If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

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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UNPUBLISHED

In re WALKER/HUGHES, Minors. January 26, 2023

No. 361561

Kalamazoo Circuit Court Family Division

LC No. 2019

- 000290

- NA

Before: Y ATES

, P .J., and J ANSEN and S ERVITTO , JJ.

P ER C URIAM

.

Respondent

- mother appeals as of right the trial court ’s order finding that terminat i on of her parental rights to the two minor children, LW and RH, was in the b est interest s of the children . On appeal, mother argues that termination of her parental rights was not in the children’s best interests

because a less

- restrictive means of ensuring the children’s safety , i.e., guardianship , w as available and appropriate. We affirm.

I. FACTUAL BACKGROUND

P etitioner, the Department of Health and Human Services

, requested the trial court to take jurisdiction over LW, RH, and their teenage brother, JW, 1 for failure to provide proper care and custody of the children, drug use, an unfit hom e environment, and failure to comply with services. The children were placed in foster care for a short period of time, but were allowed to remain in relative care for the balance of the proceedings. T he children thrived in care overall, although JW

expe rien ced increased emotional turmoil throughout the case.

Mother inconsistently attended her parenting visits

, but usually demonstrated appropriate parenting skills when she did attend

. Mother completed parenting classes, a substance

- abuse assessment, and a psychological evaluation. Further, mother and the children shared a strong bond. However, mother struggled severely with substance abuse throughout the case. M other adamantly

denied substance use , claiming at all times that positive drug screens were either falsified or not

1 JW is not participating in, or is not considered a party to, this appeal. Also , mother’s fourth child

, HW

, is not at issue in this appeal as the termination proceedings are still ongoing in that case.- 2

-

hers

, despite multiple caseworkers’ explanations to the contrary. M other also had a history of drug abuse dating back at least ten years, including two previous cases involving JW and Children’s

Protective Services. Moreover

, mother’s fourth child, HW, who was born a lmost 20 months into this case, tested positive at birth for the presence of drugs, including methamphetamine. Mother’s

substance

- abuse assessment revealed that she suffered from high

- severity drug use disorder.

T hroughout the case, m other missed the majority of her drug screens and tested positive

for methamphetamine on several occasions

. Mother also left a family drug

- court program and an inpatient rehabilitation program a short time after starting each program

. Mother was terminated

from numerous other services, including individual and group substance

- abuse counseling and a parenting

- coach program . Other issues included instability with housing and resources, mental and physical health struggles, and poor com munication and participation generally.

Although mother did not attend the final termination hearing, she requested through her attorney that her parental rights be released to the children’s grandmother. Petitioner agreed that a guardianship was proper for JW but opposed that option for LW and RH because of their younger ages and need for permanence. Moreover, p etitioner agreed that LW and RH should be permitted to maintain a relationship with mother going forward. But t he trial court found that termin ation of mother’s parental rights to LW and RH was warranted pursuant to MCL 712A.19b(3)(c)( i ), MCL 712A.19b(3)(c)( ii ), and MCL 712A.19b(3)(j). The trial court also found that termination and adoption w ere in their best interests in order to promote permanenc e and a life without uncertainty, even though it was not in JW’s best interest s because of his older age. The trial court further found that LW and RH would likely be adopted because their maternal grandmother was willing to adopt

them and could determine when it was safe for them to see mother. Mother now appeals.

II

. GUARDIANSHIP

On appeal, m other contends that the trial court’s decision to proceed with termination was

unconstitutional because a less

- restrictive means of ensuring the childre n’s safety and stability

— guardianship

— w as available as an option. Mother argues that

, pursuant to MCL 712A.19a(9)(c), 2 guardianship is a permanency option when termination is unnecessary or for children whose best interests are not served by their parents ’ rights being terminated

. M other’s argument misappl ies

the statutes and caselaw to the circumstances of this case. According to MCL 712A.19a(9)(c):

If the agency demonstrates under subsection (8) that initiating termination of parental rights to the child is clearly not in the child’s best interests, or the court does not order the agency to initiate termination of parental rights to the child under

2 Mother also cite s, as another option

, that the trial court could have chosen under MCL 700.5204, guardianship under the Estates and Protected Individuals Code (EPIC), MCL 700.5201 et seq

. , which does not govern the formation of a guardianship in lieu of termination of parental rights under the Juvenile Code, MCL 712A.1 et seq . However, mother does not provide any argument regarding how a probate guardianship under EPIC may be applicable to a termination proceeding under the Juvenile Code, nor did she specifically suggest that the trial court consider imposing a guardianship under EPIC. Therefore, this Court need not reverse for plain error on account of this

issue. See In re Sanborn , 337 Mich App 252, 267; 976 NW2d 44 (2021).- 3

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s ubsection (8), the court shall order 1 or more of the following alternative placement plans:

* * *

(c) Subject to subsection (11), if the court determines that it is in the child’s best interests, appoint a guardian for the child, which guardianship ma y continue until the child is emancipated.

G uardianship may only be considered when a child cannot be returned to a parent but termination is “clearly not in the child’s best interests.” In re TK , 306 Mich App 698, 703; 859 NW2d 208 (2014). Moreover

, und er MCL 722.873(c)

, a “child is eligible to receive guardianship assistance” only if “[r]eunification and placing the child for adoption are not appropriate permanency options.”

B ecause adoption was possible and appropriate for both LW and RH, the guardian ship option was properly excluded from consideration.

III. BEST

- INTEREST FACTORS

Mother next contends that t ermination of her parental rights was not in the best interests of

LW and RH because mother has a strong bond with the children

. Whether terminati on of parental rights “ is in the best interests of the child must be proved by a preponderance of the evidence.” In

re Moss , 301 Mich App 76, 90; 836 NW2d 182 (2013). The best

- interest determination focuses

on the child

, rather than t he parent. In re Schadler 315 Mich App 406, 411; 890 NW2d 676 (2016). Factors a court may consider in deciding whether termination is in a child’s best interests include : the child’s bond to the paren t; the parent’s parenting ability ; the child’s need for permanency,

stab ility

, and finality ; and the suitability of alternative homes. In re Olive/Metts Minors , 297 Mich App 35, 41

- 42 ; 823 NW2d 144 (2012). Other factors include “ the parent’s compliance with [ the ]

case service plan, the parent’s visitation history with the ch ild, the children’s well

- being while in care, and the possibility of adoption.” In re White , 303 Mich App 701, 714 ; 846 NW2d 61 (2014).

At the termination hearing, the trial court emphasized that LW and RH needed stability and

permanency , as opposed to the possibility of suffering because of uncertainty about their mother as they gr o w older. Mother’s ongoing substance abuse and failure to participate in her case

- service plan presented a continuing danger to LW and RH. The trial court found that their grandmother’s home was suitable, their grandmother did well meeting the children’s needs, and she was willing to adopt them. The trial court also noted that the children’s young ages made chances favorable that they could be adopted. Although the trial c ourt made clear that LW and RH should not remain in a home where mother could freely come and go as she wanted, the court encouraged adoption by their grandmother, who would have the discretion to decide when to prevent mother from seeing

LW and RH and when to allow visits because it was safe for the children.

The trial court further indicated that it did not take its task lightly, especially in light of the
children’s bond and their ongoing relationship with mother. Thus, we are not left with a defini te
and firm conviction that the trial court erred when it found, o n balance, that the relevant factors weighed in favor of termination. In re White , 303 Mich App at 709

- 710. Therefore, the trial court did not clearly err when it found

, by a preponderance of the evidence

, that termination was in the

best interests of LW and RH.- 4

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Affirmed.

/s/ Christopher P. Yates

/s/ Kathleen Jansen

/s/ Deborah A. Servitto