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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED June 2, 2016 In re DAVIS, Minors.

No. 328868 Wayne Circuit Court Family Division LC No. 12-505907-NA

Before: G ADOLA , P.J., and S ERVITTO and S HAPIRO , JJ.

P ER C URIAM

. Respondent appeals as of right from an order terminating his p arental rights to the minor children pursuant to MCL 712A.19b(3)(c)( i ), (c)( ii ), (g), (h), and (j). We affirm.

In March 2012, the initial peti tion was filed seeking court ju risdiction over the minor children. According to the petition, the children’s mother had a history of substance abuse and domestic violence with respondent. 1 Further, respondent was involved in an altercation with the mother’s boyfriend, had a prior conviction for child abuse invo lving an older child, and was living in a shelter with the children. Following a trial, the court assumed jurisdiction over the children and ordered respondent to comply with a treatment plan requiring a substance abuse assessment, parenting classes, anger management therapy, and ps ychological and psychiatric evaluations. Respondent also had to obtain suitable housing an d income.

By December 2012, respondent had suitable housing, and he had progressed to overnight visits with his children. He had completed his evaluations and parenting classes, was in counseling, and visits were going well. The children were retu rned to respondent’s care. However, in April 2013, a change of placement petition was file d seeking removal of the children again because respondent was in jail. The children we re placed back in foster care for a second time. Respondent was released from jail in July 2013, c ontinued services, and by November 2013, the worker recommended returning the children to respondent’s care because he was complying with his treatment plan, unsupervised visits w ere going well, he was working, and he had a home. The children wer e returned to respondent’s care.

1 The children’s mother di ed during these proceedings.-2- However, in January 2014, another petition requesting removal of the children was authorized. According to the petition, respondent had been jai led for assault and domestic violence against his girlfriend. The record reflects that resp ondent attempted to strangle his girlfriend while the children were in the home. The children w ere placed in foster care for a third time. Respondent pleaded guilty to his pending charge. He was sentenced to 36 months of probation, with the first year spent in jail. He was scheduled to be released after successful completion of a domestic violen ce program. However, respondentdid not successfully complete the program, which was a violation of his probation. As a resu lt of the probation violation, he was sentenced to 29 t o 60 months in prison. Subsequently, a te rmination petition was filed based on respondent’s pattern of domestic violence, lack of suitable housing and income, failure to comply with his probation, curre nt incarceration, and criminal history. Following a hearing, the trial court entered an order te rminating respondent’s parental rights.

In order to terminate parental rights, the trial court must fi nd that at least one of the statutory grounds for terminati on in MCL 712A.19b(3) has been m et by clear and convincing evidence. In re Ellis , 294 Mich App 30, 32; 817 NW2d 111 (2011). 2

Termination was based on MCL 712A.19b(3)(c)( i ), (c)( ii ), (g), (h), and (j), which permit termination of parental rights under the following circumstance s:
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of aninitial dispositional order, and the c ourt, by clear and convincing evi dence, finds either of the following:

( i ) The conditions that led to the a djudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.

( ii ) Other conditions exist that cause the child to come within th e court’s jurisdiction, the parent has re ceived recommendations to rectif y those conditions, the conditions have not been rectif ied by the parent after the parent has received notice and a hearing and has be en given a reasonable opportunit y to rectify the conditions, and there is no reas onable likelihood that the cond itions will be rectified within a reasonable ti me considering the child’s age.

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2 This Court reviews for clear e rror a trial court’s finding of whether a statutory ground for termination has been proven by clear and convincing evidence. MCR 3.977(K); In re BZ , 264 Mich App 286, 296; 690 NW2d 505 ( 2004). “A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mista ke has been committed, giving due regard to the trial court’s sp ecial opportunity to observe the witnesses.” Id. at 296-297.-3- (g) The parent, without regard to intent, fails to provide pro per care or custody for the child and there is no reasonable expectation th at the parent will be able to provide proper care and custody within a reasonable tim e considering the child’s age.

(h) The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and t he parent has not provided for the child’s proper care and custody, 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.

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(j) There is a reasonable lik elihood, 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 in finding at least one st atutory ground for termination established by clear and convinc ing evidence. It had been abou t three years since the initial disposition, and respondent fai led to resolve his issues with d omestic violence and anger management. Despite his involvement in services to resolve the se issues, respondent continued to engage in violent acts while this case was pending. Most re cently, he violently assaulted his girlfriend, resulting in removal of the children from his care. Then he assaulted a fellow prisoner while incarcerated. Respondent’s continued domestic violence r esulted in the children’s repeated placements into foster care and subjected them to emot ional harm. The worker involved in this case opined th at respondent had not benefited from services and that it could take a very long time for respondent to be able to parent his c hildren. Given these circumstances, and the length of time this case was pending, th e trial court did not clearly err in terminating respondent’s parent al rights pursuant to MCL 712A.1 9b(3)(c)( i ), (g), and (j). 3

The trial court also did not clearly err in terminating respon dent’s parental rights under MCL 712A.19b(3)(h). In Mason , 486 Mich 142, 160-161; 782 NW2d 747 (2010), our Supreme Court explained:

MCL 712A.19b(3)(h) authori zes termination only if each of three conditions is met:

The parent is imprisoned for such a period that [1] the child will be deprived of a normal home for a period exceeding 2 year s, and [2] the parent has not provided for the child’s proper care an d custody, and [3] there is no reasonable expectation that the parent

3 We do not agree, however, MCL 712A.19b(3)(c)( ii ) established. However, given that only one statutory ground need be established, the error was harmless. See In re Foster , 285 Mich App 630, 633; 776 NW2d 415 (2009).-4- will be able to provide proper care and custody within a reason able time considering the child’s age.

The combination of the first two criteria—that a parent’s impr isonment deprives a child of a normal home for more than two years and the parent has not provided for proper care and custody—permits a parent to provid e for a child’s care and custody although the parent is in prison ; he need not personally care for the child. The third necessary condition is forward-looking; i t asks whether a parent “will be able to” provide proper care and custody within a reasonable time. Thus, a parent’s past failure to provide care because of his in carceration also is not decisive. [quoting MCL 712A.19b( 3)(h) (emphasis and bracke ts in original.]

In this case, respondent’s earlie st release date was May 2016, but his latest release date was in 2018. As the trial court noted, respondent had several infractions while in prison. In particular, respondent assaulted a prisoner and he had acquired another misconduct ticket for being in an unauthorized area. Given this information, the cou rt could reasonably determine that respondent’s conduct would jeopardize his chances at an early r elease and that he would be held until 2018, which was more than two years away. Moreover, resp ondent had not provided for the children’s proper care and custody while he was in prison, as his children were in nonrelative foster care. An incarcerated parent may provide prope r care and custody in the future by voluntarily granting legal custody to relatives during a remain ing term of incarceration. Id . at 163. Although respondent’s sister testified that she was willi ng to care for the children at the hearing, she had not previously come forward to express interes t in caring for them. Given these circumstances, the trial court did not clearly err in terminati ng respondent’s parental rights under MCL 712A.19b(3)(h). 4

The trial court also did not clearly err in finding that termi nation of respondent’s parental rights was in the child ren’s best interests. 5 In deciding a child’s best interests, a court may consider “the child’s bond to the parent, the parent’s parentin g ability, the child’s need for permanency, stability, and finality, and the advantages of a fo ster home over the parent’s home.” In re White , 303 Mich App 701, 713; 846 NW2d 61 (2014) (quotation omitted) . The trial court should weigh all the evidence ava ilable to determine the child’ s best interests. Id . at 713.

4 Contrary to respondent’s claim, the trial court did not base t ermination on only his incarceration. Incarceration alone is not a proper basis for t ermination. Mason , 486 Mich at 160. The court’s comments indicated that its ruling was based on res pondent’s failure to resolve his domestic violence issue, not just his current status as a priso ner. Moreover, the fact that respondent never physically harme d his children in the past did not preclude termination. The trial court could reasonably conclude that respondent’s unresol ved domestic violence/anger management issues resulted in an inability to provide proper ca re and custody for his children and posed a risk to them, justifying termination.

5 We review the trial court’s de cision regarding the children’s best interests for clear error. Trejo , 462 Mich 341, 356-357; 612 NW2d 341 (2000).-5- There was evidence that respondent lacked a bond with his chil dren. Moreover, the children were both in good foster homes and had bonded with the ir families. They had been in care a lengthy period of time and had already endured two faile d reunifications. Despite numerous services and almost thr ee years, respondent failed to resolve his anger management and domestic violence issues. A ccordingly, the trial court did not clearly err in finding by a preponderance of the evidence th at termination of respondent’s parental rights was in the children’s best interests.

Affirmed.

/s/ Michael F. Gadola /s/ Deborah A. Servitto /s/ Douglas B. Shapiro