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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re N. L. CONSTANTINOFF, Minor. April 14, 2015

No. 322666 Shiawassee Circuit Court Family Division LC No. 12-013228-NA

AFTER REMAND

Before: M URPHY , P.J., and M ETER and S ERVITTO , JJ.

P ER C URIAM

. Respondent appeals as of right from an order terminating his p arental rights to his son NLC (DOB 10/31/09). We remanded to the trial court to clarify its findings and legal conclusions. In re N. L. Constantinoff, Minor, unpublished opinion per curiam of the Court of Appeals, issued February 3, 2015 (Docket No. 322666). The tria l court having issued an Opinion and Order consistent wit h this Court’s remand directive , we now affirm.

It is well established that the petitioner for the termination of parental rights bears the burden of proving at least one g round for termination under MCL 712A.19b(3). In re Trejo , 462 Mich 341, 350; 612 NW2d 407 (2000). This Court reviews an orde r terminating parental rights under the clearly erroneous standa rd. MCR 3.977(K). A decisio n of the trial court is clearly erroneous if “the reviewing court on the entire evidence is lef t with the definite and firm conviction that a mistake has been made.” In re JK , 468 Mich 202, 209-210; 661 NW2d 216 (2003).

Adjudication concerning NLC began on June 28, 2012, when the c hild was found in his mother’s home, which was in deplorable condition. Respondent, who was never married to NLC’s mother, had not at that time signed a formal affidavit of parentage for NLC. Respondent testified that he visited with NLC every other weekend before h e became incarcerated in March 2011. Respondent was apparently incarcerated for third degree criminal sexual conduct. Although respondent signed an affida vit of parentage in July 20 12, shortly after adjudication concerning NLC began, no servic es were provided to respondent d ue to his incarceration. The trial court terminated respondent ’s parental rights to NLC at t he conclusion of a June 3, 2014, bench trial.

The record reveals that defendant became incarcerated for a se xual offense against a minor when NLC was approximately one and one-half years old. D efendant was sentenced to 5-2- years and five months to 22 years imprisonment, with his earlie st possible release date being in February 2016. Pursuant to In re Mason , 486 Mich 142, 146; 782 NW2d 747 (2010), “[i]ncarceration alone is not a sufficient reason for terminati on of parental rights.” However, the facts of Mason are distinguishable from those at hand.

In Mason , the respondent-father, who was never married to his two child ren’s mother, shared responsibility for the eldest child’s care with the moth er and worked to support the family. The respondent-father was imprisoned shortly before th e birth of the second child and both children were removed from the mother’s care shortly there after. Although the DHS and the trial court knew of the res pondent-father’s incarceration, he was not given the opportunity to participate in the vast majority of hearings concerning the chi ldren. Id . at 148. Respondentfather was also not, as admitted by DHS, able to comply with th e service plan as written while he was incarcerated. Id . at 156-157. The Court found thi s to be in error. The Court determined that termination of the respondent-fat her’s parental rights occurred essentially solely because of his incarceration and held that the “mere present inability to pers onally care for one's children as a result of incarceration does not constitute grounds for termina tion.” Id . at 160. The Court indicated that the trial court s hould have evaluated whether th e respondent could care for his children in the future, either pe rsonally or through relatives. Id . at 165.

Here, in contrast to Mason , respondent was given the opportunity to appear at least by telephone at every stage of the proceedings involving NLC. In addition, the trial court in this case did not rely on respondent’s failure to comply with any se rvices or service plan as part of its decision to terminate respondent’s parental rights, as did the trial court in Mason . While the trial court here noted that there are limited resources available to individuals in prison, and the DHS stated at the termination hearing that it does not offer servic es to people who are criminal sex offenders, the DHS also stated that respondent could look for s ervices at his place of incarceration and re port them to DHS.

Also in contrast to Mason , the trial court in this case did evaluate whether respondent would be able to care for NLC through family. Respondent reque sted that the trial court place NLC with respondent’s brother. A home study was done and while there were concerns about the financial stability of the b rother and his housing situatio n, the Foster Care Review Board ultimately denied placement with respondent’s brother. The tri al court found that the reasons for denying placement were sound, as they were based primarily upon a lack of stable independent housing.

On remand from this Court, the trial court stated that grounds for termination were established by clear and convinc ing evidence under MCL 712A.19b (3)(c)(i)(condition that led to adjudication continues to exist and there is no reasonable like lihood that the condition will be rectified within a reasonable time considering the child’s age) and (3)(c)(ii)(other conditions exists that caused the child to come within the court’s jurisdi ction and respondent received recommendations to rectify those conditions but the conditions have not been rectified). As admitted by respondent, while his earliest release date is in F ebruary 2016, there is no guarantee that he will in fact be released at that time. One of the DHS caseworkers testified that respondent-father had been incar cerated since NLC was a little over a year old and that he would get out, at the earliest, when the child is six. According to the caseworker, at that point, respondent-father would not know NLC and would not know much ab out him. If respondent is-3- not released on his earliest out date, it will only serve to in crease the time in which he will be unable to care for his child. That fact, coupled with the fact that suitable placement with respondent’s family was considered satisfies this Court that th e trial court’s termination decision was not clearly erroneous.

Affirmed.

/s/ William B. Murphy /s/ Patrick M. Meter /s/ Deborah A. Servitto