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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

UNPUBLISHED

July 6, 2017

In re HAMMINGA/LONG, Minors. Nos. 334147; 334148

St. Joseph Circuit Court

Family Division

LC No. 06-001205-NA

Before: TALBOT, C.J., and BECKERING and M.J. KELLY, JJ.

PER CURIAM.

Respondents are the biological mother of MH and JL, and the biological father of JL. 

Respondent mother appeals as of right the trial court order terminating her parental rights to the 

minor children MH and JL under MCL 712A.19b(3)(g) (failure to provide proper care and 

custody) and (j) (child will be harmed if returned to parent). Respondent father appeals as of 

right the trial court order terminating his parental rights to JL under MCL 712A.19b(3)(a)(ii) 

(abandonment), (g), and (j). We affirm.

Petitioner, the Department of Health and Human Services (DHHS) removed MH from 

mother’s care in 2006 due to mother’s methamphetamine use and domestic violence between 

mother and her boyfriend, respondent father, and returned her to mother’s care in 2008.1 The 

DHHS removed MH and JL from respondents’ care in 2010 due to mother’s methamphetamine 

use and father’s use of the residence as a methamphetamine laboratory, and returned them to 

mother’s care in 2011. The trial court assumed jurisdiction over the minor children again in

August 2015, after the DHHS filed a petition on August 17, 2015, alleging that mother and her 

friends smoked methamphetamine in mother’s residence. Mother’s friends tested positive for 

methamphetamine, but mother refused to take a drug screen. When contacted by the DHHS, 

father refused to cooperate.

From August 2015 to May 2016, mother generally cooperated with the DHHS and 

completed all requested services. She maintained employment and acted appropriately with the 

children during parenting time. However, mother tested positive for methamphetamine once in 

 1 The agency involved in these actions was the Department of Human Services (DHS). In April 

2015, the DHS merged with the Department of Community Health (DCH) to form the DHHS. 

To avoid confusion, we will refer to actions taken by the DHS as taken by the DHHS.
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January 2016, twice in March 2016, and once in May 2016. Mother also initially lied to the 

DHHS concerning her March and May positive results. Father exercised parenting time with JL 

once in October 2015, subsequently ending all contact with the DHHS and JL. Father was 

incarcerated in Indiana in March 2016. On March 31, 2016, the DHHS filed a petition seeking 

termination of respondents’ parental rights to the minor children.

Following a May 31, 2016 hearing on the petition, during which the trial court found that 

clear and convincing evidence established the statutory grounds for the termination of 

respondents’ parental rights and that termination was in the children’s best interests, the trial 

court entered an order terminating respondents’ parental rights. Delivering its ruling from the 

bench, the trial court summarized the main issue in this case as follows:

This case really, really bothers me, because this is the third time around, 

and always it had to do with methamphetamine. That’s the connective trail 

throughout all three of these cases. Three times with [MH] and two times with 

[JL]. 

These children have been removed, mother has gotten her act back 

together enough that we’ve returned the children, to have mother again go back to 

methamphetamines, which lead also to the domestic violence and being around 

inappropriate people that cause all kinds of damage to the children, particularly 

MH because she’s older. 

The damage that’s been done to [MH] is really exemplified in–in two 

things here in particular. One is the psychological evaluation of Doctor Haugen, 

and the other one, which is really graphic . . . is the song that [MH] wrote. And it 

wasn’t in therapy, as her counselor had said. And I’ll quote the same part that the 

Lawyer Guardian Ad Litem [sic]: 

“My life started bad

Yes, it’s kind of sad

My mom had chose drugs

Which makes me really mad

She chose them over me

And took my brother’s pee

It made me feel scared

And my brother was feared

She was never home

And never left a phone

She would always lie

And tell us to go die

Whenever she was high.”

And on it goes.
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On appeal, mother argues that the trial court erred when it found that clear and 

convincing evidence supported termination of her parental rights under MCL 712A.19b(3)(g) 

and (j). We disagree.

To terminate parental rights, the trial court must find that one of the statutory grounds for 

termination set forth in MCL 712A.19b(3) has been established by clear and convincing 

evidence. In re McIntyre, 192 Mich App 47, 50; 480 NW2d 293 (1991). Once the trial court 

finds grounds for termination and finds by a preponderance of the evidence that termination is in 

the best interests of the child, the trial court must order termination of parental rights. MCL 

712A.19b(5). This Court reviews the trial court’s decision to terminate parental rights for clear 

error. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). 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).

Termination under MCL 712A.19b(3)(g) is proper when “[t]he parent, without regard to 

intent, fails to provide proper care and 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.” “A parent’s failure to participate in and benefit from a service 

plan is evidence that the parent will not be able to provide a child proper care and custody.” In 

re White, 303 Mich App 701, 710; 846 NW2d 61 (2014).

The trial court did not err in finding grounds to terminate mother’s parental rights 

pursuant to MCL 712A.19b(3)(g). She initially failed to provide proper care for the minor 

children by using methamphetamine and allowing others using methamphetamine to reside in her

home. When she was using methamphetamine, mother failed to provide food for the minor 

children, and she hoarded urine from JL to use for drug screens. Because mother was unable to 

care for the children, MH attempted to fill the role of caretaker for JL. This role reversal caused 

MH significant psychological harm, as demonstrated by her diagnosis of Post-Traumatic Stress 

Disorder (PTSD).

Mother argues on appeal that her newfound commitment to services and ability to 

maintain sobriety at the outset of the case—from August 2015 to January 2016—supports the 

conclusion that she will be able to provide proper care and custody to the children. However, 

mother must demonstrate not only that she complied with the service plan, but that she benefited 

from it. In re White, 303 Mich App at 710. The record indicates that mother did not benefit 

from services because she continued to use methamphetamine. Mother received services from 

December 2006 to January 2008, March 2010 to March 2011, and August 2015 to May 2016. 

Despite years of services concerning her methamphetamine use and parenting skills, mother 

continued to use methamphetamine. Mother tested positive for methamphetamine in January 

2016, March 2016, and May 2016, with the last positive test occurring 22 days before the 

termination hearing. Mother chose to use methamphetamine repeatedly, despite knowing that it 

constituted a violation of her service plan and harmed her children. She also chose to use 

methamphetamine after reading the song written by MH that was referenced by the trial court, 

which described MH’s sadness about mother choosing drugs over her children. Mother also lied 

to her caseworker concerning her March 2016 and May 2016 positive drug screens. Further, 

mother avoided her scheduled therapy and failed to seek additional treatment in May 2016,

despite her relapse.
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Although mother was able to maintain sobriety from August 2015 to January 2016, the 

evidence demonstrates that mother was not, in fact, capable of maintaining sobriety long-term. 

The concerns expressed at the termination hearing included that mother had been able to achieve 

sobriety temporarily in earlier proceedings, only to return to methamphetamine once the DHHS 

returned her children to her care. Therefore, mother’s brief sobriety in the current proceedings 

did not demonstrate that she will be able to provide proper care and custody to the children. 

Additionally, both the caseworker and MH’s therapist testified to their belief that the children 

would be at risk of harm if returned to mother. Considering mother’s failure to succeed after 

multiple removals and years of services, the identification of mother’s substance abuse as a longterm issue in mother’s psychological evaluation, and the children’s ages and need for stability, 

the trial court did not clearly err in finding that mother would be unable to provide proper care 

and custody within a reasonable time. Because the trial court did not clearly err in finding one 

statutory ground for termination, we need not consider the additional statutory ground on which 

the trial court based its decision. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).

To the extent that mother argues that the trial court erred in its findings because the 

DHHS did not give her the opportunity to participate in conjoint therapy with MH as 

recommended by MH’s psychological evaluation, we find this argument unpersuasive. The

DHHS is required to offer reasonable services; it has no duty to provide every conceivable 

service. In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008); MCL 712A.18f(4). It certainly 

has no duty to provide a service conditioned on a parent’s progress in addressing her substance 

abuse issues and a child’s progress in counseling therapy at a time when neither parent nor child 

satisfactorily meets those conditions. The recommendation for conjoint therapy with MH was 

conditioned on MH’s progress in therapy and mother’s progress with her substance abuse issues. 

Mother did not progress, as demonstrated by her positive drug screens in January 2016, March 

2016, and May 2016, and in the opinion of MH’s therapist, conjoint therapy would have been 

harmful to MH.

Although father does not challenge the trial court’s finding of statutory grounds to 

terminate, we note that such challenge would be unavailing. Father ceased cooperating with the 

DHHS in October 2015, did not comply with the service plan, and demonstrated no ability to 

provide proper care and safety to JL. This is sufficient to support the trial court’s finding that 

statutory grounds existed for termination under MCL 712A.19b(3)(g). In re White, 303 Mich 

App at 710 (“A parent’s failure to participate in and benefit from a service plan is evidence that 

the parent will not be able to provide a child proper care and custody.”). As we noted with 

regard to mother, because the trial court did not clearly err in finding one statutory ground for 

termination, we need not address the additional statutory ground on which the trial court based 

its decision. In re HRC, 286 Mich App at 461.

Respondents also argue that, even if statutory grounds for termination exist, the trial court 

erred when it found that termination was in the minor children’s best interests. We disagree.

“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 terminate 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 or in writing its findings of fact 
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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 child’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 been in foster care and whether the 

child could be returned to the parent “within the foreseeable future, 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. 

To the extent respondents argue that the trial court should have to find by clear and 

convincing evidence that termination of parental rights is in the children’s best interests, we note 

that, in In re Moss, 301 Mich App 76, 84-90; 836 NW2d 182 (2013), we determined that the 

Legislature’s failure to define a standard of proof in MCL 712A.19b(5) indicated that a standard 

of proof of a preponderance of the evidence should be used. We further determined that a 

preponderance of the evidence standard of proof could be constitutionally applied to the bestinterest determination. Id. Respondents argue that In re Moss was inconsistent with In re 

Trejo’s “clear evidence” standard for the best-interest determination. However, as explained in 

In re Moss, MCL 712A.19b(5) was amended after the In re Trejo decision and the word 

“clearly” was removed from the statute. Id. at 83. Accordingly, respondents have failed to 

demonstrate that In re Moss was wrongly decided.

As to the best-interest determination in the present case, the record establishes that the 

minor children were removed in August 2015. Mother never exercised unsupervised parenting 

time as to either child. Mother exercised supervised parenting time approximately once a week 

when it was not suspended due to methamphetamine use. Father exercised parenting time only 

once in October 2015. 

Any bond that may have existed between parents and the children was strained by 

respondents’ methamphetamine use and father’s absence. MH’s bond with mother also suffered

due to MH’s multiple removals from mother. MH indicated an awareness that mother 

consistently chose methamphetamine over her children. She also expressed disappointment and 

anger when mother’s parenting time was suspended due to methamphetamine use. JL did not 

appear to have any bond with mother at parenting time. Other than a brief period of contact in 

2015, JL had no contact and no relationship with father. Accordingly, very little bond existed 

between MH and mother, and JL and respondents. 

The children were in care for nine months. During this time, mother demonstrated an 

inability to benefit from services offered. Father demonstrated an unwillingness to cooperate 

with the DHHS or to attend services. Accordingly, it was “unlikely that the child[ren] could be 

returned to [their] parents’ home within the foreseeable future,” and termination of respondents’ 

parental rights was proper to facilitate a permanent, safe future for the children. In re Frey, 297 

Mich App 248-249. Although mother argues on appeal that she demonstrated an improvement 

in her ability to maintain sobriety, the children cannot be expected to wait indefinitely for 

mother’s uncertain improvement and, in doing so, forgo a safe and stable home. Accordingly, 

the evidence established that termination of mother’s parental rights was in the children’s best 
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interests. The evidence also established that termination of father’s parental rights was in JL’s 

best interests.

Respondents argue that the trial court failed to properly consider the children’s 

placements with relatives when making this best-interest determination. MH was placed with 

her biological father, and JL was placed with his paternal aunt. “[T]he fact that a child is living 

with relatives when the case proceeds to termination is a factor to be considered in determining 

whether termination is in the child’s best interest.” In re Olive/Metts Minors, 297 Mich App at 

43. The trial court appropriately considered the minor children’s relative placement. The trial 

court reviewed the custody order placing MH with her father and JL’s paternal aunt’s testimony. 

It opined that the minor children were in need of stability and permanency, and found that MH 

had found the stability and permanence she needed in her father’s home and that JL had found 

the stability and permanence he needed in his paternal aunt’s home. The trial court also 

referenced the children’s placements in its discussion regarding potential adoption. Accordingly, 

respondents have not demonstrated error sufficient to merit remand to the trial court.

Respondents also argue that the trial court should not have considered the potential for 

adoption of MH and JL because they were in relative placements. The assumption underlying 

respondents’ argument is that, because the aim of adoption is stability, and placement with a 

relative provides more stability than placement in a foster home, the possibility of adoption 

should not weigh in favor of termination when placement is with relatives because the placement 

provides stability. Respondents provide no authority supporting this assertion. Further, relative 

placement alone is not necessarily a permanent solution. Like foster-care placement, placement 

with a relative can be temporary. Considering the likelihood of adoption, whether by a foster 

parent or a relative, allows the trial court to determine whether a child will find a stable, 

permanent home once parental rights are terminated.

We conclude that the trial court did not err in terminating respondents’ parental rights.

Affirmed.

/s/ Michael J. Talbot

/s/ Jane M. Beckering

/s/ Michael J. Kelly