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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re JACKSON/SCOTT/LETT, M inors. April 28, 2015

No. 322881 Wayne Circuit Court Family Division LC No. 12-510570-NA

Before: B ECKERING , P.J., and C AVANAGH and S AAD , JJ.

P ER C URIAM

. Respondent appeals as of right from the trial court’s order te rminating her parental rights to her children, JJ, DS, JFJ, and HL, pursuant to MCL 712A.19b( 3)(b)( i ) (physical injury), (c)( i ) (conditions that led to the adjudication continue to exist), (g ) (failure to provide proper care or custody), and (j) (reasonable lik elihood child will be harmed i f returned to the parent’s home). We affirm.

The initial petition alleged, a mong other things, that one of the children was birthed into a toilet and that respondent left the baby in the toilet until EM S arrived, causing the child to suffer from hypothermia. Respondent also admitted to using marijuana while pregnant with the same child, and that the child tested positive for marijuana at birt h. Respondent did not have suitable housing for the children, and they were not being provided enou gh food to eat. The petition alleged that respondent’s habitual marijuana use prevented her from providing proper care and custody for the children.

A treatment plan was developed, with various services provided to assist respondent in finding suitable housing and in dealing with her substance abus e issues. Parenting classes and drug screening were set up, and services were to be provided to address respondent’s emotional instability and income problems. Initially, respondent was in partial compliance with the plan and supervised parenting visits went well. How ever, respondentdid not consistently provide drug screens and the screens she did provide almost always test ed positive for marijuana. The court ordered that a new substanc e abuse therapist be assigned because of the positive screens, but respondent failed thereafter to participate. Although peti tioner made referrals regarding housing, respondent failed to undert ake to find housing that co uld accommodate both herself and her children. In light of res pondent’s failure to substantiall y comply with her treatment plan, the court ordered that a petition to t erminate her parental rights be filed.

As of the hearing on the petition, respondent had not secured suitable housing for her children and she continued to test positive for marijuana. The children were doing well in their-2- placements and the foster parents all indicated a desire to ado pt the children. The court concluded that the statutory grounds for termination had been m et and that termination was in the best interests of the children.

Respondent first challenges the court’s findings on the statut ory grounds. We review for clear error “the court’s decisi on that a ground for termination has been proven by clear and convincing evidence . . . .” In re Trejo Minors , 462 Mich 341, 356-357; 612 NW2d 407 (2000). A finding is clearly erroneous if the reviewing court is left w ith a definite and firm conviction that a mistake has been made. In re Miller , 433 Mich 331, 337; 445 NW2d 161 (1989). A reviewing court must defer to the special ability of the trial court to judge the credibility of witnesses. Id

. To terminate parental rights, the petitioner bears the burden of showing that the allegations establish a statutory basis for termination by clea r and convincing evidence. In re Trejo Minors , 462 Mich at 351, 355. The court is required to make findings of fact, state conclusions of law, and specify the statutory basis for the ord er. Id . at 355. The relevant statutory grounds for this case are the following:

(3) The court may terminate a parent’s parental rights to a ch ild if the court finds, by clear and convinc ing evidence, 1 or more of the following:

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(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circu mstances:

( i ) The parent’s act caused the physical injury or physical or se xual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent’s home.

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(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the c ourt, by clear and convincing evi dence, finds either of the following:

( i ) The conditions that led to the a djudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.

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(g) The parent, without regard to intent, fails to provide pro per care or custody for the child and there is no reasonable expectation th at the parent will be able to provide proper care and custody within a reasonable tim e considering the child’s age.-3- * * *

(j) There is a reasonable lik elihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent.

The original petition for removal alleged that respondent lack ed suitable housing, could not properly care for the childre n, and habitually used marijua na. Respondent admitted to these allegations. Although petitioner made referrals regarding hous ing, respondent continued to live with her mother throughout the p roceedings. Those living arran gements could not accommodate respondent’s children. There is no evidence in the record to s uggest that respondent sought to secure suitable housing that w ould accommodate herself and her children.

Most importantly, respondent failed to make any progress regar ding her habitual marijuana use, which the petition cited as an underlying factor in her failure to care for her children. Although respondent made some initial progress with her substance abuse issues, she ceased complying with drug screens by the September 2013 review hearing, and when she did screen, the tests were almost always positive for marijuana. R espondent attended some drug counseling, but her pattern of positive screens and failure to attend all screenings clearly shows that she failed to benefit from the services provided. Respond ent also failed to follow up on future drug counseling referrals.

Respondent’s continuing marijuana use and failure to secure su itable housing clearly demonstrated that the conditions that led to adjudication conti nued to exist and that respondent was unable to provide proper care and custody of her children. Therefore, the evidence before the trial court established gr ounds for termination under MCL 7 12A.19b(3)(c)( i ) and (g).

Under MCL 712A.19b(3)(j), it is proper for the court to consid er the “risk of emotional harm.” In re Hudson , 294 Mich App 261, 268; 817 NW2d 115 (2011). The record estab lishes that the children suffered emoti onal harm in that they fought o ver food, felt stealing or hiding food was the only way to secure n ourishment, and that responden t would yell at and demean them. As respondent’s drug use created the conditions in which she could not provide proper care and she failed to make any progress throughout the duratio n of the case, a sound evidentiary basis existed for the court to c onclude that the children would suffer emotional harm if returned to the mother’s home.

Because only one statutory ground need be proven, In re Olive/Metts Minors , 297 Mich App 35, 40; 823 NW2d 144 (2012), 1 the statutory grounds for ter mination were established. 2

1 Because only one ground for termination need be established, w e do not consider whether termination was also wa rranted under MCL 712A.19b(3)(b)( i ).

2 Although respondent couches her argument here in the language of due process, Michigan law fully comports with these requirements and respondent has not s hown that either her federal or state rights were violated. In re B & J , 279 Mich App 12, 23; 756 NW2d 234 (2008).-4- Respondent also argues that peti tioner failed to provide adequ ate services. Generally, and before a court enters a dispos itional order, petitioner is “required to make reasonable efforts to rectify the conditions that caused the child’s removal by ad opting a service plan.” In re Fried
, 266 Mich App 535, 542; 702 NW2d 192 (2005), citing MCL 712A.18f (1), (2), (4). Such a plan was put in place in this case. The root cause of the children’ s removal was respondent’s drug use. The petition cited drug use as a factor in respondent’s f ailure to provide proper care and custody for the children. Petitioner made reasonable efforts t o address this issue by providing respondent with substance abuse counseling. Indeed, when the d rug counselor assigned appeared to be having no impact because respondent continued to test positive for marijuana, the court ordered appointment of a nother counselor. Although two a dditional referrals were made for counseling, respondent claimed that the second counselor wa s too old, so she refused to cooperate, and she failed to follow through and make contact wi th the third referral. Petitioner also discussed the possibility o f inpatient substance abuse the rapy with respondent, but she declined. It was respondent and not petitioner who failed to a ddress the drug issue. Respondent has not shown the services were inadequate or unreasonable in l ight of her failure to avail herself of the additional counseling opportunities. See In re Frey , 297 Mich App 242, 248; 824 NW2d 569 (2012) (explaining that while petitioner has a responsibili ty to provide adequate services, “there exists a commensurate responsibility on the part of” the respondent to comply with and benefit from those services).

Respondent also argues that insufficient services were provide d to assist her in securing suitable housing. However, petitioner presented testimony that it had provided respondent with housing referrals. Further, there was testimony that petitione r assisted respondent with Section 8 housing. The record reflects that it was respondent’s choice t o continue to live with her mother, where there was not enough room for her children, rather than p rocure her own appropriate accommodations. The trial court did not clearly err in finding that reasonable efforts and adequate services were ma de to reunify the family.

Finally, respondent argues that the termination was not in the best interests of the children. A court’s decision that termination is in the child’ s best interests is reviewed for clear

error. In re Olive/Metts Minors , 297 Mich App at 40. “If the court finds that there are groun ds for termination of parental rights and that termination of pare ntal rights is in the child’s best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.” MCL 7 12A.19b(5). See also MCR 3.977(E)(4). Several fac tors may be considered by the court to determine the best interests of the child, including the child’s bond to the parent, the parent’s p arenting ability, the advantages of a foster home over the parent’s home, and the child’s need for pe rmanency, stability, and finality. In re Olive/Metts Minors , 297 Mich App at 41-42.

The court grounded its best-interest determination on the perm anency needs of the children. The evidence supported this conclusion as respondent made no significant progress addressing her drug abuse issues and unsuitable housing, the tw o biggest barriers to reunification. Indeed, respondent did not progress to unsuperv ised visits in over a year of services. The children were young and beginning to question th e transitory nature of their family life. Although all the children were doing well in foster home s, their situation revealed a need for permanency and the respondent’s complete failure to move fo rward and show progress with her drug and housing issues provided a sufficient basis that sh e would not be able to address-5- these needs in a reasonable amount of time. The children neede d permanence, which their foster parents were willing to provide, and respondent could not. See In re Olive/Metts Minors , 297 Mich App at 41-42.

Affirmed.

/s/ Jane M. Beckering /s/ Mark J. Cavanagh /s/ Henry William Saad