                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                    UNPUBLISHED
In re A. A. COLE, Minor.                                            June 13, 2017

                                                                    No. 335518
                                                                    Wexford Circuit Court
                                                                    Family Division
                                                                    LC No. 15-025972-NA


Before: GADOLA, P.J., and TALBOT, C.J., and GLEICHER, J.

PER CURIAM.

       The circuit court terminated respondent-mother’s parental rights to her young daughter,
who had been in foster care since birth, based on respondent’s long history of drug addiction and
repeated incarcerations. Although respondent diligently followed her treatment plan, there is still
no indication that she will be able to provide proper care and custody for her child within a
reasonable time. We affirm.

                                       I. BACKGROUND

        Respondent has a long history of drug abuse and a significant criminal record marked by
repeated incarcerations. She is also no stranger to the child protective system. Respondent gave
birth to her first child, TC, in 2000. Child Protective Services (CPS) substantiated a claim
against respondent based on drug use in 2005, and respondent received several years of services.
CPS would have initiated a second proceeding against respondent in 2008, but she voluntarily
arranged a guardianship for TC with his aunt.

        Respondent spent a year before AAC’s conception imprisoned for an unarmed robbery
conviction. Respondent “did quite well” in the “first couple of months” following her release.
When respondent discovered she was pregnant, however, she became overwhelmed and began
actively using opiates. AAC was born with codeine, dilaudid, and morphine in her system and
suffered withdrawal symptoms. AAC remained hospitalized for treatment and respondent was
arrested because her confirmed drug use was a parole violation. The Department of Health and
Human Services (DHHS) took AAC into care and placed her in a nonrelative foster home.

         Respondent was released from jail 45 days later. During her brief stint of freedom,
respondent engaged in three supervised parenting time sessions. Respondent was then arrested
for selling heroin and admitted that she was using substances too. Respondent is now serving an
18-month to 30-year sentence and is housed in a residential treatment center. According to the

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Michigan Offender Tracking Information System, respondent’s earliest possible release date is
June 20, 2017.

        By all accounts, respondent has done well during her current incarceration. She has taken
parenting classes, worked toward earning her GED, and actively engaged in substance abuse
counseling and other rehabilitative services. Respondent’s prospects upon release are more
guarded, however. Respondent expressed that she intended to live with her mother upon release
and earn a stipend from the state for serving as her mother’s caretaker. Respondent’s mother
suffers from mental illness and, as a result, respondent spent time in the foster care system as a
child. Respondent’s counselor testified that respondent “would be at a risk for relapse” if she
moved in with her mother because it could “re-traumatize[] her.” The foster care caseworker
agreed, opining that respondent’s mother is not “a good influence on her.”

       The caseworker also noted that respondent had actively participated in services while
incarcerated. However, she was concerned about respondent’s ability to maintain sobriety upon
her release. She emphasized that respondent “did well in an environment where she was
supervised,” but in the outside world, respondent had exhibited “a history of choosing
substances, and other things, more than taking care of her children.” Moreover, respondent
would need to find suitable housing and employment before being able to care for her child.
Demonstrating an ability to properly and safely care for AAC would take respondent “a
minimum of a year” in the caseworker’s opinion.

     Based on this evidence, the circuit court terminated respondent’s parental rights under
MCL 712A.19b(3)(c)(i), (g), and (j). Respondent appeals.

                                  II. STATUTORY GROUNDS

        Respondent challenges the evidentiary support for the statutory termination grounds cited
by the circuit court. Pursuant to MCL 712A.19b(3), a circuit court “may terminate a parent’s
parental rights to a child if the court finds, by clear and convincing evidence” that at least one
statutory ground has been proven. The petitioner bears the burden of proving that ground. MCR
3.977(A)(3); In re Trejo, 462 Mich 341, 350; 612 NW2d 407 (2000). We review a circuit
court’s factual finding that a statutory termination ground has been established for clear error. In
re Rood, 483 Mich 73, 90-91; 763 NW2d 587 (2009). “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.” In re Moss, 301
Mich App 76, 80; 836 NW2d 182 (2013) (quotation marks and citation omitted). “Clear error
signifies a decision that strikes us as more than just maybe or probably wrong.” In re Williams,
286 Mich App 253, 271; 779 NW2d 286 (2009).

     The circuit court terminated respondent’s parental rights under the following factors of
MCL 712A.19b(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:


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               (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.

        The circuit court clearly erred in relying upon factor (j) in terminating respondent’s
parental rights. In this regard, the court emphasized that respondent would require an additional
year or two of services after her prison release to be ready to care for AAC. The court found that
it would be harmful to AAC to remove her “from the only home [she] has ever known” at the
age of three and four and place her for the first time with her mother. The statute, however,
guards against harm to the child “based on the conduct or capacity of the child’s parent.”
Terminating a parent’s rights based on the potential of harm simply because the child has aged
while in care and would be most comfortable if he or she remained in that placement would
unreasonably interfere with a parent’s fundamental liberty interest “in the care, custody, and
management” of his or her child. See Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L
Ed 2d 599 (1982). And it runs contrary to the plain language of the statute.

       Despite this error, relief is not warranted. Termination under MCL 712A.19b(3) need be
based on only one statutory ground. Here, the circuit court properly found termination
supportable under two.

        Respondent did not rectify the conditions that led to adjudication and the DHHS
established that she would be unable to do so within a reasonable time, supporting termination
under factor (c)(i). The court took jurisdiction over AAC based on respondent’s long history of
drug abuse and repeated incarcerations, which left her unable and unavailable to care for her
child. Respondent remained incarcerated 18 months later when the circuit court terminated her
rights. At termination, respondent’s earliest release date was still eight months away. Indeed,
respondent remains incarcerated as of the issuance of this opinion. There is no guarantee that
respondent will be released on June 20, 2017. Even if respondent is released on her earliest
release date, respondent would require at least another year of services to establish her sobriety
under real-world conditions. This simply is not a reasonable time for AAC to wait in care.
Accordingly, the circuit court did not clearly err in terminating respondent’s parental rights on
this ground.

       Termination was also supportable under factor (g). Respondent has never provided
proper care or custody for AAC. Respondent was arrested and incarcerated while AAC
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remained in the hospital following her birth. Accordingly, the child was placed directly into
foster care. Even if respondent is released on June 20, she will require at least another year to
find suitable housing and employment and to continue her recovery from substance abuse.
Respondent’s only plan for employment and housing is to live with and care for her mother, a
plan deemed unsuitable by respondent’s counselor and the caseworker. As such, respondent will
not be able to provide proper care and custody for AAC within a reasonable timeframe.

                                      III. BEST INTERESTS

        Respondent further contends that termination of her parental rights was contrary to
AAC’s best interests. “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, 297 Mich App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5).
“[W]hether termination of parental rights is in the best interests of the child must be proven by a
preponderance of the evidence.” Moss, 301 Mich App at 90. The lower court should weigh all
the evidence available to it in determining the child’s best interests. Trejo, 462 Mich at 356-357.
Relevant factors include “the child’s bond to the parent, the parent’s parenting ability, [and] the
child’s need for permanency, stability, and finality. . . .” Olive/Metts, 297 Mich App at 41-42
(citations omitted). “The trial court may also consider 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, [and] the children’s well-being while in care. . . .” In re White, 303 Mich App 701, 714;
846 NW2d 61 (2014). “With respect to the trial court’s best-interests determination, we place
our focus on the child rather than the parent.” In re Schadler, 315 Mich App 406, 411; 890
NW2d 676 (2016), citing Moss, 301 Mich App at 87.

       Here, the evidence preponderated in favor of termination. AAC shares no bond with her
mother. Respondent has not seen her daughter since July 2015, and had only three visits with
AAC before being incarcerated. AAC is doing “exceptionally well” in her foster care placement.
The DHHS presented evidence that infants born addicted to controlled substances face many
developmental obstacles. With the care of her foster mother, however, AAC was meeting her
milestones. And AAC’s foster parent wished to adopt her. Although respondent had actively
engaged in services while incarcerated, her prognosis for success after release was guarded and
speculative. Waiting for respondent to demonstrate sobriety would deny AAC needed
permanency and stability. Accordingly, the circuit court properly determined that termination
was in AAC’s best interests.

       We affirm.




                                                              /s/ Michael F. Gadola
                                                              /s/ Michael J. Talbot
                                                              /s/ Elizabeth L. Gleicher



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