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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re VILLANUEVA, Minor. April 13, 2017

No. 333913 Ingham Circuit Court Family Division LC No. 14-001032-NA

Before: B ORRELLO , P.J., and W ILDER and S WARTZLE , JJ.

P ER C URIAM

. Respondent-father appeals by right a June 21, 2016, trial court order terminating his parental rights to MINOR CHILD (d/o/b 8/17/2014) under MCL 712A .19b(3)(h), MCL 712A.19b(3)(g), MCL 712A.19b(3)(j) and MCL 712A.19b(3)(i). For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

Respondent-father is the biological father of eight children i ncluding the minor child who is the subject of this appeal. Respondent-father’s parental ri ghts to five other children were previously terminated in Eaton County. At the time of his birth, the minor child suffered from withdrawal symptoms and had a Finnegan score between 12 and 8. Respondent-mother admitted to using heroin while she was pregnant with the minor child. O n August 20, 2014, the Department of Health and Human Services (DHHS), filed a petitio n to remove the minor child from respondent-mother’s care. The petition alleged that respo ndent-mother tested positive for methamphetamine, heroin and marijuana. Respondent-mother also was in violation of a nocontact order with the father of another one of her children an d there was domestic violence in the residence. Respondent-mother continued to relapse and she left an inpatient rehabilitation treatment program. The court removed the minor child from resp ondent-mother’s care two days after his birth, and he was placed in foster care. Respondent- mother was ordered to comply with a service plan and she participated in parenting visits. At th at time of the removal, the minor child’s father was unknown and resp ondent-father was serving a lengthy prison sentence.

Following several dispositional review hearings, on June 26, 2 015, the court entered an order indicating that respondent-mother was not benefitting fro m services, that her participating was sporadic, and that it was un likely that respondent-mother w ould benefit from services within a reasonable amount of time. The permanency planning goal was changed from reunification to adoption.-2- On July 31, 2015, the court authorized a petition to terminate respondent-mother’s parental rights to the minor c hild. Shortly thereafter, respon dent-father, in propria persona, moved for appointment of counsel, asserting that he was the fat her of the minor child and he requested that the minor child b e placed with his mother, the m inor child’s paternal grandmother. In the meantime, following a hearing, on October 14, 2015, the trial court entered an order terminating respondent-mother’s p arental rights to the minor ch ild. That order is not at issue in this his appeal and respondent-m other is not a party to this ap peal.

On October 16, 2015, with respect to respondent-father, DHHS f iled a petition to terminate respondent-father’s rights to the minor child, citing respondent’s extensive criminal history and noting that respondent -father was sentenced to a 72 -360 month prison sentence in 2014. DHHS then filed another petition adding an allegation th at respondent-father’s rights to five other children were terminated in Eaton County. At the ti me of the petitions, respondent was imprisoned following a conviction of home invasion, second degree, and he was sentenced as a habitual offender, fourth offense, to 72 to 360 months in prison.

On October 22, 2015, the trial court held a pretrial hearing w here respondent-father participated via telephone from prison. The court indicated th at it received respondent-father’s acknowledgement of parentage of the minor child and appointed c ounsel for respondent-father.

On March 18, 2016, the trial court held a jury trial to determ ine whether to assume jurisdiction per MCL 712A.2(b)(2 ). Respondent-father testified at the trial about his criminal history. Respondent-father was co nvicted twice as a juvenile o f domestic violence in 1995. In 1998 he was convicted of assault and battery; in 1999 he was ch arged with three counts of receiving and concealing stolen property over $100, was convict ed of one count, and was sentenced to 40-60 months imprisonment. Shortly after his rele ase from prison in 2003, respondent-father pleaded no cont est to breaking and entering a nd was again incarcerated until 2006. Upon his release in 2006, respondent-father was convicte d of disturbing the peace and possession of marijuana in 2007. In 2010, respondent-father wa s convicted of resisting and obstructing a police officer. In 2012 respondent-father was co nvicted of a misdemeanor larceny. Then, on October 2012, respondent-father was convicted of secon d-degree home invasion and was sentenced to 365 days in ja il and released on probation. R espondent-father violated the probation and was then sentenced to 72-360 months imprisonment. Respondent-father admitted that he had never met the minor child, but blamed petitioner fo r refusing to allow him to visit the minor child. Respondent-father admitted that his earliest rele ase date was 2020 and he could be incarcerated until the minor child was age 38. The jury found that a preponderance of the evidence supported th e court assuming jurisdiction under MCL 71 2A.2(b).

Petitioner filed a supplemental petition to terminate responde nt-father’s rights pursuant to MCL 712A.19b(3)(g) (h) (j) and (l). The petitioner alleged tha t respondent-father had 12 prior felony and misdemeanor convictions, including the 2012 second-d egree home invasion for which he received a 6 to 30-year prison sentence on September 18, 201 4. The petitioner also asserted that respondent-father’s parental rights to five other children were terminated in Eaton County. His rights to three sons were terminated on March 16, 2004, fol lowing a petition alleging physical abuse and a lack of financial and emotional support. His rights to two other children were terminated on January 11, 2005, based on lack of contact a nd support for more than two years. The petition in the present case alleged that responden t-father received “foster care-3- services, substance abuse servi ces, anger management classes an d parenting classes” in the prior Eaton County cases and he participated in an eight week “Father Factor program.” The petition alleged that respondent-father had never met the minor child an d that respondent-father’s earliest release date was 2020 and his latest release date was 2053 and that termination was in the minor child’s best interests.

On June 21, 2016, the trial court entered an opinion and order on the record terminating respondent-father’s parental rig hts. The court considered the record from the jurisdictional trial, the record from the Eaton County termination proceedings, and “ the testimony and evidence presented during the dispositional hearing.” 1 The court noted that responde nt-father provided the court with the names of his mother, a niece, and a cousin for p ossible placement. However, the court noted that DHHS and the gu ardian ad litem (GAL) both conc luded that none of the homes were suitable for the minor chil d. With respect to the paterna l grandmother, she had recent serious health issues and could not care for the minor child. With respect to the niece, the court noted that DHHS found that the niece’s home was not suitable. The niece had financial issues, her home was previously the subj ect of a CPS investigation invo lving domestic violence and homelessness and the niece’s husband had a criminal record. Inaddition, the niece was already caring for a one-year old nephew of her own, she was attempting to complete job training, and she had no relationship with the minor child. Finally, with re spect to respondent-father’s cousin, respondent-father did not discuss the issue with the cousin, he did not know the cousin’s address, and DHHS could not locate the cousin. In addition, DHHS determ ined that the minor child was in the same foster home where he had resided since his birth wi th an older sibling. He was well cared for, bonded and attached to the foster family. It was al so determined that removing the minor child from the foster family would be traumatic. For all of these reasons, the trial court determined that placement with a relative was not appropriate a nd therefore res pondent-father had failed to provide proper car e and custody of the minor chil d.

The court proceeded to find grounds for termination under MCL 712A.19b(3)(h), where there was clear and convincing evidence to show that respondent -father was incarcerated for such a period that the minor child would be deprived of a norma l home for more than two years and where respondent-father failed to provide proper care and c ustody of the minor child and there was no likelihood that he would do so within a reasonable amount of time. Respondentfather was sentenced to a lengthy prison term shortly before th e minor child’s birth and defendant’s earliest release date was in 2020.

The court also found grounds for termination under MCL 712A.19 b(3)(g), where respondent-father failed to provi de proper care and custody and there was no reasonable expectation that he could do so in a reasonable amount of time. In addition, the court found

1 The transcript to the dispositional hearing was not included i n the lower court record; however, respondent-father does not challe nge the court’s factual findin gs based on the evidence from that hearing, but rather challenges the legal conclusions the court reached based on that evidence— i.e. whether the facts, as found by the court, amounted to grou nds for termination and showed that termination was in MV’s best interests.-4- grounds for termination under MCL 712.19b(3)(j), were there was a reasonable likelihood that the minor child would be harmed if returned to respondent-fathe r’s home. The court noted that respondent-father’s repeated c riminality posed a risk of harm t o the minor child.

Finally, the court found grounds for termination under MCL 712 a.19b(3)(i), where the evidence showed that respondent-f ather’s rights to one or more of the minor child’s siblings had been terminated “due to serious and chronic neglect or physical or sexual abuse and prior attempts to rehabilitate . . . have been unsuccessful.” Specif ically, the trial court considered the record from Eaton County where two of respondent-father’s sons testified that he physically abused the children, their mother, and his girlfriends. In add ition, the children saw respondentfather “kick the dogs and make th e dogs fight each other for sp ort.” The court noted:

The two boys testified . . . to a horror story of repeated beat ings, mental and emotional abuse at the hands of their father. They lived in te rrible fear of their father while they lived with him. Both of the boys wanted thei r father’s rights terminated. It is clear that the [Eaton County] Court terminat ed father’s right due to serious chronic physical abuse of those children . . . . He ’s been offered and participated in programs through t he Department of Corrections prior this latest incarceration. He also participated in a domestic violence pro gram as well as substance abuse treatment . . . [minor child’s] biological moth er testified that the father was controlling so much so that she jumped out of a movi ng car to get away from him . . . . The father’s continued criminality and c riminal history also provides insight to the lack of be nefit that the father has rec eived from programming. It is noteworthy that the father’s parental right s were also terminated in a prior case to [two other children] yet he conti nued to be severely physically abusive to h is other children c onvincing this Court the prior attempts to rehabilitate the father have b een unsuccessful. There has been nothing offered to convince this Court otherw ise as to [minor child].

After finding statutory grounds f or termination, the court found that termination was in the minor child’s best interests. The court noted that the min or child was age two and had not met respondent-father and had no bond with him. The minor chil d would not be able to meet respondent-father until 2020 at the earliest when the minor chi ld would be age six and there was the potential that respondent-father would not be released unti l the minor child was age 38. Respondent-father showed no parent ing ability based on his cond uct that led to the Eaton County termination proceeding. He perpetrated physical, mental, and v erbal abuse upon his other children when he had custody of them and there was a long histo ry of domestic violence and criminality. In addition, the court found that the minor child needed permanency and stability and the minor child could not w ait until respondent-father was released from prison and reformed himself. The minor chi ld was bonded with his foster f amily where he lived with a biological sister who was previously placed with the foster fam ily. The court entered a written order terminating respondent-f ather’s parental rights on June 2 1, 2016. This appeal ensued.

II. JURISDICTION

Respondent-father argues that the court erred in assuming juri sdiction over the minor child.-5- We review “the trial court’s decision to exercise jurisdiction for clear error in light of the court’s findings of fact.” In re BZ , 264 Mich App 286, 295; 690 NW2d 505 (2004). “A finding of fact is clearly erroneous if the reviewing court has a defin ite 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.

“In child protective proceedings, the trial court must first d etermine whether it may exercise jurisdiction over the child.” In re PAP , 247 Mich App 148, 152; 640 NW2d 880 (2001). “To acquire jurisdiction, the factfinder must determine by a pr eponderance of the evidence that the child comes within the statu tory requirements of MCL 712A.2 [.]” In re Brock , 442 Mich 101, 108-109; 499 NW2d 752 (1993). A court cannot terminate parental rights “unless jurisdiction exists unde r MCL 712A2.2(b)[.]” In re Ramsey , 229 Mich App 310, 314; 581 NW2d 291 (1998).

In this case, the jury found th ere was a preponde rance of the evidence to support the court taking jurisdiction over the mi nor child pursuant to MCL 712A.2 (b)(2), which provides that a court has jurisdiction under the following relevant circumstanc es:
Whose home or environment, by reason of neglect, cruelty, drunk enness, criminality , or depravity on the part of a parent, guardian, nonparent adu lt, or other custodian, is an unfit place for the juvenile to live in. [Emphasis added.]

In this case, petitioner argued that there were statutory grou nds for jurisdiction based on respondent-father’s criminality. To assume jurisdiction on the basis of criminality, “[t]he petitioner . . . must demonstrate by a preponderance of the evi dence only that the respondent engaged in criminal behavior,” In re MU , 264 Mich App 270, 279; 690 NW2d 495 (2004), and that the criminal behavior rendered the home or environment unf it for the child to live in. MCL 712A.2(b)(2).

In this case, respondent-father h ad a substantial criminal his tory dating all the way back to 1995 when he was convicted as a juvenile. Respondent-father was convicted twice as a juvenile of domestic violence in 1995. In 1998 he was convicte d of assault and battery; in 1999 he was charged with three counts of receiving and concealing st olen property over $100, was convicted of one count, and was sentenced to 40-60 months impri sonment. Shortly after his release from prison in 2003, he pleaded no contest to breaking and entering and was again incarcerated until 2006. Upon his release in 2006, respondent- father was convicted of disturbing the peace and possession of m arijuana in 2007. In 2010, respon dent-father was convicted of resisting and obstructing a poli ce officer. In 2012 he was con victed of a misdemeanor larceny. Then, in October 2012, respondent-father was convicted of secon d-degree home invasion and was sentenced to 365 days in j ail and released on probation. I n 2014, respondent-father violated the probation and was sentenced to 72-360 months imprisonment. On this record, the jury did not clearly err in finding that a preponderance of the evidence supported the court assuming jurisdiction under MCL 712A.2(b)(2).

Respondent-father argues that his criminal status alone cannot be grounds to assume jurisdiction and that he had a re lative that could have provide d a home for the minor child. These arguments lack merit. Here, it is clear that respondent- father’s criminal status was not the-6- sole basis for the court assumi ng jurisdiction. Rather, respon dent-father’s long history of criminality showed that an environment with him was unfit for the minor child; thus, the trial court had authority to take jurisdiction under MCL 712A.2(b)(2) . Whether respondent-father had a relative who could care for the minor child concerned the termination proceeding, not the jurisdictional phase of the proceeding. See In re Olive/Metts Minors , 297 Mich App 35, 43; 823 NW2d 144 (2012). Unlike the termination phase, a court need no t consider placement with a relative during the jurisdictiona l phase of the proceeding. MC L 712A.2(b)(2). In sum, the court did not err in assuming jurisdict ion over the minor child.

III. STATUTORY GROUNDS

Next, respondent-father argues that the trial court erred in f inding statutory grounds for termination.

We review a trial court’s finding that a statutory ground for termination has been proved by clear and convincing evidence for clear error. MCR 3.977(K) ; In re Utrera , 281 Mich App 1, 15; 761 NW2d 253 (2008). “A finding is clearly erroneous if, a lthough there is evidence to support it, this Court is left w ith a definite and firm convict ion that a mistake has been made.” In re Hudson , 294 Mich App 261, 263; 817 NW2d 115 (2011).

In this case, the trial court terminated respondent-father’s p arental rights under several provisions including MCL 712A.19b(3 )(h), which provides that th e court may terminate parental rights where there is clear and convincing evidence that:

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 c ustody, 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.

Our Supreme Court has previous ly explained that MCL 712A.19b(3) (h) authorizes termination if each of the following three conditions is met:

The parent is imprisoned for such a period that [1] the child w ill 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 will be able t o provide proper care and custody within a reasonable time considering the child’s age. [ In re Mason , 486 Mich 142, 160-161; 782 NW2d 747 (2010).]

Although a parent is incarcerated and cannot personally care fo r a child, a parent can nevertheless “provide for a c hild’s care and custody although t he parent is in prison .” Id . at 161.

In this case, the trial court did not clearly err in finding g rounds for termination under MCL 712A.19b(3)(h). There was evidence that respondent-father would be imprisoned for more than two years from the time of the termination petition. Resp ondent-father was sentenced in 2014 three months before the minor child’s birth to a minimum s entence of six years, meaning that his earliest release was 2020. In addition, respondent-fa ther had not provided for the minor-7- child’s proper care and custody. Respondent-father did not ide ntify a relative who could provide a suitable home for the minor child. Respondent-father does no t dispute that court’s factual findings that his mother could notprovide for care as she was ill. Similarly, the other two relatives who were identified were not suitable homes for the m inor child. Finally, there was no expectation that respondent-fath er could provide proper care an d custody within a reasonable amount of time. Respondent-father was sentenced to 6-20 years’ imprisonment, he had a lengthy history of criminality and domestic violence, and he did not be nefit from services during the prior Eaton County termination proceeding. In short, the trial court did not clearly err in finding grounds for termination under MCL 712A.19b(3)(h).

Respondent-father argues that he proposed that the minor child be placed with relatives and he argues that DHHS’ refusal to place the minor child with one of the relatives amounted to error. This argument lacks merit. A trial court must consider whether placement with a relative is possible before terminating parental rights. See In re Olive/Metts , 297 Mich App at 43 (“A trial court’s failure to explicitly address whether termination is appropriate in light of the children’s placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal.”)

Here, the trial court did cons ider placement with the three re latives named by respondentfather and the court made findings as to each of those relative s to show why placement was not possible. Respondent-father does not challenge the specific fi ndings about the relatives, but rather argues that the facts cited by the court did not support the court’s determination that placement with a relative was not in the minor child’s best int erests. However, the court’s findings were not clearly erroneous. The court noted that the paternal grandmother could not care for the minor child because she suffered an illness. The niece was not a viable placement option; the niece was balancing a job training program, work, a nd caring for a nephew of her own. In addition, she was previ ously subject to a CPS investig ation and her husband had a criminal record. Furthermore, the minor child was attached to his foster family and placement with the foster family allowed him to be raised with his biolog ical sister who was also placed in the foster family. The court pr operly considered placement with relatives and it did not clearly err in determining that placement was not viable and not in the minor child’s best interests. Respondent-father’s arguments t o the contrary lack merit.

In addition to properly finding grounds for termination under MCL 712A.19b(3)(h), there was also clear and convincing ev idence to support termination under (3)(i), which provides that termination is proper where “Par ental rights to 1 or more sibli ngs of the child have been terminated due to serious and chronic neglect or physical or se xual abuse, and prior attempts to rehabilitate the parents have b een unsuccessful.” The trial co urt considered the record from the proceedings in Eaton County wher e respondent-father’s parental rights to three children were terminated. In that case, the trial court terminated responden t-father’s parental rights under several statutory provisions i ncluding MCL 712A.19b(j) for evid ence that “[t]here 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 return ed to the home of the parent.” The Eaton County court made findings in that case that responde nt-father phys ically and men tally abused the minor child’s siblings. The court noted that testimony of two of the childre n showed that th e younger child “could not handle getting hit agai n,” and that the older child took a “beating at the hands of his father” so that the younger child did not have to suffer the be ating. The court found that the-8- children “lived in terrible fear of their father,” and told a “ horror story of repeated beatings, mental and emotional abuse at t he hands of their father.”

Respondent-father does not dispute that he previously received services in connection with the prior termination proceeding. Based on the evidence f rom the Eaton County case, the trial court in this case did not err in finding that parental r ights to one or more of the minor child’s siblings were terminated “due to serious and chronic ne glect or physical . . . abuse and prior attempts to rehabilitate the parents have been unsuccessf ul.” MCL 712A.19b(i). Given that there was one ground for termination, we need not address the other grounds r elied on by the trial court. In re Ellis , 294 Mich App 30, 32; 817 NW2d 111 (2011).

IV. BEST INTERESTS

Respondent-father argues that the trial court erred in finding that termination was in the minor child’s best interests.

Under MCL 712A.19b(5), “[i]f the court finds that there are gr ounds for termination of parental rights and that termina tion of parental rights is in t he child’s best interests, the court shall order termination of parental rights and order that addit ional efforts for reunification of the child with the parent not be made.” Whether termination of par ental rights is in a child’s best interests is determined by a preponderance of the evidence. In re Olive/Metts , 297 Mich App at 40. We review for clear error a trial court’s determination wh ether termination of parental rights is in a child’s best interests. In re Payne/Pumphrey/Fortson , 311 Mich App 49, 63; 874 NW2d 205 (2015).

Here, the evidence showed that the minor child had no bond wit h respondent-father and had not met respondent-father before. Respondent-father was se rving a lengthy prison sentence and respondent-father showed no ability to provide proper care and custody of the minor child. He was unable to identify a relative who could care for the min or child and the earliest respondent-father would be released was in 2020. Even after hi s release, respondent-father would need to show that he benefitted from services, something he was unable to do in prior proceedings. In prior proceedings, respondent-father failed to benefit from services and showed no ability to parent or care fo r his children. Respondent-fath er had a lengthy history of criminality. He showed repeatedly that he was unable to conform his behavior to the law. He previously abused his children, the mother of his children, his pets, and his girlfriends. Respondent-father showed no ability to overcome his violent pas t and there was no evidence to show that he would provide a safe and stable environment for th e minor child at any time in the future. In contrast, as previ ously stated, the minor child was bonded with his foster family where he had lived since birth. The minor child was placed with a bi ological sister and his foster family provided the safety, stability and permanency that he ne eded. In sum, the trial court did not clearly err in finding that t ermination was in the minor ch ild’s best interests.-9- Affirmed.

/s/ Stephen L. Borrello /s/ Kurtis T. Wilder /s/ Brock A. Swartzle