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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UNPUBLISHED 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: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ. 

PER CURIAM. 

 Respondent appeals as of right from an order terminating his parental 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 petition was filed seeking court jurisdiction 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 involving 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 psychological and psychiatric 

evaluations. Respondent also had to obtain suitable housing and 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 returned to respondent’s care. 

However, in April 2013, a change of placement petition was filed seeking removal of the 

children again because respondent was in jail. The children were placed back in foster care for a 

second time. Respondent was released from jail in July 2013, continued 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 were going well, he was working, 

and he had a home. The children were returned to respondent’s care. 

 

1

 The children’s mother died during these proceedings. 
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 However, in January 2014, another petition requesting removal of the children was 

authorized. According to the petition, respondent had been jailed for assault and domestic 

violence against his girlfriend. The record reflects that respondent attempted to strangle his 

girlfriend while the children were in the home. The children were 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 violence program. However, respondent did not successfully complete 

the program, which was a violation of his probation. As a result of the probation violation, he 

was sentenced to 29 to 60 months in prison. Subsequently, a termination petition was filed based 

on respondent’s pattern of domestic violence, lack of suitable housing and income, failure to 

comply with his probation, current incarceration, and criminal history. Following a hearing, the 

trial court entered an order terminating respondent’s parental rights. 

 In order to terminate parental rights, the trial court must find that at least one of the 

statutory grounds for termination in MCL 712A.19b(3) has been met 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 circumstances: 

 (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: 

 (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. 

 (ii) Other conditions exist that cause the child to come within the court’s 

jurisdiction, the parent has received recommendations to rectify those conditions, 

the conditions have not been rectified by the parent after the parent has received 

notice and a hearing and has been given a reasonable opportunity to rectify the 

conditions, and there is no reasonable likelihood that the conditions will be 

rectified within a reasonable time considering the child’s age.

* * * 

 

2

 This Court reviews for clear error 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 mistake has been committed, giving due 

regard to the trial court’s special opportunity to observe the witnesses.” Id. at 296-297. 
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 (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. 

 (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 the 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. 

* * * 

 (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 trial court did not clearly err in finding at least one statutory ground for termination 

established by clear and convincing evidence. It had been about three years since the initial 

disposition, and respondent failed to resolve his issues with domestic violence and anger 

management. Despite his involvement in services to resolve these issues, respondent continued 

to engage in violent acts while this case was pending. Most recently, 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 resulted in the children’s 

repeated placements into foster care and subjected them to emotional harm. The worker 

involved in this case opined that respondent had not benefited from services and that it could 

take a very long time for respondent to be able to parent his children. Given these 

circumstances, and the length of time this case was pending, the trial court did not clearly err in 

terminating respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j).3

 The trial court also did not clearly err in terminating respondent’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) authorizes 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 years, 

and [2] the parent has not provided for the child’s proper care and 

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). 
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will be able to provide proper care and custody within a reasonable 

time considering the child’s age. 

 The combination of the first two criteria—that a parent’s imprisonment 

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 provide 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; it 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 incarceration also is 

not decisive. [quoting MCL 712A.19b(3)(h) (emphasis and brackets in original.] 

 In this case, respondent’s earliest 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 court could reasonably determine that 

respondent’s conduct would jeopardize his chances at an early release and that he would be held 

until 2018, which was more than two years away. Moreover, respondent 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 proper care and custody in the future by 

voluntarily granting legal custody to relatives during a remaining term of incarceration. Id. at 

163. Although respondent’s sister testified that she was willing to care for the children at the 

hearing, she had not previously come forward to express interest in caring for them. Given these 

circumstances, the trial court did not clearly err in terminating respondent’s parental rights under 

MCL 712A.19b(3)(h).4

 The trial court also did not clearly err in finding that termination of respondent’s parental 

rights was in the children’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 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 701, 713; 846 NW2d 61 (2014) (quotation omitted). The trial court 

should weigh all the evidence available to determine the child’s best interests. Id. at 713. 

 

4

 Contrary to respondent’s claim, the trial court did not base termination on only his 

incarceration. Incarceration alone is not a proper basis for termination. Mason, 486 Mich at 160. 

The court’s comments indicated that its ruling was based on respondent’s failure to resolve his 

domestic violence issue, not just his current status as a prisoner. Moreover, the fact that 

respondent never physically harmed his children in the past did not preclude termination. The 

trial court could reasonably conclude that respondent’s unresolved domestic violence/anger 

management issues resulted in an inability to provide proper care and custody for his children 

and posed a risk to them, justifying termination. 

5

 We review the trial court’s decision regarding the children’s best interests for clear error. 

Trejo, 462 Mich 341, 356-357; 612 NW2d 341 (2000). 
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 There was evidence that respondent lacked a bond with his children. Moreover, the 

children were both in good foster homes and had bonded with their families. They had been in 

care a lengthy period of time and had already endured two failed reunifications. Despite 

numerous services and almost three years, respondent failed to resolve his anger management 

and domestic violence issues. Accordingly, the trial court did not clearly err in finding by a 

preponderance of the evidence that 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