                          STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re HENRY, Minor.                                                  April 7, 2016

                                                                     No. 330305
                                                                     Calhoun Circuit Court
                                                                     Family Division
                                                                     LC No. 2015-002186-NA


Before: BOONSTRA, P.J., and WILDER and METER, JJ.

PER CURIAM.

       Respondent appeals by right the trial court’s order terminating her parental rights to the
minor child under MCL 712A.19b(3)(b)(ii) (failure to prevent injury or abuse), (3)(g) (failure to
provide proper care and custody), and (3)(j) (reasonable likelihood of harm). We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

         Respondent’s child was born in 2015 with amphetamine, methamphetamine, and opiates
in her system, and suffered severe withdrawal symptoms and respiratory distress almost
immediately after her birth. Respondent and the child’s putative father1 were “squatting”
(illegally occupying) a home when the child was born and were in the process of being evicted.
Respondent was unemployed and had no source of income. Both respondent and the child’s
father had open criminal cases for controlled substance possession. The child was placed under
the care and supervision of petitioner two days after her birth, and remained in the hospital due to
her medical issues. The caseworker assigned to respondent testified at the preliminary hearing
that respondent maintained telephone contact with the hospital until July 29, 2015, but had
missed a meeting on July 31, 2015 and had ceased contacting the hospital. The caseworker had
attempted to make contact with respondent at her last known residence but discovered that she
no longer lived there and had left no contact information. Respondent never attended any face to
face meetings with any caseworkers or hospital employees or attended the medical procedures
her child required, including the placement of a shunt in the child’s brain. Respondent never
completed any services required by petitioner, including substance abuse screening, parenting
classes, counseling, and psychological evaluation. Respondent did attend a hearing on


1
 The trial court also terminated the parental rights of the child’s putative father, but he is not a
party to this appeal.


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September 2, 2015, and stipulated to an order allowing petitioner to consent to medical treatment
for the child. The child was placed in non-relative foster care on October 9, 2015. The child has
numerous medical needs, which the foster care providers are equipped to meet by working with
several specialists. Respondent never called the foster home or met with the caseworker or other
employees of petitioner.

         Respondent did not attend the combined adjudication trial and termination hearing on
October 23, 2015, although she was represented by counsel. The foster care caseworker told the
trial court that she had been informed that respondent had entered a two-week inpatient drug
program on September 15, 2015, although this information came from the child’s maternal
grandmother, not respondent or the child’s father, and could not be verified. The caseworker
testified that the child was then hospitalized with bronchiolitis and had been diagnosed with
“conjunctivitis, genesis of the corpus callosum, a cyst on her brain, candida infection,
hydrocephalus, seizures and a chromosomal deletion syndrome.” The caseworker testified that
the foster parents and the child appeared to be bonded and that the child turns her head when she
hears one of the foster parents speak. The caseworker testified that she believed termination was
in the best interests of the child.

        The trial court held that there was sufficient evidence to enter an order terminating
respondent’s parental rights. With respect to MCL 712A.19b(3)(b)(ii) (failure to prevent injury
or abuse), the trial court stated that, although this statutory ground may have been incorrectly
pleaded because (3)(b)(i) (parent caused physical injury) was more specific to the facts, there
was also sufficient evidence to support (3)(b)(ii). The trial court reasoned that respondent, while
knowingly pregnant, had stopped taking her prenatal vitamins, had failed to regularly attend
prenatal visits, and had caused injury to the child. Moreover, the trial court stated that
respondent took numerous illicit substances that harmed the child, who was born addicted to a
plethora of substances and experienced “the pain of physical injury that she suffered from being
born addicted.” The trial court further explained that respondent caused the injury, that
respondent had the opportunity to prevent the injury by not taking illicit substances, and that she
did so anyway. The trial court found that, given the circumstances of respondent’s addiction and
the child’s very special needs, there was a reasonable likelihood of harm in the foreseeable future
if the child was placed with respondent. Thus, the court concluded that the statutory ground was
met.

        With respect to (3)(g) (failure to provide proper care and custody) and (3)(j) (reasonable
likelihood of harm), the trial court held that there was sufficient proof to meet these statutory
grounds, and explained that these grounds were closely related. With respect to both grounds,
the trial court reasoned that respondent was not capable of providing the proper care or custody
for the child because of the extreme nature of respondent’s substance abuse and drug addiction.
For these same reasons and because of the child’s special needs, the trial court found that there
was not a reasonable expectation that respondent would be able to provide proper care of custody
within a reasonable time considering the child’s age and that there was a reasonable likelihood of
harm if the child were to be returned to respondent’s care.

       This appeal followed.



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                                  II. STANDARD OF REVIEW

       Respondent’s sole argument on appeal is that her parental rights should not have been
terminated because she has a constitutional right to parent her child. Because respondent’s
argument is unpreserved, we review the issue for plain error affecting substantial rights. In re
Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008), citing People v Carines, 460 Mich 750,
763, 774; 597 NW2d 130 (1999).

                                          III. ANALYSIS

        Although respondent is generally correct that parents have a fundamental right to parent
their children, the trial court did not err in this case in terminating respondent’s parental rights to
the child.

        It is beyond dispute that parents have a fundamental right regarding the care, custody, and
control of their child. See In re Sanders, 495 Mich 394, 409; 852 NW2d 524 (2014). However,
“[a] parent’s right to control the custody and care of her children is not absolute, as the state has
a legitimate interest in protecting ‘the moral, emotional, mental, and physical welfare of the
minor’ and in some circumstances ‘neglectful parents may be separated from their children.’ ”
Id. at 409-410, quoting Stanley v Illinois, 405 US 645, 652; 92 S Ct 1208; 31 L Ed 2d 551
(1972). Before a parent is deprived “of the right to direct the care, custody, and control of their
children,” they have “the right to an adjudication,” Sanders, 495 Mich at 418, and parents are
“constitutionally entitled to a hearing on their fitness before their children are removed from their
custody,” id. at 412 (quotation marks and citation omitted). When jurisdiction is assumed over
the child, the trial court “has broad authority in effectuating dispositional orders” that are
“appropriate for the welfare of the juvenile and society in view of the facts proven and
ascertained.” Id. at 406 (emphasis added). Thus, once a court assumes jurisdiction over a child,
the State’s interests in protecting the child prevail over the parent’s constitutional rights. Id. at
406, 409-410.

        Here, it is undisputed that respondent had a constitutional right to the care, custody, and
control of her child. Sanders, 495 Mich at 409. However, the State also had an interest in
protecting “the moral, emotional, mental, and physical welfare” of the minor child, Sanders, 495
Mich at 409-410, and, when it was alleged that respondent was unfit to parent the minor child,
she was entitled to a hearing regarding her fitness as a parent before the trial court assumed
jurisdiction over the child. Id. at 412, 418. Respondent was afforded a jurisdictional hearing,
and she concedes on appeal that the trial court properly took jurisdiction over the minor child.
Once the trial court assumed jurisdiction over the minor child, the State’s interests in protecting
her prevailed over respondent’s constitutional rights. Id. at 406, 409-410. While respondent
argues on appeal that “a great disservice” occurred when the trial court terminated her parental
rights at the initial dispositional hearing, the trial court was required to terminate respondent’s
parental rights at the dispositional hearing because: (1) the petition requested termination; (2) the
trial court found by a preponderance of the evidence that one or more of the grounds for
assuming jurisdiction under MCL 712A.2(b) were established; (3) the trial court found on the
basis of clear and convincing legally admissible evidence that at least one statutory ground for
termination was proven; and (4) the trial court found that termination was in the minor child’s
best interests. MCR 3.977(E) (providing that “the court shall order termination of the parental

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rights of a respondent at the initial dispositional hearing” if MCR 3.977(E)(1) through (4) are
met); Lamkin v Engram, 295 Mich App 701, 709; 815 NW2d 793 (2012) (“ ‘Shall’ indicates a
mandatory provision”). Respondent does not challenge the procedures, statutory grounds, or
best interest determination in any way.2 Because respondent was determined to be unfit as a
parent and because her rights yield to the State’s interest in protecting the minor child,
respondent’s constitutional rights with respect to the minor child were not violated, Sanders, 495
Mich at 406, 409-410, and there was no plain error, Utrera, 281 Mich App at 8-9.

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Kurtis T. Wilder
                                                            /s/ Patrick M. Meter




2
  We note that were we to review the trial court’s determinations regarding statutory grounds and
the best interests of the child, we would find no clear error in, at a minimum, the trial court’s
determinations that the statutory grounds found in MCL 712A.19b(3)(g) were proven by clear
and convincing evidence, and that the termination was in the child’s best interests. In re
VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011); MCR 3.977(K); In re Olive/Metts,
297 Mich App 35, 40; 823 NW2d 144 (2012).


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