-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re KIMMEL, Minors. January 12, 2017

No. 333523

St. Clair Circuit Court Family Division

LC No. 14-000278-NA

Before: B OONSTRA , P.J., and C AVANAGH and K. F. K ELLY , JJ.

P ER C URIAM

.

Respondent appeals as of right an order terminating his parent al rights to the two minor children under MCL 712A.19b(3)(c)( i ) (conditions that led to adjudica tion continue to exist), (g) (parent failed to provide proper care or custody), and (j) (rea sonable likelihood child will be harmed if returned to parent). We affirm.

Defendant was incarcerated at the time the children came into care following a domestic violence dispute between the ir mother and her boyfriend.

Respondent argues that the trial court clearly erred when it f ound clear and convincing evidence to terminate his par ental rights under MCL 712A.19b(3) (c)( i ), (g), and (j). We disagree.

“This Court reviews for clear error the trial court’s factual findings and ultimate determinations on the statutory grounds for termination.” In re White , 303 Mich App 701, 709; 846 NW2d 61 (2014). A trial court’s findings of fact are clear ly erroneous if “we are definitely and firmly convinced that it made a mistake.” Id . at 709-710.

In a termination proceeding, pe titioner has the burden of prov ing at least one statutory ground for termination by clear and convincing evidence. In re Ellis , 294 Mich App 30, 32; 817 NW2d 111 (2011). And in this case, termination of respondent’s parental rights was proper under MCL 712A.19b(3)(c)( i ), which provides that a parent’s rights may be terminated if “ 182 or more days have elapsed since the issuance of an initial disp ositional order” and “[t]he conditions that led to the adjudication continue to exist and t here is no reasonable likelihood that

the conditions will be rectified w ithin a reasonable time consi dering the child’s age.”

It is undisputed that the order terminating respondent’s paren tal rights was entered more than 182 days after the initial dispositional order was entered . The conditions that led to this adjudication were respondent’s c ontinued issues with substance abuse that led to his-2- incarceration, irregular contact with the children, and the lac k of a parental bond with them. The record shows that these conditions did not change. During the pendency of this case, respondent was released from jail on probation. He was required to partic ipate in an outpatient substance abuse program, but was terminated from the program after submit ting a “diluted drug screen” and missing a class. He was then transferred to a residential substance abuse program, where he continued to test positive for cocaine, opiates, and THC, befor e he left the facility. During this time, parenting-time sessions were scheduled and, other than at tending one, respondent missed them all—without even calling t o cancel or explain. At the one visit, respondent and the children did not show a parent-child bond. In fact, the children called respondent by his nickname, “Stewie.” Subsequently, respondent was jailed for violating th e terms of his probation. At the time of the termination hearing, respondent was still incarcera ted, without an anticipated release date. And respondent testified tha t he still suffered from iss ues arising out of s ubstance abuse so, at the very least, he would sti ll need counseling for that issu e once he was released.

Further, there was no reasonable likelihood that the condition s that led to the adjudication would be rectified within a reasonable time considering the chi ldren’s age. MCL 712A.19b(3)(c)( i ). The children were five years old at the time of the termina tion proceedings, and had been under the guardianship of their aunt for about 11⁄2 years. The trial court noted that this was approximately one-third of the children’s lives withou t contact with respondent. Further, the evidence showed that respondent would be unlikely to remedy his issues in a reasonable time. Even when respondent was released from jail d uring these proceedings, he showed no intent or ability to avoid substance abuse and to for m a meaningful bond with the children. Specifically, after hi s release, respondent almost i mmediately started abusing drugs again, testing positive for cocaine, opiates, and THC. He show ed no intent to develop a bond with the children, skipping all but one scheduled parenting-tim e session, and made no other effort to reach out to them by sending gifts, cards, or anythin g of the like. In summary, clear and convincing evidence supported termination of respondent’s paren tal rights under MCL 712A.19b(3)(c)( i ).

Because only one statutory ground must be established by clear and convincing evidence,

In re Ellis , 294 Mich App at 32, we need not address whether the trial court clearly erred in finding that MCL 712A.19b(3)(g) an d (j) were also established; nevertheless, we conclude that the trial court did not clearly err. In brief, respondent neve r provided proper care or custody for

the children and there was no reas onable expectation that he wo uld be able to within a reasonable time considering their ages. See MCL 712A.19b(3)(g). Responde nt provided no monetary support except for two or three child support payments shortly after their births and there was no evidence that he had any ability to provide full-time care. Th ere was no evidence that he had money, housing, or parenting skills. He did not even write to the children or buy gifts for their birthdays. And when respondent had the chance to be a father a fter being released from jail, he instead abused drugs and was retur ned to jail with in a few mont hs of being released.

Further, as the trial court held, there was a reasonable likel ihood, based on respondent’s conduct, that the children would be harmed if returned to him. See MCL 712A.19b(3)(j). The

record evidence included that r espondent allowed his other chil dren to remain in his home with a loaded weapon and drugs. Furthermore, respondent, upon being r eleased after that crime, showed no indication that he would change his ways. Instead, r espondent almost immediately began using drugs again, was terminated from his substance abus e program, and was eventually-3- arrested and jailed again for violating probation. Indeed, tes timony from respondent’s own sister revealed that she was concerned for the welfare of any children under respondent’s custody given his actions with respect to his other children.

Respondent argues that none of the statutory grounds were esta blished by clear and convincing evidence because the trial court relied solely upon the fact that he was incarcerated. For this argument, respondent r elies on our Supreme Court’s dec ision in In re Mason , 486 Mich 142; 782 NW2d 747 (2 010). In that case, our Supreme Court held that “[t]he state is not relieved of its duties to engage an absent parent merely because that pa rent is incarcerated.” Id . at 152. Respondent’s argument is without merit. In Mason , the respondent-father was only permitted to participate in two of the hearings via telephone from prison. Id . at 153. And there was a 16- month gap between the first hea ring and the second hearing. Id . at 155. The Mason Court reasoned that the respondent-fat her “missed the crucial, year-l ong review period during which the court was called upon to evaluate the parents’ efforts and decide whether reunification of the children with their parents could be achieved. Indeed, respond ent was practically excluded from almost every element of the review process[.]” Id . Furthermore, at the termination hearing, the DHHS caseworker admitted that he had never even spoken to the r espondent-father, but still

determined that termination would be best for the minor childre n. Id . at 150, 159. Given these facts, the Court determined that the termination of the respond ent-father’s parental rights was premature, because he had not been given the opportunity to par ticipate and be properly

evaluated. Id . at 159.

In this case, however, respondent fully participated in the pr oceedings. From the beginning of the proceedings, the trial court expressed concern regarding respondent’s incarceration. During the initia l adjudication proceeding, the trial court adjourned respondent’s portion because he was not in attendance from jail and had not yet had an attorney appointed. Only after respondent was able to participate by telephone and discuss the situation with his attorney was respondent permitted to consent to jurisdiction. Further, respondentwas present via telephone for every hearing that took place regarding the child ren. Additionally, the trial court entered a writ of habeas corpus so that respondent could appear in person for the termination proceedings. With regards to contact by DHHS with respondent, a DHHS caseworker testified that she sent monthly letters to respondent regarding what cour ses and classes he should engage in while in prison. Further, th e record reveals that DHHS case workers and respondent discussed the need for him to complete courses while in prison to exhibit his continued efforts to becoming a suitable parent. Indeed, at least once on the record, respon dent clearly stated that he understood what DHHS was recommending he complete. As can plai nly be seen from this factual scenario, respondent was not treated in the same manner as the respondent-father in In re

Mason ; therefore, respondent’s reliance on this case is misplaced.

Respondent also argues that it wa s not in the best interests o f the children to terminate his parental rights. Again, we disagree.

This Court reviews a trial court’s determination regarding the children’s best interests for

clear error. In re White , 303 Mich App at 713. A decision is clearly erroneous if, alt hough there is evidence to support it, we are left with a definite and firm conviction that a mistake has been

made. In re Mason , 486 Mich at 152 (cit ation omitted).-4- A trial court must order termin ation of parental rights if a s tatutory ground for termination is established by clear and convincing evidence and the court finds by a preponderance of the evidence th at termination is in the childr en’s best interests. In re Moss , 301 Mich App 76, 90; 836 NW 2d 182 (2013). At the best-interest sta ge, the focus is on the child, not the parent. Id . at 87. In making the best-int erests determination, the court may consider a number of different factors, such as the parent’s history, pare nting ability, and pa rticipation in a treatment program, the children’s ages and bond to the parent, as well as the length of time the

children were in care and their need for permanency, stability, and finality. See In re Olive/Metts

Minors , 297 Mich App 35, 41-42; 823 NW2d 144 (2012); In re VanDalen , 293 Mich App 120, 141-142; 809 NW2d 412 (2011). In addition, placement with a re lative weighs against termination under MCL 712A.19a(6)(a). Indeed, “the fact that t he children are in the care of a relative at the time of the termination hearing is an ‘explicit factor to consider in determining

whether termination was in the children’s best interests.’ ” In re Olive/Metts Minors , 297 Mich App at 43, quoting Mason , 486 Mich at 164.

In making its determination, th e trial court relied on the fac ts that respondent did not have a parental bond with the children, the children needed stability and structure in their lives, and respondent did not provide that with his incarceration, substan ce abuse, and the uncertainty associated with those problems. Those determinations were part icularly supported by respondent’s actions when he was released from jail. Rather th an engage with the children and form a bond with them, respondent relapsed into abusing drugs a nd avoiding interaction with the children. Further, respondent mad e no attempts to provide care or custody for the children during that time, nor did he do so before his incarceration, wh en he failed to provide financial support. The lack of bond between respondent and the children was also exhibited by evidence

that showed that the children d id not refer to respondent as th eir father. Rather, they considered their mother’s boyfriend to be afather figure, and respondent to be “Stewie.”

At the time of the hearing, the children had been placed with an aunt for 11⁄2 years. It was undisputed that they had formed a bond with her over that time period and had only seen respondent one time, in November of 2014. While the trial cour t recognized that the children were residing with a relative, it also relied on her testimony that continued gua rdianship would not be in the children’s best interests because they deserved achance for stability in their living situation. As such, despite the children’s guardianship with a relative weighing against termination pursuant to MCL 712A.19a(6)(a), the trial court pro perly determined that a continued guardianship would not be in the children’s best inte rests. Given these facts, the preponderance of the evidence established that the children wou ld be best served by terminating respondent’s parental rights. A s the trial court noted, they w ould be available for adoption, given that mother’s rights were already terminated, which was more li kely to lead to a healthy, stable situation. Testimony from a DHHS caseworker revealed that the children needed that stability,

and did not benefit from the uncerta inty of respondent’s presen ce in their life. For all of these-5- reasons, the trial court did not clearly err in determining tha t it was in the children’s best interests to terminate respondent ’s parental rights.

Affirmed.

/s/ Mark T. Boonstra /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly