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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re DAVIS/FERO, Minors. June 8, 2017

No. 335486 Cheboygan Circuit Court Family Division LC No. 14-008457-NA

Before: S WARTZLE , P.J., and S AAD and O’C ONNELL , JJ.

P ER C URIAM

. The trial court terminated respondent S. Fero’s parental right s to five of her children, BD, DD, AF, RF, and JF, pursuant to MCL 712A.19b(3)(a)( ii ) (desertion), (b)( ii ) (failure to prevent injury or abuse), (c)( i ) (the conditions that led to adj udication continue to exist), (c)( ii ) (other conditions that caused the children to come within the court’s jurisdiction exist), (g) (parent failed to provide proper care and custody), and (j) (reasonable likelihood that the children will be harmed if returned to the parent). 1 Respondent appeals as of right. We affirm.

I. FACTUAL BACKGROUND

Respondent’s relationship with her husband R. Fero involved do mestic violence. In October 2014, respondent received abusive text messages from R. Fero while she was at work, feared for her children’s safety, and called the police. Child protective serv ices worker Doug Gilmet testified that he and res pondent agreed that she would t ake the children to a shelter. Instead, respondent and R. Fero took the children to Florida. Accordingly, the trial court entered an ex-parte order for the childre n’s removal. The children the n returned to Michigan and entered foster care on October 17, 2014.

The trial court took jurisdicti on over the children on Februar y 4, 2015. Respondent admitted that the children witnessed R. Fero abuse her and that she failed to protect the children from physical and verbal abuse by R. Fero. The trial court the n ordered respondent to participate in services. Services included domestic violence counseling, t herapy for the children, parenting

1 Respondent R. Fero is the father of DD, AF, RF, and JF. The t rial court also terminated his parental rights. However, res pondent R. Fero is not a party to this appeal.-2- classes, and parenting time. An amended petition further alleg ed that respondent’s housing and income were unstable and inadequate.

Initially, respondent participa ted in services. However, her participation decreased over time. Then, respondent stopped vi siting her children. Additio nally, respondent filed for divorce, but the case was dismisse d for lack of progress.

On September 15, 2016, petitioner filed a petition to terminat e respondent’s parental rights. The trial court then hel d a termination hearing. At the conclusion, the trial court found statutory grounds to terminate re spondent’s paren tal rights, co ncluded that termination was in the children’s best interests, and e ntered an order terminating res pondent’s parental rights.

II. STANDARD OF REVIEW

We review for clear error the trial court’s factual findings, In re Mason , 486 Mich 142, 152; 782 NW2d 747 (2010), conclusi ons regarding statutory groun ds for termination, id
., and conclusions regarding the children’s best interests, In re White , 303 Mich App 701, 713; 846 NW2d 61 (2014). A finding “is clearly erroneous if [we] ha[ve] a definite and firm conviction that a mistake has been committed.” In re BZ , 264 Mich App 286, 296-297; 690 NW2d 505 (2004).

III. STATUTORY GROUNDS

Respondent argues that the trial court erred in finding that c lear and convincing evidence established statutory grounds f or termination. We disagree.

The trial court must find clear and convincing evidence of at least one statutory ground listed in MCL 712A.19b(3) to terminate parental rights. In re VanDalen , 293 Mich App 120, 139; 809 NW2d 412 (2011).

In this case, the trial court concluded that statutory grounds existed to terminate respondent’s parental ri ghts under MCL 712A.19b(3)(a)( ii ), (b)( ii ), (c)( i ), (c)( ii ), (g), and (j). None of these conclusions are clearly erroneous.

To terminate parental rights pursuant to MCL 712A.19b(3)(a)( ii ), the trial court must find clear and convincing evidence that a “parent has deserted the c hild for 91 or more days and has not sought custody of the child during that period.” A parent deserts a child when he or she intentionally or willfully aba ndoned a child for at least 91 da ys prior to the filing of the termination petition. In re B & J , 279 Mich App 12, 18-19 n 3; 756 NW2d 234 (2008); See In re Laster , 303 Mich App 485, 492; 845 NW2d 540 (2013). This Court has u pheld termination orders when a parent had little or no contact with a child and failed to comply with services during this time period. See, e.g., In re Hall , 188 Mich App 217, 223-224; 469 NW2d 56 (1991); In re Laster , 303 Mich App at 492.

At the time petitioner filed the termination petition in this c ase, respondent had not seen any of her children for over 91 days. She had no contact with BD and DD. She asked about speaking to the younger children by phone, but did not follow up on her inquiry. Additionally, she did not comply with services during the relevant 91-day per iod. She did not attend-3- counseling consistently, seek par enting time, have stable housi ng, or have verifiable income. Therefore, the trial court did not clearly err in finding statutory grounds to terminate respondent’s parental right s under this subsection.

The trial court must find clear and convincing evidence that “ [t]he child or a sibling of the child has suffered physical injury or physical . . . abuse, ” “[t]he parent who had the opportunity to prevent the physical injury or physical . . . fa iled to do so,” and “there is a reasonable likelihood that the child will suffer injury or abus e in the foreseeable future if placed in the parent’s home” to terminate parental rights pursuant to MCL 712A.19b(3)(b)( ii ). Accordingly, this Court will uphold a finding of a reasonable l ikelihood of future harm if the parent continually placed her ch ildren in the care of an abuser after knowing about the abuse, In re Brown/Kindle/Muhammad Minors , 305 Mich App 623, 636-637; 853 NW2d 459 (2014), or placed her desire to have a relationship with an abuser over th e needs of her children, In re Gonzales/Martinez Minors , 310 Mich App 426, 432; 871 NW2d 868 (2015).

In this case, respondent agreed that R. Fero physically abused the children. Further, she agreed that she failed to protect the children from this abuse because she did not remove them from the home. In October 2014, respondent called the police w hen she feared that R. Fero was harming the children, formed a plan to take the children to a s helter, but, instead, went to Florida with the children and R. Fero. At the time of the termination hearing, respondent re mained married to R. Fero, had no explanation for her failure to pursu e the divorce to completion, and would not disclose her address. Therefore, the trial court did not clearly err in finding statutory grounds to terminate respondent’s p arental rights under this su bsection.

To terminate parental rights pursuant to MCL 712A.19b(3)(c)( i ), the trial court must find clear and convincing evidence th at “182 or more days have elaps ed since the issuance of an initial dispositional order,” [t]he conditions that led to the adjudication continue to exist,” and “there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.”

The trial court entered this cas e’s initial disposition order i n February 2015. Adjudication occurred because the children witnessed domestic violence betwe en respondent and R. Fero, and the respondent failed to protect t he children from R. Fero’s ph ysical and verbal abuse. At the time of the termination hearing, respondent remained married to R. Fero, had no explanation for her failure to divorce him, and would not disclose her address. Further, respondent failed to engage consistently in counselin g to address domestic violence. Therefore, the trial court did not clearly err when it found statutory grounds to terminate respon dent’s parental rights under this subsection.

The trial court must find clear and convincing evidence that “1 82 or more days have elapsed since the issuance of an initial dispositional order, “ [o]ther conditions exist that cause[d] the child to come within the court’s jurisdiction, the parent h as received recommendations to rectify those conditions,” “the parent has received notice and a hearing and has been given a reasonable opportunity to rectif y the conditions ,” “the conditi ons have not been rectified,” and “there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age” t o terminate parental rights pursu ant to MCL 712A.19b(3)(c)( ii ).-4- In this case, petitioner allege d that other conditions caused t he children to come within the trial court’s jurisdiction: respondent had unstable housin g, had unstable income, and failed to benefit from services. The trial court indicated at adjudicati on that the Department of Health and Human Services would provide res pondent housing and employment assistance. The trial court then monitored her progress through several dispositional revie w hearings. During this time, respondent moved multiple times and quit at least one job. At the time of the termination hearing, respondent had failed to secure stable housing and ver ifiable employment sufficient to support herself and the children. Therefore, the trial court d id not clearly err i n finding statutory grounds to terminate respondent’s p arental rights under this su bsection.

To terminate parental rights pursuant to MCL 712A.19b(3)(g), th e trial court must find clear and convincing evidence that “[t]he parent, without regar d to intent, fails to provide proper care or custody for the child and there is no reasonable expect ation that the parent will be able to provide proper care and custody within a reasonable time consid ering the child’s age.” If a parent fails to participate in and benefit from a treatment pla n, we will conclude that the parent “will not be able to provide a c hild proper care and custody.” In re White , 303 Mich App at 710.

Respondent did not fully comply w ith or benefit from services i n this case. At the time of the termination hearing, the children had been in foster care f or nearly two years. No evidence showed that respondent was reasonably likely to be able to prov ide proper care and custody for the children within a reasonable time. Therefore, the trial co urt did not clearly err in finding statutory grounds to ter minate respondent’s parental rights und er this subsection.

The trial court must find clear and convincing evidence that “[ t]here is a reasonable likelihood, based on the conduct or capacity of the child’s par ent, that the child will be harmed if he or she is returned to the home of the parent” to terminate p arental rights pursuant to MCL 712A.19b(3)(j). Actual physical abuse need not be established. See In re Hudson , 294 Mich App 261, 268; 817 NW2d 115 (2011). This Court must also consid er the risk of e motional harm. Id

. A “parent’s failure to comply with the terms and conditions of his or her service plan is evidence that the child will be harmed if returned to the paren t’s home.” In re White , 303 Mich App at 711.

Again, respondent did not comply with services. She remained m arried to R. Fero. One child continued to experience ni ght terrors and another child w as afraid of returning to respondent’s custody because of past events. Therefore, the tr ial court did not clearly err in finding statutory grounds to termi nate respondent’s parental ri ghts under this subsection.

IV. BEST INTERESTS

Respondent also argues that the trial court erred in finding t hat termination of her parental rights was in the children’s be st interests. We disagree.

After a trial court finds clear and convincing evidence of a st atutory ground supporting termination, the trial court must determine whether terminationis in a child’s best interests. In re Olive/Metts Minors , 297 Mich App 35, 40; 823 NW2d 144 (2012). In determining a c hild’s best interests, the trial court may consider the child’s need for st ability and permanency and whether the child is progressing in its current placement. In re VanDalen , 293 Mich App at 141-142. In-5- addition, the trial “court may consider the child’s bond to the parent,” “the parent’s parenting ability,” and “the advantages of a foster home over the parent’ s home.” In re Olive/Metts , 297 Mich App at 41-42. A trial court must terminate if it finds bya preponderance of the evidence that termination is in the child ’s best interests. MCL 712A.19 b(5); In re White , 303 Mich App at 713.

Here, the trial court properly considered the children’s best interests because it found statutory grounds suppor ting termination.

In considering the children’s be st interests, it found that the children had been in foster care for nearly two years and that the children deserved perman ence and stability. Respondent lacked stable housing, lacked stable employment, had not consis tently engaged in counseling, had not consistently engaged in parenting time, and could not m eet her children’s need for counseling. Further, BD and DD di d not wish to have a relation ship with respondent. In contrast, the trial court found that the foster parents were me eting the children’s needs, and the children were bonded to their foster parents. Therefore, the trial court did not clearly err in finding that termination was in t he children’s best interests.

We affirm.

/s/ Brock A. Swartzle /s/ Henry William Saad /s/ Peter D. O’Connell