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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re M. JONES, JR., Minor. April 4, 2017

No. 335423
Jackson Circuit Court Family Division
LC No. 13-001032-NA

Before: B ECKERING , P.J., and O’C ONNELL and B ORRELLO , JJ.

P ER C URIAM

.
Respondent-father appeals as of right the trial court order te rminating his parental rights
to the minor child under MCL 712A .19b(3)(g) (failure to provide proper care and custody) and (j) (child will be harmed if re turned to parent). We affirm.

The trial court assumed jurisd iction over the minor child in F ebruary 2015 af ter the minor child tested positive for tetrahyrocannabinol (THC) upon birth. The petition further alleged that father had a history of domestic violence toward mother. Both parents had their parental rights to previous children with other partners terminated due to dome stic violence concerns and an inability to benefit from services provided.

From February 2015 to September 2015, father followed the pare nt-agency treatment plan and interacted with the mi nor child appropriately during s upervised parental visitations. Father completed a psychologica l evaluation, engaged in a paren ting class, participated in random drug screens, and completed an anger management course. In September 2015, father assaulted mother and was subseque ntly incarcerated through Febr uary 2016.

The minor child was returned to mother’s care in January 2016. Despite a court order providing that father was to rece ive supervised parental visita tion only, mother allowed father unsupervised visitation with the minor child on multiple occasi ons. In March 2016, father tested positive for heroin and alcohol. In April 2016, father was arr ested for another domestic violence incident with mother, committed while the minor child was prese nt in the home. Father’s parental rights were terminated in October 2016.

Father argues that the trial court violated his constitutional right to parent the minor child by terminating his parental rights. We disagree.

We typically review de novo a respondent’s claim of a violatio n to his constitutional rights to substantive or procedural due process. In re TK , 306 Mich App 698, 703; 859 NW2d-2- 208 (2014). However, because father failed to preserve this is sue by raising it in the trial court, this Court reviews for plain error. Id. Defendant may obtain relief only if “(1) error . . . occurred, (2) the error was plain, i.e., clear or obvious, (3) and the plain error affected substantial rights.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

Father is correct that he has a constitutional right to parent the minor child, which “does not evaporate simply because [he has] not been [a] model parent [ ].” Santosky v Kramer , 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). However, “[ a] parent’s right to control the custody and care of [his] children is not absolute, as the stat e has a legitimate interest in protecting ‘the moral, emotional, mental, and physical welfare of the minor,’ and in some circumstances ‘neglectful parents may be separated from their c hildren.’ ” In re Sanders , 495 Mich 394, 409-410; 852 NW2d 524 (2014), quoting Stanley v Illinois , 405 US 645, 652; 92 S Ct 1208; 31 L Ed 2d 551 (1972). Once the trial court finds that c lear and convincing evidence establishes at least one ground for termination under MCL 712A. 19b(3), “the liberty interest of the parent no longer includes the right to custody and control of the children.” In re Trejo , 462 Mich 341, 355; 612 NW2d 407 (2000). At that point, a “parent’s interest in the companionship, care, and custody of the child giv es way to the state’s interes t in the child’s protection.” Id. at 356. Therefore, father’s constitutional right to parent his mi nor child was not violated if the trial court correctly found by clear and convincing evidence that the re was a statutory ground for
termination. See id.

Because father fails to argue that the trial court erred in fi nding that there were statutory grounds to terminate his parental rights, he has abandoned the issue. See Berger v Berger, 277 Mich App 700, 712; 747 NW2d 336 (2008) (“A party abandons a cla im when it fails to make a meaningful argument in support of its position.”). Consequentl y, father’s argument as to his constitutional right to parent m ust also fail because father’s liberty interest no l onger included the right to custody and control of his minor child once the trial court found statutory grounds to terminate his parental rights. See In re Trejo , 462 Mich at 355. However, even if father had not abandoned the statutory-grounds iss ue, we would conclude nevert heless that the trial court did not err in finding that there were statutory grounds to termina te his parental rights under MCL 712A.19b(3)(g) and (j).

To terminate parental rights, the trial court must find that cl ear and convincing evidence exists to establish at least one of the statutory grounds for t ermination in MCL 712A.19b(3). In re McIntyre , 192 Mich App 47, 50; 480 NW2d 293 (1991). Once the trial court finds a statutory ground for termination by clear and convincing evidence and fin ds that termination is in the best interests of the child by a pre ponderance of the evidence, the trial court shall order termination of parental rights. MCL 712A.19b(5); In re Trejo , 462 Mich at 353. The trial court’s decision to terminate parental rights is reviewed for clear error. Id . at 356-357. A finding is “clearly erroneous where the reviewing court is left with a definite and firm conviction that a mistake has
been made.” In re Terry , 240 Mich App 14, 22; 610 NW2d 563 (2000).

Respondent’s parental rights were terminated under MCL 712A.19 b(3)(g) and (j). A parent’s parental rights to a minor child may be terminated und er MCL 712A.19b(3)(g) where the parent “fails to provide proper care or custody for the chi ld 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.” MCL 712A.19b(3)(j) provides that a parent’s parental rights-3- to a minor child may be terminated where “[t]here is a reasonab le 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 e rr in finding that clear and c onvincing evidence established these grounds for termination of father’s parental rights. Despite being provided extensive services to address his domestic violence issues, father proceeded to assault mother twice during the proceedings. M oreover, father placed the mino r child’s safety in jeopardy by having unsupervised parental vis itation despite the trial court ’s orders otherwise. Father’s failure to comply with and benefit from the service plan constitutes ev idence that he would be unable to provide proper care and custody and that the minor child’s heal th would be at risk if the minor
child was returned to him. In re White , 303 Mich App 701, 710; 846 NW2d 61 (2014).

“Once a statutory ground for termination has been proven, the trial court must find that
termination is in the child’s best interests before it can term inate parental rights.” In re
Olive/Metts Minors , 297 Mich App 35, 40; 823 NW2d 144 (2012). The trial court may consider the record as a whole in determining whether termination is in the child’s best interests. In re Trejo , 462 Mich at 354. The trial court must “state on the record o r in writing its findings of fact and conclusions of law with respect to whether or not parental rights should be terminated.” MCL 712A.19b(1). When deciding whether termination is in the c hild’s best interests, the trial 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 Olive/Metts Minors , 297 Mich App at 41- 42 (citations omitted). It is also proper to consider evidence concerning the length of time the child has b een in foster care and whether the child could be returned to the par ent “within the foreseeable f uture, if at all.” In re Frey , 297 Mich App 242, 249; 824 NW2d 569 (2012). Although the parent’s interests may be considered, “[t]he primary beneficiary” of the best-interest determination “is intended to be the child.” In re Trejo , 462 Mich at 356.

The trial court also did not err in making its best-interest de termination. Although father interacted appropriately with the minor child during supervised parental visitation and had a bond with the minor child, father only exercised this visitatio n from February 2015 to September 2015. Against court ord ers, father exercised unsupervised visi tation in Februar y 2016 and March 2016. At no point in the minor child’s life was father respons ible for the care and custody of the minor child, and at no point during the proceedings did father demonstrate sufficient progress to
achieve court-sancti oned unsupervised visitation. Further, the minor child had been placed with a foster-care family with his step-siblings, and the foster-car e family indicated a willingness to adopt the minor child and provid e the minor child with permanen cy, stability, and finality. Considering father’s lack of pr ogress and his recent incarcerat ion, it was “unlikely that the child could be returned to [his] parents’ home within the foreseeable future,” and termination of father’s parental rights was pr oper to facilitate the placement of the minor child into a permanent, stable, loving home. See In re Frey , 297 Mich App at 249.

Affirmed.

/s/ Jane M. Beckering
/s/ Peter D. O’Connell /s/ Stephen L. Borrello