                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                      UNPUBLISHED
In re K. M. LING, Minor.                                              October 11, 2016

                                                                      No. 332125
                                                                      Oakland Circuit Court
                                                                      Family Division
                                                                      LC No. 2014-822996-NA


Before: SAAD, P.J., and JANSEN and M. J. KELLY, JJ.

PER CURIAM.

        Respondent father appeals as of right the order terminating his parental rights to his
minor child, KL, pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication
continue to exist), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood
that child will be harmed if returned to parent). We affirm.

        Respondent father first argues that the trial court erred when it failed to inquire regarding
American-Indian heritage at the initial preliminary hearing pursuant to the Indian Child Welfare
Act (ICWA), 25 USC 1901 et seq. We agree, but hold that this error did not affect respondent
father’s substantial rights.

        Respondent father failed to preserve the issue by raising it in the trial court. See In re TK,
306 Mich App 698, 703; 859 NW2d 208 (2014). While respondent father was not in attendance
at the initial preliminary hearing, respondent mother did not raise the issue with the court and
respondent father never raised the issue at any point during the proceedings. Therefore this issue
is not preserved for appeal. See id.

        Unpreserved issues are reviewed for plain error affecting the respondent’s substantial
rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); In re Utrera, 281
Mich App 1, 8-9; 761 NW2d 253 (2008). In order to avoid forfeiture of the issue, (1) error must
have occurred, (2) the error must have been plain, i.e., clear or obvious, and (3) the plain error
affected the respondent’s substantial rights. Carines, 460 Mich at 763. This third requirement is
satisfied if the respondent can demonstrate prejudice, i.e., that the error affected the outcome of
the lower court proceedings. Id. If the respondent satisfies these three requirements, this Court
will grant reversal when the plain error “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” Id. at 763 (citations and quotation marks omitted; alteration
in original).


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         MCR 3.965(B)(2) provides that at the preliminary hearing, “[t]he court must inquire if
the child or either parent is a member of an Indian tribe.” Respondent father is correct that the
court failed to inquire if he, respondent mother, or KL is a member of an Indian tribe. As a
result, the trial court committed plain error. However, respondent father is unable to demonstrate
that he was prejudiced by this error, i.e., that it affected the outcome of the lower court
proceedings. See Carines, 460 Mich at 763.

        A review of the lower court file indicates that respondent father, respondent mother, and
KL are not of American-Indian heritage, and thus, would not have been entitled to the added
protections set forth in the ICWA. The initial petition for temporary custody states as follows:
“[Respondent mother] explicitly stated that she does not have Native American ancestry on
6/5/2014, and that the child [KL] also [does] not.” The petition also states, “[Respondent father]
explicitly stated that he does not have Native American ancestry on 06/25/2014, and that the
child [KL] also does not.” Under the section entitled “Race,” the petition simply states that KL
is Caucasian, and there is no mention of any American-Indian heritage. The supplemental
petition seeking termination of respondent father’s parental rights only states that KL is “White.”
Furthermore, at no point during the various dispositional review and best-interest hearings did
respondent father or his counsel indicate that he, respondent mother, or KL were of Native
American ancestry. Indeed, respondent father does not claim in his brief on appeal that he has
Native American ancestry or that KL has Native American ancestry.

        Respondent argues that he is entitled to conditional reversal pursuant to the Michigan
Supreme Court’s decision in In re Morris, 491 Mich 81; 815 NW2d 62 (2012). However,
Morris involved two situations in which the trial court had reason to know of a respondent’s or
child’s American-Indian heritage and failed to ensure that the Indian tribe was notified of the
proceedings in accordance with 25 USC 1912(a). Id. at 89. As noted above, the court in this
case had no reason to know that any of the parties involved had American-Indian heritage, and
thus, had no duty to ensure that any Indian tribe was notified of the proceedings. See id.
Because respondent father has not demonstrated that the outcome of the proceeding would have
been different, i.e., that the ICWA would have applied in this case, he is not entitled to a
conditional reversal.

        Respondent father next argues that the trial court erred when it ruled that termination of
his parental rights was in KL’s best interests. We disagree.

        “We review for clear error the trial court’s determination regarding the [child’s] best
interests.” In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). At the beginning of
respondent father’s termination hearing, he waived his right to the statutory basis phase of the
proceedings and entered a no-contest plea to the petition. A hearing was held with regard to the
child’s best interests. On appeal, respondent father again only argues that termination was not in
KL’s best interests.

        After a statutory ground has been proven, the trial court must find that termination is in
the child’s best interests before terminating parental rights. MCL 712A.19b(5); MCR 3.977.
Whether termination of parental rights is in the child’s best interests must be proven by a
preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013).
When determining whether termination is in a child’s best interests, the court should consider

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multiple factors. These factors 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 at 713 (quotation marks and citations
omitted). The court may also consider the parent’s history of domestic violence, compliance
with a case service plan, visitation history, the child’s well-being while in care, and the
possibility of adoption. Id. at 714. Placement of the child with a relative weighs against
termination and must be considered as part of the best-interest determination. In re Olive/Metts,
297 Mich App 35, 43; 823 NW2d 144 (2012).

        Several factors weighed against termination in this case. In regard to KL’s bond with
respondent father, respondent father testified that KL would be excited upon his arrival to visits
and that they had a loving relationship. In addition, as the court acknowledged, KL was placed
with a relative throughout the proceedings, a factor which weighs against termination when
conducting the best-interest analysis. In re Olive/Metts, 297 Mich App at 43. Finally, as
indicated in respondent father’s brief on appeal, the psychologist who performed an evaluation of
respondent father, and the lawyer-guardian ad litem (L-GAL) for KL, recommended against
termination. In her psychological evaluation of respondent father, the court’s clinical
psychologist stated that termination would be premature in light of respondent father’s insight
into his drug addiction and his participation in weekly outpatient group therapy and Narcotics
Anonymous meetings. In addition, the L-GAL recommended against termination on behalf of
the minor child during closing arguments.

         However, the court did not clearly err in concluding by a preponderance of the evidence
that termination was in KL’s best interests. Respondent father’s parenting ability remained in
question at the time of the best-interest hearing due to his ongoing substance abuse. Respondent
father tested positive for narcotics as recently as December 1, 2015, which was after respondent
father attended an inpatient rehabilitation program and only two months before the hearing.
Additionally, while respondent father testified that he is employed, he was not able to afford
child support. In regard to KL’s need for permanency, stability and finality, she had been in the
care of her grandmother for over 1 ½ years at the time of termination. KL never lived with
respondent father or respondent mother and was in need of permanency, stability, and finality
considering her young age. Further, respondent father failed to comply with his parent-agency
agreement. As the court noted, respondent father had only completed 21 of 54 drug screens
since September 2015 and tested positive as recently as December 2015. With regard to
respondent father’s visitation history, while respondent father attended the majority of his
visitations and bonded with KL, he missed several sessions because of his drug addiction.

        For the reasons discussed above, the court did not clearly err in ruling that termination
was in KL’s best interests. While respondent father did have a bond with KL, and KL was
placed with a relative, the remaining factors weigh in favor of termination. Both respondent
father’s parenting ability and his compliance with the parent-agency agreement were lacking
because of his continued drug use. Although respondent father made attempts at sobriety
through both inpatient and outpatient programs, he missed the majority of the scheduled drug
screens in the time leading up to the best-interest hearing and suffered a relapse less than two
months before the best-interest hearing. Although both the psychologist and the L-GAL
indicated that respondent should be given more time to rectify his substance abuse, the record
establishes that respondent was given 1 ½ years to address his substance abuse and failed to
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show any consistent progress leading up to the termination hearing. Therefore, the trial court did
not clearly err in concluding by a preponderance of the evidence that termination was in KL’s
best interests.

       Affirmed.


                                                            /s/ Henry William Saad
                                                            /s/ Kathleen Jansen
                                                            /s/ Michael J. Kelly




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