            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                                                                    UNPUBLISHED
In re AFFLECK/KUTZLEB/SIMPSON, Minors.                              August 15, 2019

                                                                    No. 347045
                                                                    Oakland Circuit Court
                                                                    Family Division
                                                                    LC No. 2017-852703-NA


Before: LETICA, P.J., and M. J. KELLY and BOONSTRA, JJ.

PER CURIAM.

        Respondent-mother (respondent), appeals by right an order terminating her parental
rights to her three minor children, KPA, BEK, and BAS, under MCL 712A.19b(3)(c)(i), (g) and
(j).1 We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        In April 2017, petitioner filed a petition to remove the children from respondent’s care
after respondent and BAS’s father had a multiple-day “bender” in a hotel room with the children
present, during which episode respondent drank alcohol, used illicit substances, and was arrested
for possession of Xanax and heroin.2 The children were not fed properly and during the episode
were surrounded by drug paraphernalia and needles.




1
  The fathers of KPA and BAS were also respondents in the proceedings below and had their
parental rights terminated; however, they are not parties to this appeal. A separate petition was
filed concerning BEK’s father’s parental rights; his case was not concluded at the time the trial
court issued its termination order in this matter. BEK’s father is also not a party to this appeal.
2
  The petition also cited five previous matters involving respondent or BAS’s father for issues
including improper supervision, physical abuse, and substance abuse. Petitioner noted that
BAS’s meconium screen at birth was positive for THC, Phencyclidine, amphetamines, morphine,
and methadone.



                                                -1-
        Respondent agreed to a service plan to address her substance abuse and improper
supervision of the children, but until a supplemental petition seeking termination was filed in
April 2018, she made very little progress. She entered a methadone treatment program for her
heroin addiction, but continued to use illicit substances in addition to her prescribed methadone.
She missed 89 out of 122 drug screens between the filing of the initial and supplemental
petitions. She also tested positive for marijuana four times, tested positive for amphetamines in
January 2018, and tested positive for amphetamines, cocaine, and Xanax in March 2018.
Moreover, because she did not comply with her criminal probation requirement to remain
substance-free, she was jailed for several months in early 2018. As a result of her lack of
compliance with drug screening requirements and her incarcerations, she missed parenting time
with her children.

       The supplemental petition seeking termination of respondent’s parental rights was filed
on April 10, 2018. Although respondent demonstrated more progress with the service plan after
the supplemental petition was filed, she still tested positive for amphetamines at back-to-back
drug screens in August 2018, just before the beginning of the termination hearings. By the end
of the termination hearings in October 2018, respondent had only demonstrated less than 3
months of continuous sobriety. The children’s foster care worker opined that at least six months
of sobriety in a methadone program is required to measure success. And respondent’s
psychologist, Kathy Spatafora, testified that a brain addicted to heroin only shows changes after
two years of complete sobriety. Therefore, she opined, respondent was still at “ground zero.”

        Between the filing of the supplemental petition and the termination hearing in August
2018, respondent regularly attended visitation with her children. Her behavior with the older two
children was appropriate, but there were reports that she failed to properly supervise BAS at the
park and near a street. Respondent claimed that she was employed at a restaurant, but had failed
to verify her employment to petitioner. Moreover, she was still seeking housing. Respondent’s
mother expressed concern that respondent could not yet financially support the children with
only a part-time job.

        At a combined statutory grounds for termination/best-interest hearing that concluded in
October 2018, the trial court found that statutory grounds to terminate respondent’s parental
rights existed, stating with regard to MCL 712A.19b(3)(c)(i):

       Undoubtedly, more than 182 days have passed since the issuance of Respondent-
       Mother’s initial dispositional order. At the time the supplemental petition was
       filed, Respondent-Mother had made no progress on her [service plan]. She
       repeatedly missed drug screens, admittedly relapsed, and tested positive for a
       variety of substances including, heroin, marijuana, cocaine, amphetamines, and
       Xanax all while receiving substance abuse treatment and counseling. In addition,
       Respondent-Mother had no housing, no employment, had not completed
       parenting classes, and failed to complete mental health treatment as
       recommended. Respondent-Mother’s substance abuse issues date back 15 years
       and she failed to comply with and benefit from services. Given the length of time
       that has passed and the lack of benefit and compliance with services the court
       finds that there is no reasonable likelihood that the conditions will be rectified
       within a reasonable time considering the children’s ages.

                                               -2-
               Thus, the court finds by clear and convincing evidence that more than 182
       days have passed since issuance of the dispositional order and Respondent-
       Mother has failed to rectify the conditions that brought her children into care and
       there is no reasonable likelihood that the conditions will be rectified within a
       reasonable time considering the children’s ages.

The trial court found that the same evidence also supported termination under
MCL 712A.19b(3)(g) and (j), noting that

       Respondent-Mother does not have suitable housing or employment or a suitable
       plan for the children. And there was no evidence that she would be able to
       provide suitable housing for the children in the reasonably foreseeable future.

               Moreover, the facts do not show that there is a reasonable expectation that
       Respondent-Mother would be able to provide proper care and custody within a
       reasonable amount of time considering the children’s ages. She has a long history
       of substance abuse problems that she has had difficulty managing. She repeatedly
       relapsed during this case while receiving services and treatment.

        Regarding the best-interests of the children, the trial court noted that KPA and BEK were
placed with their maternal grandmother; BPA was placed in non-relative foster care. The trial
court found that the maternal grandmother had an appropriate home, was bonded with KPA and
BEK, and was willing to adopt them, although the children also shared a bond with respondent.
The court found that the “children’s needs for stability, permanency, and finality . . . are not
outweighed by the bond or relative placement.” Regarding BPA, the trial court noted that her
foster mother was willing to adopt her, that BPA had demonstrated behavior problems in
response to respondent’s parenting time visits, and that maintaining her current placement was in
her best interests.

       The trial court issued an order terminating respondent’s parental rights to the three
children. This appeal followed.

                     II. STATUTORY GROUNDS FOR TERMINATION

       Respondent argues that the trial court erred by holding that clear and convincing evidence
supported termination of her parental rights under MCL 712A.19b(3)(c)(i), (g), and (j). We
disagree. We review for clear error a trial court’s determination regarding statutory grounds for
termination. MCR 3.977(K); In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). “A
finding of fact is clearly erroneous where the reviewing court is left with a definite and firm
conviction that a mistake has been made.” In re Terry, 240 Mich App 14, 22; 610 NW2d 563
(2000). When reviewing a trial court’s findings of fact, we give deference to the special
opportunity of the trial court to judge the credibility of the witnesses. In re Fried, 266 Mich App
535, 541; 702 NW2d 192 (2005).

       The trial court found that termination of respondent’s parental rights was justified under
MCL 712A.19b(3)(c)(i), (g), and (j), which permit termination under the following
circumstances:

                                                -3-
               (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, although, in the court’s discretion, financially able to do
       so, 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.

         The trial court did not clearly err by finding that clear and convincing evidence supported
termination of respondent’s parental rights under MCL 712A.19b(3)(c)(i). Respondent does not
dispute that the statutory 182-day period had passed by the time of the termination hearing.
Respondent has a nearly two-decade long history of substance abuse, including periods of
sobriety and relapse. During the pendency of the proceedings below, she missed the majority of
her drug screens and tested positive for various substances several times, including testing
positive for amphetamines at back-to-back drug screens in August 2018, just before the
beginning of the termination hearings.3 Respondent only demonstrated about 2-1/2 months of
sobriety before the hearings ended. The foster care worker opined that at least six months of
sobriety in a methadone program is required to measure success. And Spatafora testified that,
based on the heroin-addicted brain’s need for two years of complete sobriety, respondent was
still at “ground zero.” Further, respondent was unable to verify her claimed employment and
still lacked housing at the time of the termination hearing. Given respondent’s long substance
abuse history and high risk of relapse after only minimal sobriety, as well her lack of ability to
support and supervise the children, the trial court did not clearly err by finding that there was no
reasonable likelihood that respondent would resolve her continuing issues within a reasonable
time. Clear and convincing evidence supported termination under MCL 712A.19b(3)(c)(i).


3
  Respondent relies on her explanation that she mistakenly took KPA’s medication, but the trial
court did not find that explanation credible. We defer to the trial court’s credibility
determinations. Dep’t of Community Health v Risch, 274 Mich App 365, 375; 733 NW2d 403
(2007) (“credibility determinations are within the province of the fact-finder, and it is not the role
of this Court to second-guess those findings or substitute its judgment”).


                                                 -4-
         Respondent argues that the trial court acted hastily by terminating her parental rights after
only 19 months and that she should have been given more time. But MCL 712A.19b(3)(c)(i)
authorizes termination for failure to rectify the conditions leading to the adjudication after as
little as 182 days. “[T]he 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, 187 Mich App 644, 647; 468
NW2d 315 (1991), citing MCL 712A.19b(3)(c)(i). Respondent was afforded more than three
times the statutory period to resolve the conditions that led to the children’s adjudication, and the
trial court did not clearly err by concluding that respondent still was not reasonably likely to
resolve her issues within a reasonable period of time.

        Respondent also argues that instead of ordering the supplemental petition, the trial court
should have ordered additional mental health services. If a respondent takes issue with the
services provided, there exists a responsibility on the part of the respondent to raise objections to
the services offered when the trial court adopts a case-service plan or soon thereafter. Mason,
486 Mich at 152. Respondent does not point to any request that she made for additional mental
health services. Respondent completed a mental health screening at Oakland Community Health
Network, but failed to follow up by making an intake appointment for mental health treatment
services. When respondent contemplated suicide in March 2018, the foster care worker directed
her to Common Ground or the emergency room, but she went to neither. Moreover, respondent
thereafter denied any suicidal ideations. Respondent has not demonstrated that she was denied
additional services that would have allowed her to address the issues that led to the children’s
removal; rather, the record shows that respondent had no interest in engaging in mental health
treatment.

       If at least one ground for termination exists, this Court need not consider the additional
grounds on which the trial court based its decision. In re HRC, 286 Mich App 444, 461; 781
NW2d 105 (2009). Nevertheless, the evidence also supported termination of respondent’s
parental rights under MCL 712A.19b(3)(g) and (j).

        A parent’s failure to comply with a service agreement is evidence of the parent’s failure
to provide proper care and custody of the child. In re JK, 468 Mich 202, 214; 661 NW2d 216
(2003). The children were taken into care after respondent’s arrest for possession of Xanax and
heroin, despite numerous prior cases and services having been offered to address her issues with
substance abuse and improper child supervision. Nearly a year later, she was again incarcerated
for a violation of probation related to her continued drug use. After the supplemental petition
and her release from jail, and although respondent began completing more drug screens,
regularly attending substance abuse treatment, and visiting the children, other service plan
requirements remained unfulfilled. Respondent did not maintain her sobriety, cooperate with the
terms of her probation, or obtain housing. Her caseworker was also unable to verify
respondent’s claims of employment and completion of a parenting class. Moreover, the court
had ordered respondent to utilize a different treatment facility that would be willing to wean her
off methadone, but respondent continued to receive daily methadone treatments. Given the
length of the proceedings and respondent’s failure to comply with her service plan, there was no
reasonable expectation that she would be able to provide proper care and custody within a
reasonable time considering the children’s ages. Clear and convincing evidence supported the
termination of respondent’s parental rights under MCL 712A.19b(3)(g).
                                                 -5-
         The record also establishes that, based on respondent’s conduct or capacity, the children
were reasonably likely to be harmed if they were returned to her. The trial court cited
respondent’s long history of substance abuse, repeated relapses, lack of suitable housing and
employment, and lack of a plan for the children. Numerous witnesses testified that respondent’s
lack of stability was a risk of harm to the children. As respondent moved in and out of BAS’s
life, the child exhibited behavioral regression and medical issues that doctors attributed to stress.
Moreover, respondent made suicide threats during the proceedings, but failed to seek treatment
for those feelings and, by the time of the termination hearings, she denied that she had actually
been suicidal. Given these facts, we are not left with a definite and firm conviction that the trial
court made a mistake when it found a statutory basis for termination under MCL 712A.19b(3)(j).

                           III. BEST-INTEREST DETERMINATION

       Respondent next argues that the trial court erred by concluding that termination of her
parental rights was in the children’s best interests. We disagree.

         Once a statutory ground for termination is established, the trial court shall order
termination of parental rights if it finds that termination is in the child’s best interests.
MCL 712A.19b(5). “[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 76, 90; 836
NW2d 182 (2013). The trial court should weigh all the evidence available to it in determining
the child’s best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). Factors
relevant to a determination of the child’s best interests include the child’s bond to the parent, the
parent’s parenting abilities, the parent’s compliance with his or her case-service plan, the
parent’s history of visitation with the child, the child’s need for permanency, stability, and
finality, the advantages of a foster home over the parent’s home, and the possibility of adoption.
White, 303 Mich App at 713-714; In re Olive/Metts, 297 Mich App 35, 42; 823 NW2d 144
(2012). In addition, our Supreme Court has explained that a child’s placement with relatives is
“an explicit factor to consider in determining whether termination was in the children’s best
interests.” Mason, 486 Mich at 164. We review for clear error a trial court’s best-interest
determination. Id. at 152.

        A preponderance of the evidence supports the trial court’s determination that termination
of respondent’s parental rights was in the children’s best interests. The record demonstrates that
respondent loves her three children and shares a bond with them. Her severe substance abuse
issues, however, had affected all of the children. According to Spatafora, who evaluated KPA,
the child appeared to have been “put in the position of being an adult.” She was attending
counseling. In supervised settings with the two older children, respondent was loving, attentive,
and appropriate, but according to the foster care worker who supervised visitation with BAS,
intervention was repeatedly required because respondent failed to appropriately monitor the
toddler.

       At the beginning of the case, respondent spent 30 days in jail. For nearly a year
afterward, respondent did not comply with her service plan. She failed to attend drug screens
consistently and she continued to use illicit substances. She was then jailed again for violating
her probation. Respondent could not visit the children while she was incarcerated or unable to
provide a negative drug screen. As a result, significant periods of time passed when the children

                                                -6-
did not see respondent. When visitation resumed, BAS’s behavior and physical health
deteriorated. Moreover, respondent refused to acknowledge any possible effect on BAS related
to her own inconsistency.

         Spatafora and the children’s foster care workers opined that any bond that respondent
shared with the children was outweighed by their need for permanency, stability, and finality.
Spatafora explained that even though KPA and BEK were placed with the maternal grandmother,
instability resulted from the mere possibility that respondent would reenter their lives and then
leave again. And BAS was exhibiting behavior and health problems. BAS’s foster mother
testified that it was not in BAS’s best interests to be confused for more than a year about the
identity of her family and questioning where she is “going in life” and what her “day-to-day is
going to be.” BAS’s foster care worker opined that it would be a disruption to return BAS to
respondent.

        KPA and BEK, as well as BAS, were living in appropriate homes with people who were
willing to adopt them. BAS stated that she preferred to stay with her foster mother; she would be
excited to see respondent for visitation, but was “fine” when respondent would leave. In contrast
to the children’s current stable homes, respondent had yet to find a home during the 19 months of
the proceedings. Her mother expressed concerns that respondent could not financially support
the children on her own. Given the children’s need for permanency, a safe home, and a parent
who could put their needs first, the trial court did not clearly err by finding that termination of
respondent’s parental rights was in the children’s best interests. Mason, 486 Mich at 164.

       Respondent argues that the trial court refused to “meaningfully consider the possibility of
a guardianship.” The purpose of a guardianship is to avoid the termination of parental rights,
Mason, 486 Mich at 168-169, and it allows a child to maintain a relationship with a parent when
placement with the parent is not yet possible, In re TK, 306 Mich App 698, 705; 859 NW2d 208
(2014). A trial court is not required to establish a guardianship with a relative in lieu of
terminating parental rights if it is not in the children’s best interests. In re McIntyre, 192 Mich
App 47, 52-53; 480 NW2d 293 (1991).

       Although the maternal grandmother and respondent testified that they would support a
guardianship for KPA and BEK, the foster care worker explained that guardianship was not
considered by petitioner for the children. She testified that guardianship is not preferred for
children under 10 years old because it is not necessarily permanent—the guardian can later
terminate it. KPA was eight years old and BEK was five years old. Spatafora similarly opposed
a guardianship. Given respondent’s long history of substance abuse and relapses, she had not
demonstrated a likelihood of long-term stability to warrant a guardianship. Moreover, Spatafora
opined that respondent’s lack of progress in this case demonstrated additional lack of stability.
Again, record evidence demonstrated the children’s significant need for stability. The trial court
did not err when it relied on Spatafora’s recommendation against a guardianship based on the
children’s need for stability. McIntyre, 192 Mich App at 52.




                                                -7-
Affirmed.



                  /s/ Anica Letica
                  /s/ Michael J. Kelly
                  /s/ Mark T. Boonstra




            -8-
