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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re McKINVEN, Minors. December 3, 2015

Nos. 327043; 327044 Van Buren Circuit Court Family Division LC No. 13-017808-NA

Before: M ARKEY , P.J., and O WENS and R ONAYNE K RAUSE , JJ.

P ER C URIAM

. Respondent father and respondent mother appeal as of right the March 10, 2015 order terminating their parental rights to the minor children, TM and EM. The trial court terminated respondents’ parental rights pur suant to MCL 712A.19b (3)(g), “ [t]he parent, without regard to intent, fails to provide proper care or custody for the child a nd 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,” and (j), “[t]here is a reasonable likelihood, based on the conduct or capacity of the child’s parent, th at the child will be harmed i f he or she is returned to the home of the parent.” We affirm.

I. FACTUAL BACKGROUND

The Department of Human Services filed a petition alleging abu se and neglect of the minor children, TM and EM. A preliminary order was entered put ting the minor children in the temporary custody of the court. The minor children were placed into foster care with their paternal grandmother and remained in that placement throughout the duration of this case. A second petition was subsequently filed to terminate the parenta l rights of the respondents. At the conclusion of the termination hearing, the court delivered its opinion from the bench terminating respondents’ parent al rights.

The first petition alleged that the children had been left wit h their grandmother on several occasions and at least once with bed bugs and strep throat. At the termination hearing, it was stated that the bed bugs came from the Kalamazoo Gospel Mission , where the children and respondent mother were staying because respondent mother was ho meless. During this time,-2- respondent father was serving ei ghteen months’ to fifteen years ’ imprisonment for second-degree home invasion. 1

Throughout the duration of this case, respondent mother had un stable housing, sporadic attendance at supervised visits, and multiple positive drug tes ts. It was also stated at the termination hearing that respondent mother tested positive for cocaine after the birth of both minor children. It is unclear whether the children had cocaine in their system when they were born, but the trial court indicated that it was likely. On the date the termination hearing began, respondent mother had not compl eted a parenting class but did h ave a job.

Respondent father was incarcerated during the majority of this case. Upon release from prison, respondent father lived at a motel. At the time of the termination hearing, respondent father did not have a job or a ny prospective long-term housing.

Respondent father did meet with the minor children on multiple occasions, one of which was observed by the minor children’s counselor. The counselor testified that respondent father lacked discipline throughout the entire meeting. She testified that respondent father threatened the children with “time-out” on multiple occasions, however did not follow through. There was also an incident in which TM threw a matchbox car at respondent father, which prompted the counselor to intervene and tak e control of the situation.

The counselor also testified that she observed overt displays of anxiety and behavioral problems by the minor children following visits with the respon dents. In particular, TM was terrified that respondent mother was going to steal him and had nightmares involving both respondents. Further, EM displaye d “bratty” behavior following visits with respondents.

The counselor further testified t hat TM reported incidents of sexual abuse. TM underwent a sexual abuse assessment. The report following the assessment discussed incidents of sexual assault from an unidentified third party. It further discussed an incident in which TM, and possibly EM, were placed into a trash bag and then into a d umpster. The trial court concluded that they thought some sort of sexual abuse had occur red and that some version of the trash bag incident also occurred. However, the trial court did not attribute sexual abuse to respondent father or respondent mother. The counselor conclude d that the minor children were suffering from post-trauma tic stress disorder.

The trial court concluded thatboth respondents were unfit to provide the minor children with the needed stability and care. The court explained that r espondent mother did not have an adequate place to live, did not complete a drug treatment progr am, and did not complete parenting classes. Respondent fat her had been unable to find ajob, had an extensive criminal

1 Respondent father has a lengthy criminal record. Of note are his convictions for domestic violence; disturbing the peace, which was a result of a domesti c violence incident; retail fraud; malicious destruction of property; and aggravated assault, whic h was reduced from the original charge of assault with a dangerous weapon. Father also has two personal protection orders against him.-3- history, and was living at a motel. The court also explained t hat respondent father had not benefitted from the parenting classes offered to him, as shown by the difficulties in the observed visitation with the minor children. The court found that respo ndents’ situation would not change in the next twelve months, and t hat the prosecutor and DHS had met their burden of proof.

II. TERMINATION OF RESPONDENT MOTHER’S PARENTAL RIGHTS

Respondent mother first argues that the trial court clearly er red in finding that the statutory grounds for termination were established by clear and convincing evidence. We disagree. This court reviews fo r clear error a trial court’s d ecision that a ground for termination was proven by clear and convinc ing evidence. MCR 3.977(K). “A finding is clearly erroneous if the reviewing court is left with a definite and firm convict ion that a mistake has been made. A reviewing court must defer to the special ability of the trial court to judge the credibility of witnesses.” In re LaFrance Minors , 306 Mich App 713, 723; 858 NW2d 143 (2014) [internal citations omitted]. “Clear error signifies a decision that str ikes [this Court] as more than just maybe or probably wrong

. ” In re Williams , 286 Mich App 253, 271; 779 NW2d 286 (2009). “Termination of parental rights is appropriate when the DHS pro ves one or more grounds for termination by clear and convincing evidence. It is only neces sary for the DHS to establish by clear and convincing evidence the existence of one statutory gr ound to support the order for termination of parental rights.” In re Frey , 297 Mich App 242, 244; 824 NW2d 569 (2012) (citations omitted).

The first ground for the termination at issue was MCL 712A.19b (3)(g), which provides for termination when “[t]he parent, without regard to intent, f ails to provide proper 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 time considering th e child’s age.” In In re White

, 303 Mich App 701; 846 NW2d 61 (2014), this court upheld a termi nation of the parental rights of the respondent under this prov ision when the evidence showed that the parent failed to participate in and benefit from a service plan. The court reas oned that “[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.” Id . at 710.

In this case, respondent mother substantially failed to comply with the stipulations in the service plan following the original disposition hearing. Respo ndent mother did eventually abstain from using drugs, starting in October of 2014, and she made some of the scheduled visitations with the children; however, she missed approximatel y half of them. Furthermore, as of the hearing, respondent mother had yet to complete a parenti ng class, find stable housing, and participate in her own counseling. These failures indicated th at respondent mother will be unable to provide the proper care and custody for the minor chi ldren within a reasonable time.

Respondent mother cites the case Matter of Hulbert , 186 Mich App 600; 465 NW2d 36, (1990), and indicates that it hold s that speculative opinions d o not meet the required clear and convincing evidence standard. However, this reliance is mispla ced. Hulbert has very different facts from this case. In Hulbert , the only evidence of neglect was a failure to observe a child ’s apnea monitor and administer a proper dosage of medicine. Id . at 601. The trial court took this evidence and combined it with the potential harm that the respo ndents might inflict on the children because of the respondent’s alleged mental disorders. Id . at 602. The court then stated,-4- “[t]his record contains merely the speculative opinions of the psychologists regarding what might happen in the future. In short, given the minimal evidence of past neglect , we do not feel that the fact that respondents’ mental conditions ‘might,’ ‘could,’ or a re ‘likely to’ result in neglect or abuse is clear and convincing evidence sufficient to warrant te rmination.” Id . at 605 [emphasis added].

This case, in contrast, has clear instances of neglect. Respo ndent mother was homeless and shifting between temporary residences. The minor children were likely born with cocaine in their system. There were reports of the minor children being s tuffed into a trash bag. There were allegations of sexual abuse with at least some evidentiary support. There were allegations that the children were not fed properly and suffered from bed b ugs and strep throat, and then left with their grandmother. In totality, there is clear evidence o f potential neglect. To the extent the trial court’s conclusion was based on its evaluation of the cre dibility of the witnesses before it, we must defer to the trial court. LaFrance Minors , 306 Mich App at 723.

Respondent mother further argues that the trial court’s emphas is on events that occurred as far back as 2013 is misplaced and did not establish clear an d convincing evidence. Specifically, respondent mother st ates that she cured her housi ng instability. However, at the time of the hearing, respondent mot her still had not secured st able housing. 2 Incongruously, respondent mother contends that she cured her housing instabili ty, but then contends, in the same paragraph of her appellant brief, that she should be afforded m ore time to establish suitable housing. One cannot both have a p roblem cured and need more ti me to cure that same problem.

Furthermore, the use of past events to predict future events i s normal. MCL 712A.19b(3)(g) requires proof that a parent has not provided pr oper care and custody and that they will not be able to do so within a reasonable time. Impli cit in this statute is the idea that past events may show that the parents will be unable to provide the proper care in the future. In In re White , our Court held that failure to participate in a service plan showed that the parent will be unable to provide proper care and custody. In re White , 303 Mich App at710. In In re Trejo
, 462 Mich 341, 362; 612 NW2d 407 (2000), the Supreme Court held that “the evidence of respondent’s inability to obtain and maintain suitable housing supports the court’s conclusion that respondent, without regard t o her intent, had failed to pr ovide proper care or custody of her children.” In In re BZ , 264 Mich App 286, 300; 690 NW2d 505 (2004), this Court upheld termination of the respondent’s parental rights even though “re spondent maintained employment and ultimately separated from her abusive boyfriend.” Id . at 300. Our Court stated that “she only minimally complied with the more important aspects of the family plan, including visitation with the children.” Id . Therefore, it is clear that trial courts can, and must, relyupon past events to predict the future. The precedent upon which appellant reli es is not proper in this case and is more suited for a case in which little evidence of past neglect can be offered, or possibly where a past event is extremely remote.

2 At the hearing, respondent mother stated that she was very clo se to obtaining an apartment. However, the minor children’s ca se worker stated that responden t mother had stated this before and not obtained it.-5- Respondent mother also contends that she has partially complie d with the plan and should be afforded more time to fully comply. Respondent mothe r cites In Re Newman , 189 Mich App 61; 472 NW2d 33 (1991), in support of this idea. In Newman , the parents’ rights were terminated by the trial court because of their failure to maint ain an adequate home and to comply with conditions set forth in the prior parental termination hearing. Id. at 63-64. This Court reversed the decision because the parents had not been given th e opportunity to rectify the problem. Id. at 67-68. This Court discussed the parents’ lack of education , hampered intellectual capacity, and inability to maintain hygiene in the home. Id . at 70. This Court concluded that proper education of how to maintain the home wou ld allow the parents to correct their deficiency as parents. Id . at 70.

Again, this case is much diffe rent. Here, respondent mother h ad since September of 2013 to correct her deficiencies as a parent. However, until Octobe r of 2014, respondent mother remained unchanged. She routinely skipped drug tests, missed v isits with the minor children, and lived from place to place. It is true that respondent moth er has improved her actions recently, but the deficiency the court relied upon to terminate her rights was much different than those in Newman . Respondent mother chose to not show up for visits with her c hildren, to continue to use drugs, to steal needles, and not obtain stable housing. Therefore, this case is not reconcilable with the facts of Newman

. Furthermore, the statutory ground s for termination exist “when the conditions that brought the children into foster care continue to exist despite time to make changes and the opportunity to take advantage of a variety of services.” White , 303 Mich App at 710 [internal citation and quotations omitted]. In this case, respondent mot her is still without stable housing and has yet to complete parenti ng classes and substance abuse c ounseling. Even though she has rectified some of her deficiencies, significant ones still rema in that were present when the children came into foster care. T herefore, termination in this case is not premature.

In conclusion, the fact that respondent mother has a job and p otential housing is not enough to establish clear error in the trial court. Respondent mother only minimally complied with the case service plan and ha s yet to firmly establish suit able housing for the minor children. Therefore, the court did not clearly err when terminating respo ndent mother’s rights pursuant to MCL 712A.19b(3)(g).

The trial court also terminated respondent mother’s parental r ights pursuant to MCL 712A.19b(3)(j), finding that there was a reasonable likelihood that the children would be harmed if returned to respondent mother’s care. Because at least one ground exists for termination, this Court need not consider or decide this additional ground on whi ch the trial court based its termination . In re HRC , 286 Mich App 444,461; 781 NW2d 105 (2009). However, we will address this issue for sake of completeness.

Harm includes both physical harm and emotional harm. In re Hudson , 294 Mich App 261, 268; 817 NW2d 115 (2011). TM has been seeing a counselor for therapy since March 18, 2014. During that time, TM expressed deep concerns about being stolen by respondent mother, and that he wished to remain in the care of his grandmother. F urther, EM has shown increased agitation, or as her counselor pu t it, she has become “bratty.” The children’s counselor and care worker both stated that the children could potentially face men tal harm if returned to respondent-6- mother. This was evidenced by nightmares TM was having in whic h he was stolen by respondent mother and killed. T he record tends to indicate tha t the minor children are facing some mental injury and likely would be subject to more if returned to respondents. Regarding physical harm, respondent mother had yet to secure permanent ho using. When the children were homeless in the past, they cont racted bed bugs and strep throat , strongly suggest ing a likelihood of further physical harm if retur ned to a homeless situation wi th respondent mother. Therefore, the court did not clearly err w hen finding clear and convincing evidence under MCL 712A.19b(3)(j).

“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 term inate parental rights

. ” In re Olive/Metts Minors , 297 Mich App 35, 40; 823 NW2d 144 (2012). “In deciding wheth er termination is in the child’s best interests, the court may con sider 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.” Id . at 41-42 (quotation marks and citations omitted). “The trial court may also consider a parent’s histor y of domestic violence, the parent’s compliance with his or her case service plan, the parent’s visi tation history with the child, the children’s well-being while in care, and the possibility of ado ption.” White , 303 Mich App at 714.

The trial court did not clearly err in finding that terminatio n of respondent mother’s parental rights was in the best interest of the minor children. Though most of the reports and testimony centered on TM’s actions, both children displayed anx iety during and after meetings with respondent mother. Further, TM explicitly stated that he wished to remain with his grandmother, and he was afraid respondent mother was going to s teal him. These thoughts all tend to indicate that TM and respondent mother’s bond was not v ery close. Further, respondent mother’s parenting ability does not appear to have improved sin ce the start of this case. She has not completed any parenting classes and neglected to take respo nsibility for her actions, and the trial court would not have been out of line in concluding that her recent abstinence from drug use was insufficient to show a meaningful change. Respondent mothe r also did not secure stable housing, and the trial court woul d not have been unreasonable t o be dubious of her promise of stability and permanency. Respondent mother has not establishe d that she is unlikely to revert to her old ways and once again endanger the minor children. There fore, the court did not err when it found that it was in the best interest of the minor children to terminate the parental rights of respondent mother.

III. RESPONDENTS’ CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL A ND RESPONDENT FATHER’S CLAIM OF CL EAR ERROR ARE ABANDONED.

This Court considers the rema ining issues to be abandoned, and thus declines to address them. “An appellant’s failure to properly address the merits o f his assertion of error constitutes abandonment of the issue.” People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004). In regard to the ineffective assi stance of counsel claims, respond ents merely state their position without any analysis describing how effective counsel would hav e changed the outcome.-7- Regarding respondent father’s asse rtion of clear error in termi nating his parental rights, he merely raises the issue in the statement of issues presented, b ut fails entirely to address it within the body of his appellant brief. The refore, this court conside rs the remaining issues abandoned. 3

Affirmed.

/s/ Jane E. Markey /s/ Donald S. Owens /s/ Amy Ronayne Krause

3 Had this court addressed the se issues, they would not have aff ected the outcome of this case.