouble. The trial court also noted at the termination hearing respondent
father’s psychological report, which indicated that his “operational judgment appear[ed] to be
impaired based upon his history of domestic violence.” Even if respondent father had begun to
take positive steps towards parenting his child, the psychological evaluation revealed that many
of respondent father’s issues were unresolved, and there was a high likelihood that he would
continue his criminal ways. See In re Jones, 286 Mich App 126, 129-130; 777 NW2d 728
(2009) (holding that termination was in the child’s best interest even though the parent “took
positive steps to address issues concerning anger” by attending classes because a psychological
evaluation concluded that parent’s issue was unresolved).

       Moreover, a parent’s history as a perpetrator of domestic violence is an important
consideration when determining a child’s best interests. In re White, 303 Mich App at 714.
Respondent father has an extensive history of domestic violence beginning in 2007, and his third
occurrence of domestic violence happened after the child was born, further reflecting on his
parenting ability. Therefore, these factors weigh in favor of termination.

       The trial court concluded that even though the child is in relative placement, her need for
permanency, stability, and finality “far outweighed” the fact that the child was placed with a
maternal relative. In In re VanDalen, 293 Mich App 120, 141; 809 NW2d 412 (2011), this Court
concluded that the children at 3½ years old and 10 months old, who “were thriving and
progressing,” required a home where they could continue to receive stability and permanency
with foster parents willing to adopt them. Here, as in In re VanDalen, the child is also


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approximately 3½ years old, and her need for stability, permanency, and finality far outweighs
the fact that she is currently with a relative.

        Numerous other factors also weigh in favor of termination. At the best interest hearing, it
was unknown when respondent father would be released from jail. More importantly,
respondent father’s criminal history against women and children, including a CSC charge against
a minor child, shows respondent father would be unlikely to provide the child the kind of safe
environment that she has with her maternal relatives. As it stands, the child is thriving in her
current placement and is developing normally. She has a significant bond with her maternal
relatives, and they wish to adopt the child. Therefore, these factors weigh in favor termination.

        The final factors to consider are the length of time the child has been in care and whether
she could be returned in the foreseeable future. Both factors favor termination. First, the child
has been with her maternal relatives for more than half her life. The record indicates that, at the
time of the best interest hearing, respondent father was unsure when he would be released from
jail or if he would even be allowed to leave the state of Ohio. Even if he was released, his
psychological evaluation and inability to complete services while incarcerated proved that a
substantial amount of time would be needed before the child could be returned to respondent
father. Therefore, it is highly unlikely that the child would be able to be returned to her father in
the foreseeable future, and this factor further weighs in favor of termination.

        While the child may be in relative placement, this factor is not dispositive. In re
Olive/Metts Minors, 297 Mich App at 43. Given the majority of best interest factors support
termination, the trial court did not clearly err when it concluded that termination was in the best
interest of the child.

       Affirmed.

                                                              /s/ Michael J. Kelly
                                                              /s/ William B. Murphy
                                                              /s/ Amy Ronayne Krause




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