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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re K. R. SHORT, Minor. September 27, 2016

No. 332110 Wayne Circuit Court Family Division LC No. 15-520033-NA

Before: B ORRELLO , P.J., and M ARKEY and R IORDAN , JJ.

P ER C URIAM

. Respondent-father appeals as of right an order terminating his parental rights to his child, KS, pursuant to MCL 712A.19b(3)(g ) (failure to provide care and custody), MCL 712A.19b(3)(h) (incarceration of parent), MCL 712A.19b(3)( i ) (parental rights to one or more siblings terminated), and MCL 712A.19b(3)(j) (reasonable likeli hood of harm). For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

Petitioner initiated child prot ective proceedings relating to KS, alleging in relevant part that KS was living with her biological mother who failed to pro vide adequate care and suitable housing. According to the petition, respondent did not provide housing or financial assistance, and he was to be incarce rated until the 2040s.

Respondent-father appeared by telephone at the preliminary hea ring, and the court explained that it would send re spondent an affidavit of parenta ge so that he could become KS’s legal rather than her putative father. The trial court authori zed the petition and arranged for respondent to appear via video for future hearings. At the pre trial hearing, re spondent appeared by video, but the affidavit of pare ntage was not yet complete.

At the next hearing, respondent asserted that he had signed an d returned the affidavit of parentage relating to KS. Respondent admitted that he was in p rison with the earliest possibility of release in 2047. He testified that he had been convicted of two counts of kidnapping, two counts of armed robbery, criminal sexual conduct, possession of a firearm during the commission of a felony, feloni ous assault, and possession of a firearm by a felon. But respondent asserted that he had appealed his convictions, and h e believed that he would be-2- released “next year or the year after that.” 1 Respondent admitted that he was unable to financially care for KS or provide her with a home. But he tes tified that his sister wanted to care for KS. When asked if his siste r had contacted the petitioner, respondent asserted that he would talk to his sister, and the cour t explained that it would provi de respondent with a phone number and that his sister should c ontact the petitioner.

Respondent admitted that his parental rights to another child were terminated in 2010. Caseworker Raven Hoke explained that the treatment plan for res pondent would most likely include supervised parenting time, parenting classes, a psychol ogical assessment, and individual counseling. However, when the court informed her that responde nt was incarcerated, Hoke stated that parenting time would probably not be requested. Th e trial court did not order visitation because respondent’s parental rights to another chil d had been previously terminated, but the court stated that respondent would be allowed to send l etters and make phone calls. The court entered an order of adjudication.

At the dispositional hearing, H oke testified that she mailed r espondent a written treatment plan and that his affidavit of parentage had been filed. She e xpected him to sign and return the treatment plan. According to Hoke, she did not know what servi ces respondent could receive in prison, and she was waiting on respondent’s prison to provide h er with information about available services. The court inquired about the earliest date of release for respondent, and Hoke explained that it was in 2047. The court stated that petitione r did not need to provide services to respondent because he was incarcerated. The court explained th at it would allow respondent to contact his child by phone or write letters, but indicated that petitioner “can’t go give him counseling or parenting classes,” elaborating that “we’re in th e reunification business with the parent who’s not incarcerated [sic] until 2047.” The court exp lained that respondent could participate in any services available in prison, but that the p etitioner could not go there to provide him with the services.

Petitioner filed a supplemental petition to terminate responde nt’s parental rights based on the termination of his rights t o another child, his incarcerati on, and his criminal history.

On the first day of the termina tion hearing, the court adjourn ed with respect to the respondent’s termination because it could not secure his appear ance by video. On the second day, the court admitted a 2010 order terminating respondent’s p arental rights to a different daughter, respondent’s biographical information from OTIS, and a 2013 judgment of sentence indicating that respondent had been convicted of nine criminal counts. The court then took testimony from the case worker.

Hoke testified that KS was three years old, and was placed in a foster home. Hoke explained that she sent respondent a treatment plan and her con tact information, but she did not receive anything back from respondent. According to Hoke, KS’s mother indicated that

1 Respondent’s convictions and sentences were affirmed in People v Howard James McKnight
, unpublished opinion per curiam of the Court of Appeals, issued April 21, 2015 (Docket No. 319979) lv den 498 Mich 907 (2015).-3- respondent had never had a relationship with KS before he was i ncarcerated, and he had not had contact with KS after going t o prison. Hoke testified that it was in KS’s best interest to terminate parental rights because respondent could potentially be incarce rated until 2080, he provided no financial support, and he was unable to parent. She also indic ated that respondent’s parental rights to another child were previously terminated, and that hi s criminal record for kidnapping and first-degree criminal se xual conduct concerned her.

Hoke testified that respondent’s treatment plan called for par enting classes, counseling, and supervised parenting time if allowed in prison. She explai ned that she contacted respondent’s prison counselor and exchanged emails, but no one had informed her whether services could be provided to respondent at the prison. Hoke e xplained that she was unsure if respondent had received individual counseling from his prison c ounselor, and she agreed that neither parenting classes nor supervised parenting time were ar ranged for respondent. Hoke testified that respondent posed no risk of harm to KS because h e would be incarcerated for the entire time that she would be a minor.

Respondent testified that he had previously been incarcerated, and that he had only been out of prison for “three or four months” after KS was born. Ac cording to respondent, he provided diapers and formula for KS “two or three times,” was “ around her every day,” and babysat for her twice. Respondent admitted that his earliest r elease date was 2047, but he claimed that he was in contact w ith the Innocence Project and h e believed that DNA evidence would result in his convictions b eing overturned. He testified that he felt he was innocent, that his attorney did not call an alibi witness, and that he planned to file an appeal with a federal court. Respondent testified that he received the treatment plan and sent back a response but that it was returned because there was something wrong with the addr ess. Respondent testified that he had not been able to take parenting classes or get individua l counseling, and he did not know of any opportunities to do so while in prison. Respondent test ified that his mother and sister wanted to see KS and could provi de her with love and support.

Respondent admitted that his parental rights to another daught er were terminated in 2010, explaining that this occurred because he “wasn’t there,” did no t show up to court, and could not attend parenting classes because he was “in and out of jail.” Respondent testified that the daughter came under the court’s care because her mother “shook her up,” but he was not present when that happened. He agreed with the court’s statement that the mother had admitted to shaking the child because she was mad at respondent. According to respondent, the child was ultimately adopted by her maternal grandfather. Respondent ass erted that this was the first time he had been imprisoned, but he had been in and out of jail sinc e 2008. According to respondent, he could not contact the caseworker if he did not have funds fo r the prison phone, and he could not send anything to KS because he did not know where she was. He explained that he was arrested in 2008 for assaulting and resisting a police officer and was arrested again in 2012 for unarmed robbery.

The trial court found that respondent would be incarcerated fo r at least 30 years and potentially longer if not release d at the earliest opportunity. The court also found that it was uncontroverted that respondent’s p arental rights to another chi ld had been terminated in 2010, and that there was nothing respondent could do to provide prope r parenting for KS. The court determined that the petitioner ha d proved that termination was proper under MCL-4- 712A.19b(3)(g) because respondent was unable to provide custodyand could not do so within a reasonable time because he would be incarcerated for at least 3 0 years. The court also found that termination was proper under MCL 712A.19b(3)(h) for the same re ason. The court determined that termination was proper under MCL 712A.19b(3)( i ) because of the evidence adduced that respondent’s parental rights to h is other child had been termin ated involuntarily. The court asserted that under MCL 712A.19b(3 )(j) there was a reasonable l ikelihood based on respondent’s conduct that the child would be harmed. The court also found t hat it was in KS’s best interests to terminate respondent’s parental rights. The court entered a wr itten order on March 7, 2016. This appeal ensued.

II. STATUTORY GROUND S FOR TERMINATION

Respondent argues that the trial court clearly erred when it f ound that petitioner established multiple statutory grounds for termination by clear and convincing evidence.

The trial court’s decision that a ground for termination of pa rental rights has been proven by clear and convincing evidence is reviewed for clear error. 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.

Under MCL 712A.19b(3)( i ), termination of parental rights is proper if “[p]arental righ ts to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate th e parents have been unsuccessful.” MCL 712A.19b(3)( i ). “The clear language of the statute requires the court to de termine the success of prior rehabilitation efforts as of the date of the t ermination hearing.” In re Gach , ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 328714); sli p op at 5.

It is undisputed that respondent ’s parental rights to another child, DM, were previously terminated in 2010. Respondent first contends that there is no evidence, aside from his own testimony, that prior efforts to rehabilitate him failed before the 2010 termination. At the termination hearing in the present case, respondent testified about treatment and remedial services during the 2010 case, stating that he went “to a coupl e parenting classes.” According to respondent, his parental rights to DM were terminated because h e “wasn’t there,” did not attend court hearings, and did not attend parenting classes because he was “in and out of jail.” Respondent’s testimony establishes that previous efforts at reh abilitation failed. In any event, the court in the 2010 case terminated respondent’s parental rig hts to DM in part based upon MCL 712A.19b(3)(c)( ii ), which provides:

Other conditions exist that cause the child to come within the 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 opportunity 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.-5- The trial court was required to find that respondent failed to rectify adverse conditions despite notice and a reasonable opportunity to do so. Thus, the failur e of the previous effort to rehabilitate respondent was one of the very reasons that the co urt terminated his parental rights to DM.

Respondent also argues that there is no evidence that his pare ntal rights to DM were terminated because of serious or chronic neglect, or physical o r sexual abuse by him. Respondent asserts that DM’s moth er physically abused her, and he testified that he was not present at the time of the abuse. However, the record shows th at respondent neglected the child. The trial court terminated his parental rights to DM in part ba sed upon MCL 712A.19b(3)(a)( ii ), which states: “The child’s paren t has deserted the child for 91 or more days and has not sought custody of the child during that period.” Thus, the trial cour t previously determined that respondent abandoned DM for 91 or more days. Accordingly, the trial court in this case did not clearly err by terminating responde nt’s parental rights under M CL 712A.19b(3)( i ).

Given our conclusion that one ground for termination was estab lished by clear and convincing evidence, we need not address the trial court’s othe r grounds for termination. In re Utrera , 281 Mich App 1, 24; 761 NW2d 253 (2008).

III. SUFFICIENCY OF SERVICES

Respondent next argues that petitioner did not make reasonable efforts to provide him with reunification services. Res pondent also asserts that the trial court improperly determined that petitioner was not required to provide respondent with ser vices because res pondent would be incarcerated until 2047. We disagree.

“The time for asserting the need for accommodation in services is when the court adopts a service plan, not at the time of a dispositional hearing to t erminate parental rights.” In re Terry , 240 Mich App 14, 27; 610 NW2d 563 (2000). Here, respondent n ever asserted that petitioner failed to make reasonable efforts to provide service s and thus, did not preserve this argument. Review of unpreserved issues is limited to plain err or affecting substantial rights. Kern v Blethen-Coluni , 240 Mich App 333, 336; 612 NW2d 838 (2000). “To avoid forfei ture under the plain error rule, three requirements must be met: 1) error must have 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).

“Generally, when a child is removed from the parents’ custody, the petitioner is required to make reasonable efforts to rectify the conditions that cause d the child’s removal by adopting a service plan.” In re HRC , 286 Mich App 444, 462; 781 NW2d 105 (2009). “Reasonable effo rts to reunify the child and family must be made in all cases except those involving aggravated circumstances. . . .” Id. (internal quotation marks omitted, emphasis in original). The issue of whether reasonable services were offered to a respondent ultima tely relates to the issue of sufficiency of the evidence for termination of parental rights. In re Fried , 266 Mich App 535, 541; 702 NW2d 192 (2005).

However, reasonable efforts to reunify a parent and child are not required if “[t]he parent has had rights to the child’s s iblings involuntarily terminated .” MCL 712A.19a(2)(c).-6- Respondent’s parental rights to another child were previously t erminated in 2010; thus, reasonable efforts were not r equired under MCL 712A.19a(2)(c). Reasonable efforts are also not required if “[t]he parent is required by court order to registe r under the sex offenders registration act.” MCL 712A.19a(2)(d). Responde nt was convicted of first-d egree criminal sexual conduct and is a registered sex offender. Thus, reasonable efforts wer e not required under MCL 712A.19a(2)(d). Moreover, petitioner did make a service plan i n this case, sent the plan to respondent in prison, and contacted the prison to inquire about what services were available to respondent. Respondent has not shown plain error relating to t he lack of services provided where the petitioner was not req uired to provide any services.

Respondent also asserts that the trial court erred by stating that petitioner could not provide services to respondent beca use respondent was incarcera ted. Indeed, “[t]he state is not relieved of its duties to engage an absent parent merely becaus e that parent is incarcerated.” In re Mason , 486 Mich 142, 152; 782 NW2d 747 (2010). However, while the t rial court did inform the petitioner that it could not provide services based upon th e respondent’s incarceration, the court elaborated, explaining that it merely meant that responde nt could only utilize whatever services were available in prison. Therefore, there is no indi cation that the trial court improperly barred petitioner from attempti ng to engage respondent and resp ondent has not shown plain

error.

IV. BEST INTERESTS

Finally, respondent asserts that the trial court clearly erred in its determination that it was in the KS’s best inter ests to terminate his parental rights.

“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 NW 2d 144 (2012) citing MCL 712A.19b( 5). When considering whether termination of parental rights is in t he child’s best in terests, the court may consider “the child’s bond to the parent, the parent’s pare nting ability, the child’s need for permanency, stability, and finality, and the advantages of a fo ster home over the parent’s home.” Id . at 41-42 (citations omitted). “The trial court may also cons ider a parent’s history of domestic violence, the parent’s compliance with his or her case service plan, the parent’s visitation history with the child, the children’s well-being while in care, and th e possibility of adoption.” In re White , 303 Mich App 701, 714; 846 NW2d 61 (2014).

The trial court’s decision regarding the child’s best interest s is reviewed for clear error. In re Trejo , 462 Mich 341, 356-357; 612 NW2d 407 (2000). “A finding of fa ct is clearly erroneous if the reviewing court has a definite and firm convic tion that a mistake has been committed, giving due regard to the trial court’s special oppor tunity to observe the witnesses.” In re BZ , 264 Mich App at 296-297.

Respondent asserts that the trial court clearly erred by faili ng to consider that KS was placed with a relative. Failure to consider a child’s placemen t with a relative renders the factual record inadequate and requires reversal. Olive/Metts Minors , 297 Mich App at 43. However, there is no record evidence that KS was placed with a relative. Our review of the record, including foster care reports, indicates that KS was placed in an unrelated licensed foster home.-7- Thus, the factual basis of respondent’s argument is absent, and we cannot conclude that the trial court clearly erred on this basis.

Respondent also argues that the t rial court clearly erred beca use finality and permanence cannot be achieved by terminating onl y his parental rights wher e KS could still be returned to her mother. But the court has the power to terminate the parental rights of only one parent. In re Marin , 198 Mich App 560, 565-566; 499 NW2d 400 (1993). Respondent f ails to cite any authority requiring the trial court to terminate the parental r ights of both parents. Further, termination of respondent’s paren tal rights will bring finality and permanence with respect to respondent’s own claim of parental rights. Thus, we are not pe rsuaded that the trial court clearly erred on this point.

Finally, respondent asserts that the trial court clearly erred in its best interest determination because respondent requested that his sister or m other care for KS, and petitioner allegedly made no effort to investigate these potential relativ e caregivers. This argument is unrelated to the child’s best in terests; instead, it concerns r espondent’s ability to provide care and custody despite incarceration. To that end, it relates to the trial court’s termination of parental rights under MCL 712A.19b(3)(g) and (h). But we decline to address termination under these grounds having already determined that termination was proper u nder MCL 712A.19b(3)( i ). In re Utrera , 281 Mich App at 24.

In sum, the trial court did not clearly err in finding that te rmination was in KS’s best interests where respondent could not provide the care and custo dy that KS needed, where KS needed stability and long-term planning, where respondent had a history of criminality, where respondent would not be released from prison for a substantial amount of time, and where respondent did not benefit from services offered in a prior ter mination proceeding. In re Trejo
, 462 Mich at 356-357.

Affirmed.

/s/ Stephen L. Borrello /s/ Jane E. Markey /s/ Michael J. Riordan