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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re BARSCEWSKI/BARSCEWSKI-MAYS,

Minors. September 8, 2015

No. 325409

Kent Circuit Court Family Division LC No. 12-052800-NA; 12-052801-NA;

12-052802-NA

Before: B OONSTRA , P.J., and M URPHY and M ARKEY , JJ.

P ER C URIAM

.

Respondent appeals by right the trial court’s order terminatin g her parental rights to her three minor children, BB, IB, and DB, under MCL 712A.19b(3)(c)( i ) (conditions that led to the adjudication continue to exist), (c)( ii ) (other conditions to cause the child to come within the court’s jurisdiction continue to exist), (g) (failure to provid e proper care and custody), and (j) (children will be harmed if re turned to parent). We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On September 7, 2012, petitioner petitioned the trial court to take jurisdiction over respondent’s children, remove them from her home, and terminate her and the children’s father’s parental rights. 1 The basis of the petition was that the youngest child, DB, wa s admitted to the hospital with multiple rib fractures and respondent failed to p rovide an explanation for the fractures. DB was 13 days old at the time. The children were initially placed in foster care; the oldest child, BB, was later placed with a maternal uncle but wa s returned to foster care after his parents had unauthorized contact with him. Respondent entered into a treatment plan with petitioner that identified her ba rriers to reunification or nee ds as emotional stability, substance abuse, and parenting skills. Respondent was adjudicated in Oct ober 2012 and the trial court took jurisdiction over the children. A t the dispositional hearing, it was revealed that the children’s

father had convictions for assault and domestic violence and th at respondent had been arrested three times for domestic violence against the father. At least one domestic violence incident had

1 The children’s father voluntar ily released his parental rights to the children on September 23, 2014 and is not a party to this appeal.-2- resulted in BB being accidentally hit by a cellular phone, alth ough the record does not indicate who threw the phone. Respondent had participated in a psycholo gical evaluation and was diagnosed with major depressive disorder. The caseworker also testified that BB had been diagnosed with cognitive impairments and impaired motor skills. After the initial dispositional hearing, the trial court ordered that reasonable efforts be mad e to reunify respondent and father

with the minor children.

Respondent initially actively part icipated in many services pr ovided by petitioner, including parenting classes, ind ividual counseling, and anger m anagement, and tested negative for substances apart from her prescription medicines. Responde nt interacted well with the children during parenting times . Respondent continued to live with the children’s father. Respondent and the children’s father denied responsibility for DB’s injuries. Respondent treatment plan was updated to include among her issues her dome stic relationship with the children’s father. In January 2013, the children’s father was arrested for a domestic incident where he threw something at respondent; he was jailed for two w eeks but the charges were eventually dropped.

At a permanency planning hearing in July 2013, respondent’s ca seworker reported that respondent was in the process of divorcing the children’s fathe r and that she was actively engaged in domestic violence treatment. BB was struggling with violent behaviors at school but was doing well in his foster placement. DB and IB were doing w ell in their placements.

In October 2013, BB was released to respondent’s home. In Jan uary 2014, the caseworker reported that DB was doing well in his foster care a nd extended visits with respondent. The caseworker reported that IB had disclosed that she had witnessed many

instances of domestic violence between respondent and father inthe past, and was participating in counseling. IB had indicated that she was afraid of BB. BB had been prescribed medication that improved his behaviors and was attending counseling; his s chool behavior was improving. At that time, respondent told the caseworker that she was not l iving with the children’s father

and had minimal contact with him . However, the caseworker cond ucted an unannounced visit of respondent’s home in November 2013, and found BB home alone wit h his father. Respondent told her that she could not find anyone else to watch BB while she attended a counseling session and that her neighbor, who normally watched him, had a family e mergency. The neighbor confirmed that she had been at the hospital for most of the day but denied that respondent had asked her to babysit that day. At some point, IB disclosed to the caseworker that respondent had hit her, but that allegation had not been investigated at the t ime of the hearing.

By April 2014, BB was still doing well in respondent’s home an d his behaviors were improving. IB had made two allegations that respondent had hit her during parenting time at her home; however one of the allegations had not been substantiated and investigation into the other allegation was ongoing. IB told th e caseworker that she did no t feel safe during her parenting times in respondent’s home because BB would fight with responde nt. Additionally, respondent had resubmitted divorce papers aft er she and the children’s fat her did not follow through with the original divorce filing. DB and IB remained placed in foster c are with parenting time visits at respondent’s home.-3- On May 1, 2014, IB and DB were returned to respondent’s home. On May 23, 2014, the

children were removed from the h ome after Amanda Leino, an inve stigator with petitioner, found bruising on DB’s face, back, stomach, and side. All thre e children were placed in foster care. At a dispositional revi ew hearing in June 2014, Leino re ported that CPS had received a report that respondent and her ch ildren had been at a Family Do llar store, that an employee of the store had heard a “loud slapping noise,” and that the employee had subsequently seen bruises forming on DB’s face. Respondent told Leino that IB had caused DB’s injuries. IB told the investigator that, on one occasion, she had hit DB with a board that had a tack in it, and that, on another occasion, she had hit him in the face with a hose when DB was trying to grab it away from her; she also reported that BB had kicked DB. A doctor ex amined DB and concluded that his injuries were not self-in flicted. Leino could not determin e who had caused DB’s injuries.

The caseworker testified that after the minor children were re turned to foster care after being removed from respondent’s home a second time, IB and DB w ere more aggressive and DB appeared to be a “little bit sk ittish” when he got in trouble a nd would flinch when his foster parents would come toward him. I B told her foster parents that respondent and BB got into “crazy” fights and that respondent would hit and bite when she got upset. The caseworker reported that respondent told her that IB kicked DB in the back , but that respondent told the investigator that BB kicked DB in the back. Emlie Goldner, pro gram manager of Spectrum Community Services’ children’s de partment, testified that she p rovided services for BB from the end of October 2013 and was in respondent’s home with him three days a week for approximately two hours. She had no concerns regarding respond ent’s level of supervision or discipline and did not see respondent ever strike the children.

At a later dispositional review hearing in June 2014, Leino st ated her conclusion that there was a preponderance of the evidence to substantiate physi cal neglect, failure to protect, and improper supervision on respondent’s part, but not physical abu se, regarding the Family Dollar

incident. The caseworker recommended that BB alone be returned to respondent’s home because he had made substantial improvement during the time he spent in respondent’s home from September 2013 to May 2014. BB was released to respondent ’s home on July 3, 2014; IB and DB remained in foster care. However, that very same day pe titioner again requested that the

trial court remove BB after an e mployee of petitioner visited r espondent’s home and found the children’s father, as well as marijuana, in the home. BB discl osed that his father was living in the home and that BB was experiencing upset stomachs and incont inence because of his fear of

his father. The trial court ordered BB removed from the home. At the dispositional review hearing concerning BB’s removal, the caseworker testified that respondent’s treatment plan required that respondent not allow the children’s father to be around the children because he had not completed any steps to address his issue with domestic viol ence. The caseworker reported that she found several pieces of the children’s father’s clothi ng in BB’s room, and that when she spoke with BB regarding his stomach problems, BB initially told her that “he couldn’t tell [the caseworker] or he wouldn’t be able to see [respondent] anymore. ” Respondent and the children’s father had denied that he was living there or that t here was marijuana in the home, although the father admitted to smoking marijuana outside the h ome when he came over to get some clothes and a motorcycle.

The caseworker further testified that approximately 1-1/2 months before the hearing, IB said that “Daddy is going to live in the trailer with us and it ’s a secret.” After BB was returned-4- to foster care, he showed the caseworker pictures from June 27, 2014, depicting respondent, BB, and his father together at a bi rthday party. The caseworker te stified that she spoke with the children’s father and he told her that he was going to leave th e state of Michigan because he loved respondent and he was not going to be able to stay away f rom her.

Respondent was referred to a group therapy program designed to help abused or neglected women reunite with their children. Respondent continued individual therapy. BB’s

stomach issues and incontinence di d not occur in his foster car e placement.

In September 2014, the caseworker reported that respondent had been resistant to starting the group therapy program designed to help abused or neglected women reunite with their children because she felt that it was unfair that she had to participate in another program, and was now on the waiting list because she had missed her first op portunity to enter the program.

The caseworker testified that IB said that respondent told her to be bad in her foster home, that respondent told her that she was a “bitch” and that respondent hit her and her siblings during unsupervised visits and when they were placed in respondent’s h ome. The caseworker was concerned that respondent was coaching IB not to report inciden ts of domestic violence. IB’s therapist testified that respondent had expressed animosity tow ard IB’s foster parents to IB, and IB was confused as a result, as she felt that she had to choose between her biological parents and her foster parents. The caseworker also reported that BB had h it respondent during parenting times and called her names. BB also said that respondent told him not to look at his foster parents and that his foster parents did not care about him. Th e trial court ordered the goal for the minor children to be changed to adoption and ordered petitioner to initiate proceedings to terminate parental rights. The trial court suspended responden t’s parenting time. The children’s father voluntarily released his rights shortly thereafter.

Petitioner filed a supplemental petition requesting terminatio n of respondent’s parental rights to the minor children pursuant to MCL 712A.19b(3)(c)( i ), (c)( ii ), (g), and (j). At the termination hearing, respondent’s therapist, Bethany Bertapelle (also IB’s therapist) reported that respondent had initially benefite d from therapy from May 2013 t o November 2013, but had ceased therapy and declined her invitation to resume it. Berta pelle reported that IB had nightmares about respondent trying to kill her and preferred to have parenting time in a supervised environment rather than respondent’s home. Bertapel le felt that IB did not feel safe with respondent and that respondent instructed her children to keep secrets about what happened in her home. Bertapelle testified that she believed that the m inor children would be at a risk of harm if they were returned to re spondent. Bertapelle also test ified that IB was bonded with her foster parents.

The caseworker testified regard ing respondent’s completed serv ices. Despite the numerous services completed by r espondent, the caseworker felt that DB’s injuries in her care, as well as the continued presence of the children’s father in thei r lives, indicated that respondent did not provide her children with p roper supervision. She testifie d that respondent had told IB to keep secrets. The caseworker testified that she did not believ e that respondent could make enough progress regarding parenting for the minor children to b e returned to her care within a reasonable time because respondent did not understand how her r elationship with his father affected BB, respondent did not understand how IB still needed counseling for emotional regulation and coping skills, and respondent was not able to in ternalize what she learned during-5- counseling to the extent necessary to be capable of meeting the minor children’s needs as a group. The caseworker did not believe that respondent was able to handle the stress and responsibility of having all thre e of the minor children in her care at the same time. The

caseworker believed that emotiona l stability was a barrier to r eunification for respondent.

The caseworker further testifie d that while respondent and the children’s father’s divorce was finalized in July 2014, they were still in contact, even af ter the father’s parental rights were

terminated. The caseworker testified that domestic violence re mained a barrier for respondent

and that the barrier could not be addresse d within a reasonable time.

The caseworker also testified that termination of respondent’s parental rights was in the

minor children’s best interests b ased on respondent’s history r egarding parenting, emotional stability, and domestic relations, the minor children’s need fo r permanency, the lack of a positive bond between the children and respondent, the advantages of the minor children’s respective foster homes, and the foster families’ willingness to adopt. D uring cross-examination, the caseworker stated that respondent’s bond with IB was “pretty po sitive,” but that it did not appear that respondent had a strong, positive bond with IB and DB, although she believed that respondent loved the minor children.

A home care nurse for respondent’s grandmother testified to an incident that occurred approximately 8 to 10 months before the termination hearing. S he stated that respondent and the children’s father had argued over who would sell respondent’s p rescription drugs, that this argument took place in BB’s presen ce, and that respondent had s creamed loudly. The

caseworker testified that she c ounted the number of respondent’ s prescription pills and it appeared that respondent was tak ing her medicine appropriately.

Goldner testified that she felt respondent was bonded to her c hildren and that she had never witnessed any evidence of abuse in respondent’s home.

After the close of proofs, the trial court issued its opinion from the bench. The court found that there was clear and convincing evidence of a ground for termination under MCL 712A.19b(3)(c)( i ) because a condition that led to adjudication continued to exi st in regard to respondent’s inappropriate pa renting based on continued prob lems with physical abuse and inappropriate physical disciplin e and there was no reasonable l ikelihood that the condition would

be rectified within a reasonable time. The trial court found that there was clear and convincing evidence of a ground for termination under MCL 712A.19b(3)(c)( ii ) because other conditions that caused the minor children to come within the court’s juris diction continued to exist in regard to domestic violence and respondent’s sale of her prescription drugs and there was no reasonable

likelihood that the conditions woul d be rectified within a reas onable time. The trial court found that under MCL 712A.19b(3)(g), the re was clear and convincing e vidence that respondent failed to provide proper care and custod y for the minor children and that there was no reasonable expectation that respondent would be able to provide proper car e and custody within a reasonable time considering the children’s ages. The trial cou rt also found that under MCL 712A.19b(3)(j), there was cle ar and convincing evidence of a reasonable likelihood of harm to the minor children if they were returned to respondent because DB was harmed after the minor children were previously returned to respondent. The tri al court also found by a preponderance of the evidence that it was in the minor children ’s best interests to terminate-6- respondent’s parental rights based on respondent’s history with domestic violence and physical abuse, the minor children’s need for permanency, respondent’s i nability to provide the children with an appropriate home for “many months,” and the possibilityfor adoption. The trial court entered an order terminating res pondent’s parental rights. Thi s appeal followed.

II. STATUTORY GROUND S FOR TERMINATION

Respondent argues that the trial court erred in finding statut ory grounds for termination. We disagree. To terminate parental rights, a trial court must find the existence of a statutory ground for termination has been met by clear and convincing evi dence. MCL 712A.19b; In re McIntyre , 192 Mich App 47, 50; 480 NW2d 293 (1991). A trial court’s fa ctual findings in terminating parental rights are reviewed for clear error. MCR 3.977(K); In re Trejo Minors , 462 Mich 341, 356-357; 612 NW2d 407 (2000). Only one statutory gro und for termination must be

established. Trejo Minors , 462 Mich at 360.

Here, the trial court found st atutory grounds for terminating respondent’s parental rights under MCL 712A.19b(3)(c)( i ), (c)( ii ), (g), and (j), which provide:

The court may terminate a parent’s parental rights to a child if the court finds, by clear and convincing evide nce, 1 or more of the follo wing:

* * *

(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of aninitial 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.

( ii ) Other conditions exist that cause the child to come within th e court’s jurisdiction, the parent has re ceived recommendations to rectif y those conditions,

the conditions have not been rectif ied by the parent after the parent has received notice and a hearing and has be en given a reasonable opportunit y to rectify the conditions, and there is no reas onable likelihood that the cond itions will be

rectified within a reasonable ti me considering the child’s age.

* * *

(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.

* * *-7- (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.

Regarding MCL 712A.19b(3)(c)( i ), the first dispositional order was entered on November 19, 2012. The termination hearing occurred on Decembe r 3, 2014, well over 182 days after the first dispositional order. At the time of the a djudication, the trial court found statutory grounds for taking juri sdiction of the minor childrenunder MCL 712A.2(b) because respondent failed to provide necessary care and respondent’s ho me was an unfit environment, based on DB’s injuries that occurred just 13 days after his bir th. In its opinion, the trial court found a ground for termination under MCL 712A.19b(3)(c)( i ) based on its finding that a condition that led to adjudicatio n continued to exist in regardto respondent’s inappropriate parenting based on continued problems with physical abuse and i nappropriate physical discipline. The trial court ba sed that finding on the fact tha t on May 22, 2014, DB was found with bruises on his face, ears, side, back, and stomach. Altho ugh respondent argues on appeal that IB caused DB’s injuries rather that respondent, they occur red at a time when respondent was responsible for DB’s care and supp ort the trial court’s conclus ion that respondent had failed to rectify the conditions that lead to adjudication despite the pa ssage of two years and her participation in extensive services. Further, IB reported that respondent hit her during parenting time, and multiple persons testified that BB and respondent fou ght physically. The trial court thus did not clearly err in fi nding that this statutory ground was proven by clear and convincing evidence. MCR 3.977(K); Trejo Minors , 462 Mich at 356-357.

Regarding MCL 712A.19b(3)(c)( ii ), the trial court found that respondent was still permitting the children’s father to contact them and still had issues with domestic violence concerning the children’s father, even after respondent’s plan was updated to require that she not allow such contact, and even after the children’s father’s righ ts were terminated. This finding was supported by clear and convin cing evidence and was not clea rly erroneous. Although respondent argues on appeal that the trial court erred in concl uding that the children’s father had

not moved to Florida and that th e parents would remain in conta ct, the trial court found, based on the evidence presented, that the children’s father had contact with respondent throughout this

case and that he still had cont act with respondent at the time of the termination hearing, and that the evidence supported the inference they would remain in conta ct. This finding was also not clearly erroneous and supports the trial court’s finding of a s tatutory ground for termination under MCL 712A.19b(3)(c)( ii ). 2 MCR 3.977(K); Trejo Minors , 462 Mich at 356-357.

2 We do not find that the trial court’s reference to the alleged sale of respondent’s prescription drugs would have satisfied this statutory ground. The home hea lth nurse’s testimony was that respondent and the children’s father had one argument, 8 to 10 months before the termination hearing, concerning who would sell her prescription drugs. On the other hand, numerous pill counts conducted by caseworkers, as well as drug screens, seeme d to indicate that she was taking her prescription drugs as prescribed. In sum, evidence of resp ondent’s sale of her prescription drugs was considerably less than “clear and convincing.” See In re Martin , 450 Mich 204, 227; 533 NW2d 399 (1995), cert den sub nom Martin v Martin , 516 US 1113; 116 S Ct 912; 133 L Ed-8- Regarding MCL 712A.19b(3)(g), there was evidence that at the t ime of the termination hearing respondent had not rectif ied her issues with physical a buse and domestic violence. Additionally, respondent allowed unapproved contact between the children and their father, failed to understand how harmful this contact was for IB, coach ed IB and BB about what they should not say to caseworkers, and interfered with IB and DB’s relationships with their foster parents. A trial court may relyon a respondent’s history of f ailing to provide c are and custody in finding that there was no reasonable expectation that the respo ndent would be able to provide proper care and custody within a reasonable time. In re Archer , 277 Mich App 71, 75-76; 744 NW2d 1 (2007). The trial court did not clearly err in finding a statutory ground for termination under MCL 712A.19b(3)(g). MCR 3.977(K); Trejo Minors , 462 Mich at 356-357.

Finally, the trial court also found that under MCL 712A.19b(3) (j), there was clear and convincing evidence of a reasona ble likelihood of harm to the m inor children if they were returned to respondent because DB was harmed after the minor ch ildren were previously returned to respondent. As disc ussed above, there was signific ant evidence that respondent allowed father, a person who struggled with domestic violence a nd drugs and who had not participated in his treatment plan, to have unauthorized contac t with BB. And there was evidence that respondent (at a minimum) failed to prevent signi ficant injury to DB while he was in her care. A trial court may rely on a parent’s history in d etermining that a child would be harmed if returned the parent’s home. Archer , 277 Mich App at 75-76. Further, Bertapelle

testified that she believed that the minor children would be at a risk of harm if they were returned to respondent. The trial court did not clearly err in finding a statutory ground for termination under MCL 712A.19b(3)(j). MCR 3.977(K); Trejo Minors , 462 Mich at 356-357.

Although respondent argues that she completed her agency agree ment and was able to show significant improvement in removing the barriers to reunif ication, mere participation and

benefit from services is insuffici ent; rather, a p arent must de monstrate sufficient compliance with and benefit from services to address the problem targeted by th ose services. In re Frey , 297 Mich App 242, 248; 824 NW2d 569 (2012). As discussed above, re spondent did not address the problems targeted by her services in regard to parenting and do mestic violence. Further, she failed to comply with the portions of her treatment plan regard ing contact between the children

and their father. We find no clear error in the trial court’s findings regarding the statutory grounds for termination. MCR 3.977(K); Trejo Minors , 462 Mich at 356-357.

III. BEST-INTEREST DETERMINATION

Although not raised by respondent, we note that the trial cour t did not clearly err in finding that termination of respondent’s parental rights was in the minor children’s best interests. MCR 3.977(K); Trejo Minors , 462 Mich at 356-357. The trial court found by a preponderanc e of the evidence that it was in t he minor children’s best intere sts to terminate respondent’s parental rights based on respondent’s history with domestic vio lence and physical abuse, the minor children’s need for permanency, respondent’s inability to provide the children with an

2d 843 (1996) (defining clear and convincing evidence). Howeve r, even removing this factor from consideration, sufficient evidence remained to support the trial court’s finding concerning this statutory ground.-9- appropriate home for “many months,” and the possibility for ado ption. See In re Olive/Metts

Minors , 297 Mich App 35, 41-42; 823 NW2d 144 (2012); In re Moss , 301 Mich App 76, 90; 836 NW2d 182 (2013). We see no error in such a finding.

Affirmed.

/s/ Mark T. Boonstra /s/ William B. Murphy /s/ Jane E. Markey