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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re J. BROCK, Minor. August 13, 2015

No. 324767 Livingston Circuit Court Family Division

LC No. 13-014610-NA

Before: S AWYER

, P.J., and M. J. K ELLY and S HAPIRO

, JJ.

P ER C URIAM

.

Respondent appeals as of right from an order terminating her p arental rights to her son pursuant to MCL 712A.19b(3)(g) (f ailure to provide proper care and custody), MCL 712A.19b(3)(h) (parent imprisoned and child will be deprived of home for two years), and MCL 712A.19b(3)(j) (reasonable likeli hood of harm to the child). W e affirm.

On August 31, 2013, respondent and the minor child’s father we re babysitting a fouryear-old niece, TS, when they suspected she ingested Suboxone t hat they had brought into the home. Respondent called several friends for advice. One frien d came over and forced TS to
vomit. Another friend contacted poison control and relayed to respondent that poison control had said that TS should be taken to the emergency room if she e xhibited symptoms of taking Suboxone. Respondent admitted that TS exhibited symptoms and t he record shows that TS vomited a second time, was lethargic, and was glassy-eyed. How ever, respondent did not take her to the emergency room. Instead, respondent told TS’s legal guardian that TS was sick and should go to the hospital. She did not inform her that TS had ingested Suboxone. TS’s guardian called 911 later in the evening when TS became unresponsive and was not breathing. She was pronounced dead at the scene. The autopsy indicat ed she died o f a Suboxone overdose.

Respondent eventually acknowledged the above chain of events. She was arrested and incarcerated on January 17, 2014. T hereafter, she pleaded guil ty to involuntary manslaughter and second-degree child abuse, a nd was imprisoned. Her earlies t release date is June 16, 2018.

At the termination hearing, respondent testified about her rel ationship with the minor’s father, who she acknowledged had a criminal history, a substanc e abuse history, and a history of
domestic violence toward her. She also testified to her own su bstance abuse, which included use of alcohol, benzodiazepines (Xanax), opiates (heroin), amphetam ines, marijuana, and tobacco products. She acknowledged that h er criminal history included juvenile charges stemming from her use of alcohol and controlled substances, and that she had been dismissed from a residential treatment program after relapsing and testing positive for meth amphetamine.-2- Prior to her incarceration, res pondent was provided with super vised parenting time with her son. However, she missed six or seven of the nineteen offe red visits. She scheduled a substance abuse assessment and was in the process of rescheduli ng a psychological evaluation. She voluntarily agreed to abide by a parent agency treatment pl an (PATP).

After she was incarcerated, resp ondent participated in service s available at the jail, including AA and NA meetings, the Opiates Project, and MRT ther apy. She also completed the psychological evaluation and subs tance abuse assessment while i n jail.

According to the psychological report, respondent had a person ality disorder that was associated with a history of sign ificant addiction. The report also indicated that respondent would be unable “to provide good parenting for her child as lon g as she has problems with her addiction and her personality disorder is not addressed in coun seling.” The report “very strongly” recommended that respondent “be referred for substanc e abuse counseling while in prison” and indicated that “[h]er personality disorder can also be addressed in substance abuse counseling within the prison system.” Further, it indicated th at respondent’s “psychological immaturity and poor judgment associated with her personality di sorder will be her major psychological weaknesses,” and th at substance abuse was certain ly also a major weakness. Karen Bergbower, an expert in substance abuse disorders and co- occurring disorders, indicated that respondent’s personality di sorder and addiction, if not pr operly treated, would interfere with her ability to parent. She said that the treatment for someone with an addiction and a cooccurring personality disorder needed to be long-term and very structured.

According to the substance abuse assessment, respondent was di agnosed with alcohol abuse in early remission, marijuana abuse in early remission, n icotine dependence in early remission, and opiate dependence in full remission. The assess or recommended that after her release from incarceration, re spondent submit to weekly random alcohol and drug urine screens
for a minimum of three months. The assessor also recommended t hat respondent “participate in weekly outpatient treatment for at least a year to identify the underlying issues of substance abuse to help her maintain and lengthen her sobriety.” Further , it was recommended that respondent participate in a weekly support group in conjunction with her outpatient treatment. Finally, it was recommended that respondent “complete a psychia tric evaluation if she continues to experience serious depression and anxiety.” In addition, Be rgbower recommended that respondent receive a minimum of one year of substance abuse tre atment. She said that the treatment must also appropriately address the co-occurring ment al health issue, i.e., the personality disorder. She was not confident that respondent wo uld respond well to treatment given that she had had several opportunities and d id not respon d well to them.

After transfer from jail to a c orrectional faci lity, responden t again was provided with services, including a parenting cl ass and a domestic violence c lass. Respondent also testified that she was on the wait list for AA and would be eligible for counseling at some point and an inpatient treatment program duri ng the last year of her impriso nment.

Respondent testified that the last time she saw her son was wh en he was seven months old. She acknowledged that he would be five years old upon her earliest release date. Bergbower testified that the ch ild was reliant on his caregiver s and that attachme nt was critical at his age. She opined that the glass windows in a prison would i mpair his ability to form an-3- attachment. She also did not belie ve it was in his best intere sts to wait until he was five years old to be with an appropriate caregiver.

The trial court found by clear an d convincing evidence that th ere were grounds to terminate respondent’s parental rights pursuant to MCL 712A.19b (3)(g), (h), and (j). On appeal, respondent first argues that termination was improper because p etitioner failed to provide her
with services for reunification w hile she was incarcerated. We disagree.

To preserve a challenge to the adequacy of the reunification e fforts, a respondent must object or indicate that the services provided are inadequate. In re Frey , 297 Mich App 242, 247; 824 NW2d 569 (2012). “The time for asserting the need for acco mmodation in services is when the court adopts a service plan. . . .” Id ., quoting In re Terry , 240 Mich App 14, 27; 610 NW2d 563 (2000). Before this appeal, respondent did not object or i ndicate that the services provided in this case were inadequate. T hus, this argument is unpreserv ed.

However, we note that the rec ord belies respondent’s contentio n that petitioner failed to provide reasonable reunification se rvices. “Generally, when a child is removed fr om the parents’ custody, the petitioner is required to make reasonable efforts to rectify the conditions that caused the child’s removal by adopting a service plan.” In re HRC , 286 Mich App 444, 462; 781 NW2d 105 (2009). “The state is not relieved of its duties to engage an absent parent merely because that parent is incarcerated.” In re Mason , 486 Mich 142, 152; 782 NW2d 747 (2010). “‘Reasonable efforts to reunify the child and family must be ma de in allcases’ except those involving aggravated circumstances . . . .” Id . at 152 (citation omitted) (emphasis in original). Thus, “a court may not terminate parental rights on the basis o f ‘circumstances and missing information directly attributable to respondent’s lack of meani ngful prior participation.’” Id . at 159-160, quoting In re Rood , 483 Mich 73, 119; 763 NW2d 587 (2009). However, if a respondent is unable to participate there is a “hole” in the ev idence supporting a termination
decision. In re Rood , 483 Mich at 127.

In this case, respondent was provided with numerous services a imed at reunification. The record shows that before her incarceration, she had supervi sed parenting time, random drug screens, and referrals for a psychological evaluation and a sub stance abuse assessment. Respondent was also encouraged to complete a mental health inta ke, which she failed to do. After respondent was incarcerated she was able to complete the psychological evaluation and
substance abuse assessment. F urther, respondent’s testimony in dicates that she participated in AA and NA meetings, the Opiates Project, and MRT therapy sessio ns. Then, when she was
moved to a correctional facility, she was placed on a wait list for AA and NA, attended a parenting skills class, and was participating in a domestic vio lence class. Respondent’s testimony indicated that a reason for her participation in thos e services was her attempt to comply with the PATP. Moreover, respondent testified that she will be eligible for additional services, such as counseling and the inpatient treatment progra m, as they become available to her. She admitted that she has been provided with numerous ser vices and nothing in this record suggests that additional servic es would be available. On this record, we conclude that respondent was provided with rea sonable reunification services before and during her
incarceration.-4- Next, respondent argues that the trial court erred in finding by clear and convincing evidence that termination was proper pursuant to MCL 712A.19b(3 )(g), (h), and (j). We review 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 i f 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 t o observe the witnesses.” Id. at 296-297.

MCL 712A.19b(3)(g), (h), and (j) provide:

(3) The court may terminate a parent’s parental rights to a ch ild if the court finds, by clear and convinc ing evidence, 1 or more of the following:

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(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 evidence showed that without regard to her intent, respond ent was unable to provide proper care and custody for her son. He was removed from her h ome after his cousin died of a drug overdose after she ingested a Suboxone pill while in respo ndent’s care and was not provided with proper medical treat ment. As a result of this in cident, respondent was incarcerated on January 17, 2014. During her incarceration, she was unable to provide any care or custody for her son. Further, after pleading guilty to involuntary man slaughter and second-degree child abuse, respondent was imprisoned for 53 months to 15 years with credit for 181 days served. Because of her incarceration, her son would be deprived of a no rmal home for a period exceeding 2 years. See MCL 712A.19b(3)(h). In addition, given that her son was about four months old when he was removed, about seven months old when he last saw respondent, and will be about five years old before respondent is even released from incarceration, the trial court did not err in finding that, give n his age, there is no reasona ble expectation that respondent would be able to provide proper care and custody within a reaso nable time. See MCL 712A.19b(b)(3)(g) and (h). Moreover, as the trial court noted, respondent had a significant history of substance abuse and substance abuse-related criminal convictions. She had failed to show benefit from earlier treatment programs. Further, respond ent had a personality disorder,-5- and these conditions would require, at a minimum, a year of int ense treatment that, it appears, would not be possible to start until after respondent was released fro m prison. Accordingly, the trial court did not clearly err i n finding that termination was proper under subsections (g) and (h).

Moreover, termination was prope r pursuant to MCL 712A.19b(3)(j ) because respondent’s long-history of substance abuse, criminal convictions resulting from substance abuse, and inability to benefit from substance abuse treatment all indicat e that if her son is returned she will continue to use substances. Bergbower testified that responden t’s ability to succeed in treatment was poor, given her history. Fur ther, respondent’s actions dur ing the incident with TS show that respondent was unable to provide proper supervision of a young child. Although respondent
asserts that she would make diffe rent choices now, nothing in t his record indicates that she would make the appropriate choices in the future. Accordingly, on these facts the trial court did not err in finding that termination was proper pursuant to MCL 712A.19b(3)(j).

Although respondent does not chall enge the trial court’s findi ngs as to best interests, we conclude that, based on the entire record, the court’s best int erests findings were not clearly
erroneous. There was n o evidence presented of a current bond b etween respondent and the child. Instead, the testimony was that she had not seen him in over ni ne months. Further, there was testimony that respondent would be unable to provide proper car e and custody until the child was, at a minimum, five years old. However, even that distant reunification date was uncertain because of the testimony about respondent’s need for post-relea se substance abuse monitoring and treatment as well as treatment for her personality disorder . The trial court found that the
child should not have to wait for permanence and stability.

Affirmed.

/s/ David H. Sawyer /s/ Michael J. Kelly /s/ Douglas B. Shapiro