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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED August 18, 2016

In re TRAVIS, Minors.

Nos. 330633 & 330634 Wayne Circuit Court
Family Division LC No. 14-516124-NA

Before: M URPHY , P.J., and S TEPHENS and B ORRELLO , JJ.

P ER C URIAM

. Respondents appeal as of right f rom the order of the family di vision of the circuit court terminating their parental right s to their three minor children . We affirm.

I. FACTS

Petitioner filed a petition for wardship over the youngest chi ld, D.T., because respondentmother had received no prenatal care, was living in an abandone d home that was boarded up and without utilities, and had made no provisions to care for D.T., who was born with severe medical conditions. Two months later, petitioner sought wardship over the older two children as well, because they appeared malnourished, and the basement of the fam ily home was filled with raw sewage and feces. Both respondents had a history of drug abuse . Over the 16 months that followed, regular permanency planning hearings took place, but finally a petition for termination was authorized.

At the termination hearing, fost er-care workers testified that respondents’ housing continued to be problematic. The worker also said that both pa rents had difficulties interacting with the children, and had missed half of their drug screens. Respondents also had a poor record of appearing for visits with the children and attending medical appointments for D.T. Further, neither respondent ever produced evidence of a legal source of income. The trial court concluded that respondent-father was in fact operating a house of prostitution, with respondentmother as one of the prostitutes.

II. REUNIFICATION SERVICES-2- Respondents argue that the trial court erred in concluding tha t petitioner had expended reasonable efforts to achieve r eunification. The essence of th is argument is that the petitioner failed to offer the specific services that were needed and fail ed to offer the services ordered for a sufficient period of time. In this case, neither respondent ad dresses the question of issue preservation, see MCR 7.212(C)(7). Neither respondent argues t hat they requested additional services or complained about the services that were offered. W e do note that the respondents did lodge complaints about being requi red to attend visitations in Ann Arbor; however, petitioner moved the visitation site back to Wayne County long before the termination. We therefore deem this issue unpreserved, thus subject to review only for plain e rror affecting substantial rights. See Kern v Blethen-Coluni , 240 Mich App 333, 336; 612 NW2d 838 (2000).

Where a court has taken temporary jurisdiction over a child, r easonable efforts must be made to reunite the child with the natural parents unless doing so would cause a substantial risk of harm to the child’s physical or mental well-being. Tallman v Milton , 192 Mich App 606, 614- 615; 482 NW2d 187 (1992), citing MCL 712A.19a(4). See also MCL 400.115b(2) (explaining that “the department shall assu re, if necessary, the provision of appropriate social services to the child, parent, guardian, custodia n, or person serving in loco p arentis, to reinforce and supplement the parental capabilities, so th at the behavior or situation ca using the problem is corrected or the child is otherwise protected”). Where reasonable efforts towar d reunification are required, but the petitioning agency has failed to allow the respondent a rea sonable opportunity to participate in services, the result is a “hol e” in the evidentiary record t hat renders termination of parental rights improper. In re Mason Minors , 486 Mich 142, 158-160; 782 NW2d 747 (2010).

In this case, respondents were offered abundant services, and on appeal respondents do not so much complain of a lack of services offered or address a ny particularized service that should have been offered, but ins tead argue that they were not given adequate time to participate in and benefit from the services being offered. The record rev eals that respondents were offered parental training, individual c ounseling, drug treatment servic es and supervised visitation with all of the minor children. How ever, respondents’ participation in these services was sporadic and ineffective. For example, a foster-care worker testified that respondents “were ordered to participate in parenting classes, a psychological evaluation, d rug screening and substance abuse counseling,” but that they “were discharged from individual cou nseling and drug abuse counseling for noncompliance because the providers couldn’t con tact them.” The foster-care worker further reported that “th ere were a lot of missed [drug] screens,” and also “at least one positive screen for mother and I believe two for father” indicating marijuana consumption. Respondents were out of contact wi th the petitioner for signifi cant periods of time during which they had no contact with any of the children. The worker descr ibed respondents’ compliance with their treatment plans in ge neral as “[s]potty at best,” el aborating that communication “was always a really big issue,” in that she sometimes had difficult y contacting respondents, including when she needed consent for medical treatment for D.T. The fos ter-care worker added, “sometimes when it seemed like they were beginning to make an e ffort and the other times they would sort of drop off the radar for periods of time or they wo uld comply with something for a little while and then stop,” and that this tendency infected th eir participation in parenting classes, over which they generated some “positive review” but then “bega n missing more classes.” Neither party offers record e vidence to the contrary.-3- We are aware that respondent-mother has offered information to this Court that petitioner failed to offer her services to facilitate her separation from respondent-father. Specifically, she asked this Court to consider information that respondent-father has been accused of human trafficking. She does not, how ever assert that she told either a counselor or a social worker that she was a victim, nor does she offer any expert or other eviden ce upon which this Court could find that she suffered a disabi lity, psychological or otherwise , that precluded her from making a revelation. In fact, the record reveals that she placed ads fo r sexual services in a publication when respondent-father was in c ustody. The Court is generally aware that respondent-mother may have been a victim of abuse who feared retribution from res pondent-father, even in his absence. However, there fails to be any evidence in the record from respondent-mother, such as an affidavit from a counselor o r a therapist, which would suppo rt such a finding by this Court. In any case, it is clear that the trial court, while aware that re spondent-mother engaged in prostitution, had no knowledge tha t such activities were coerce d. As to the services that were provided to her, respondent-moth er acknowledges that she continued to miss drug screens and visitations but asserts that at the time of termination she was doing better.

Respondent-father similarly asserts that he “was showing progr ess toward further compliance with his Treatment Plan” without offering details onthe degree of progress or record citations to prove it. He protests that it was unreasonable to ask respondents to visit the children in Ann Arbor for a time, but fails to explain why the transport ation assistance petitioner offered kept Ann Arbor out of reach. He co mplains that “the visits wer e scrutinized as t o what ‘supplies’ they brought,” but does not explain why such scrutiny is not a valid part of asse ssing parenting skills.

Both respondents suggest not tha t they had become fit parents, but only that they were progressing toward that goal. The implication is that they sho uld have been given more time. We are reminded that the children were in care for a year and a half. However, “the Legislature did not intend that children be l eft indefinitely in foster car e, but rather that parental rights be terminated if the conditions lead ing to the proceedings could n ot be rectified within a reasonable time.” In re Dahms Minors , 187 Mich App 644, 647; 468 NW2d 315 (1991). Respondents were thus entitled to reasonable effo rts at reunification, not endle ss efforts. Further, “[w]hile [the agency] has a responsibility to expend reasonable efforts to pr ovide services to secure reunification; there exists a commensurate responsibility on th e part of respondents to participate in the services that are offered.” In re Frey , 297 Mich App at 248. In this case, the trial court did not clearly err in concluding that respondents fell short o f fulfilling their “commensurate responsibility.”

For these reasons, respondents fail to show that the trial cou rt clearly erred in concluding that petitioner expended reasonabl e efforts to achieve reunific ation.

III. STATUTORY BASES FOR TERMINATION

Respondents argue that the trial court erred in concluding tha t termination of their parental rights was warrant ed under MCL 712A.19b(3)(c)( i ), (g), and (j), which provide as follows:-4- (3) The court may terminate a parent’s parental rights to a c hild if the court finds, by clear and convinc ing evidence, 1 or more of the following:

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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 adjudication continue to exis t and there is no reasonable likelihood that the conditions will be rectifi ed within a reasonable time considering the child’s age.

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(g) The parent, without regard to intent, fails to provide pr oper 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.

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(j) There is a reasonable likelihood, 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.

Respondent-mother reports that s he has separated from responde nt-father as a result of federal criminal proceedings, and insists that with respondent- father out of her life she is now poised to provide proper care and custody for her children. 1 However, this argument does nothing to challenge the trial co urt’s recognition that, at the time of decision, “mom and the other women in the home are prostitutes and dad is the manager and he ’s a participant some of the time.” She does not effectively ch allenge the trial court's fin ding that respondents have never offered the children a suitable home. Either of those findings supports the trial court’s conclusions that ( i ) and (g) were proven. The record also supports the trial cour t’s conclusion that the children would likely be subject to harm if returned t o respondent-mother’s care. Further, respondent-mother ci tes no authority for the propositi on that an appellate court may look to post-termination factual deve lopments to conclude that a tri al court clearly er red in concluding that statutory termination cri teria were satisfied. See In re Dahms , 187 Mich App at 647.

1 We have declined to examine the exhibit respondent-mother offe rs to show respon dent-father’s involvement with the federal criminal justice system, on the gr ound that in offering it respondent-mother is attempting to enlarge the record. See MCR 7.210(A) (“Appeals to the Court of Appeals are heard on t he original record.”).-5- Respondent-father in turn merely protests that he was “showing progress toward compliance” with his service plan, not that he had in fact show n the court that he had achieved what was required for reunification. But for his complaint tha t for a time visitation was in Ann Arbor, he does not criticize the services offered. As to the a rgument about the visitation, the record evidence is that he was offered transportation assistanc e in the form of money, train tickets and rides. Unemployed, he offers no reason as to why he did not avail himself of that assistance. His principal argum ent is that he should have been given more time beyond the 18 months that the children w ere in care. We disagree.

For these reasons, respondents fail to show that the trial cou rt erred in concluding that termination of their parental r ights was warranted under MCL 71 2A.19b(3)(c)( i ), (g), and (j).

IV. BEST INTERESTS

“If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child’s best interests , the court shall order termination of parental rights and order that a dditional efforts for reunification of the child with the parent not be made.” MCL 712A.19b(5). Respondents argue that the trial court erred in concluding that termination of their parental ri ghts was in the best interests of the children.

An appellate court reviews “for clear error . . . the court’s decision regarding the child’s best interest.” In re Trejo Minors , 462 Mich at 356-357. Although te rmination of parental rights requires proof of at least one of the statutory termination fac tors on clear and convincing evidence, “the preponderance of the evidence standard applies t o the best-interest determination.” In re Moss , 301 Mich App 76, 83; 836 NW2d 182 (2013).

In delivering its conclusions on best interests, the trial cou rt stated : . . . I believe all these children have special needs, but [D. T.] is by far the worse [sic]. Mom and dad are not remotely able to parent [D.T. ] but they aren’t able to handle the other two children either. They aren’t will ing to make the changes in their lifestyle. That would allow them to do that k ind of thing. What this moves me in the directi on of doing is terminating parental rights.

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. . . [T]hese children are at critical ages in terms of their intellectual development. Continuing to be in foster care is a bad thing. They . . . strongly need permanence, particularly [D.T.]. But [the other two child ren] do too. One of the children has been diagnosed as having some special needs , and the other one I think that will be diagnosed in time. . . . They need to get out of foster care. They need to be adopted.

. . . These children’s ages militate in favor of termination, giving up on trying to rehabilitate the family.-6- . . . [W]ith [D.T.] being in care 20 months, [and the others] being in care 18 months, that’s a long time for children like this. The stre ngth of their relationship with mom and da d has gone down a great deal. . . .

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. . . And for children with special needs we need to be even m ore careful regarding disruptions. If anything, that militates in favor of a termination and adoption not disturbing the c hildren’s surroundings.

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. . . [D.T.] is by himself, and a termination and adoption wil l split the children. The bond between [D.T.] and the others is far weaker that it was 18 months ago. But again, the children haven’t had that much deal ings together in all this time. I would point to this militating weakly against termination of parental rights.

. . . I’m going to find that termination is in each of the chi ldren’s best interest with regard to each of the parents. It’s especially t he case regarding [D.T.]. But it is present by well more than a preponderance of legally admissible evidence regarding the other two children.

Respondent-father states that the trial court failed to consid er the best interests of the children individually. See In re Olive/Metts Minors , 297 Mich App 35, 42; 823 NW2d 144 (2012). However, in delivering its findings and conclusions co ncerning the children’s best interests, the trial court t ook pains to recognize the needs of each child, and specially noted that it was not considering them collec tively, or merely projecting D.T .’s special needs over the older two children.

Both respondents assert generally that visits went well for al l involved, but fail to rebut indications that they did not consistently interact with the ch ildren appropriate ly, or that the oldest child explicitly expressed his wish not to have further visits with respondents. Respondent-mother also argues adoption plans as they were takin g shape would result in splitting up the children. The trial court did in fact recogni ze that eventuality as militating against termination, but only “weakly” so because “the children haven’t had that much dealings together in all this time.”

The court specifically found that residency with respondents w as not suitable for children, because they kept their houses in poor condition and ran prostitution operations from them. This finding is amply suppor ted by testimony from the fo ster-care workers and, as to the prostitution, is admitted by the respondent-mother. During the pendency of the case they reported at least five addresses. The ones that were inspected were in poor repair, one with feces in the basement and another with out electricity. Other address es were never offered for inspection or verification. Ne ither parent provided any source of legal income with which to procure suitable housing.-7- For these reasons, respondents fail to show that the trial cou rt clearly erred in concluding that termination of their parenta l rights was in the children’s best interests.

Affirmed.

/s/ William B. Murphy /s/ Cynthia Diane Stephens /s/ Mark T. Boonstra