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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re AL HARRIS, Minor. August 25, 2015

No. 325083 Oakland Circuit Court Family Division LC No. 13-809645-NA

Before: R ONAYNE K RAUSE , P.J., and G LEICHER and S TEPHENS , JJ.

P ER C URIAM

. Respondent appeals as of right the trial court’s order termina ting her parental rights to minor child ALH pursuant to MCL 712A.19b(3)(c)( i ), (g), and (h). On appeal, respondent challenges the trial court’s findings regarding the statutory g rounds for termination and the best interest determination. We affirm.

I. STATUTORY GROUNDS

“In order to terminate parental rights, the trial court must f ind by clear and convincing evidence that at least one of the statutory grounds for termina tion in MCL 712A.19b(3) has been met.” In re VanDalen , 293 Mich App 120, 139; 809 NW2d 412 (2011). The trial court’ s finding that a statutory ground has been proven by clear and convincing evidence is reviewed for clear

error. Id . A finding is clearly erroneous if this Court is left with a definite and firm conviction that a mistake has been made, giving due regard for the trial c ourt’s credibility determinations. In re Moss , 301 Mich App 76, 80; 836 NW2d 182 (2013).

A trial court may terminate a re spondent’s paren tal rights if it finds that (1) a statutory ground under MCL 712A.19b(3) has been established by clear and convincing evidence and (2) termination is in the child’s best interest. MCR 3.977(F); In re Fried , 266 Mich App 535, 540- 541; 702 NW2d 192 (2005). In this case, the trial court termin ated respondent’s parental rights under MCL 712A.19b(3)(c)( i ), (g) and (h). Respondent contends that the trial court clear ly erred on all three grounds. We disagree . MCL 712A.19b(3)(h) provide s:
(3) The court may terminate a parent’s parental rights to a chi ld if the court finds, by clear and convincing evidence , 1 or more of the following:

* * *-2- (h) The parent is imprisoned for such a period that the child w ill be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child’s proper care and c ustody, and 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.

The two-year period begins at the termination hearing and inclu des the time of incarceration in addition to the time required to provide the child with a suita ble home after release. See In re Perry , 193 Mich App 648, 650; 484 NW2d 768 (1992). Subsections (3)( c)( i ) and (3)(g) “are factually repetitive and wholly encompassed by MCL 712A.19b(3)( h).” In re Mason , 486 Mich 142, 165; 782 NW2d 747 (2010).

The incident leading to respondent’s incarceration was her inv olvement in a car accident that she admitted was an intentional suicide attempt. Instead of harming herself, respondent killed a passenger in another vehicle. She was arrested immedi ately after the accident, leaving ALH without appropriate custody or care. She later pleaded gui lty to manslaughter with a motor vehicle, MCL 750.321, and reckle ss driving causing serious bodi ly impairment, MCL 257.626(3), and was sentenced to 5 to 15 years’ imprisonment. The termination hearing occurred between August 2014, and October 2014, and respondent’ s earliest possible release date was in May 2019, well beyond the two-year mark. The Depar tment of Health and Human Services (DHHS) first placed ALH with a foster care family, but then moved her into a placement with respondent’s sister, Taylor Brown. Respondent e xpected that she would remain dependent upon Brown to care for ALH even a fter her release unt il she could secure employment and proper housing. Accordingly, the trial court did not err i n finding that the first element of MCL 712A.19b(3)(h) was supported by clear and convincing eviden ce; respondent was incarcerated, depriving ALH of a normal home for more than two years.
The second element is that the parent has failed to provide fo r the child’s proper care and custody. MCL 712A.19b(3)(h). A respondent may avoid terminati on of her rights by arranging for a relative to provide care for the child during incarcerati on. In re Mason , 486 Mich at 161, 163-165. Respondent argues that the re was no statutory basis f or termination because she had a plan for Brown to care for ALH.

Respondent testified that she and Brown had an informal agreem ent that Brown would care for her children if anything happened while respondent mother was serving in the United States Navy. Respondent had been discharged from the Navy seve n years before the car accident. Further, respondent asserted that she completed guar dianship papers which Brown sought to enforce in a different court action while the child p rotective proceedings were ongoing. However, respondent provided no documentation to support these claims. Assigned foster care worker, Jennifer Vasilovski of Catholic Charities of Southeaste rn Michigan (CCS), testified respondent had no preexisting plan for ALH’s care and that DHHS and CCS arranged the placement with Brown. In the absence of documentary proof to s upport respondent’s claims, the trial court found Vasilovski to be the more credible witness. Typically, “this Court accords deference to the special opport unity of the trial court to judg e the credibility of the witnesses.” In re Fried , 266 Mich App at 541; MCR 2.613(C) . Deference is particularlywarranted in this case, where the trial court’s credibility determination was sup ported by the record as a whole.-3- The trial court did not clearly e rr in crediting Vasilovski’s c laim that respondent had not planned for ALH’s care.

Finally, there was “no reasonabl e expectation that [respondent ] will be able to provide proper care and custody within a reasonable time” considering A LH’s age. MCL 712A.19b(3)(h). A parent’s compli ance with a parent agency agr eement is evidence of her ability to provide proper care a nd custody as contemplated in the statute. See In re JK , 468 Mich 202, 214; 661 NW2d 216 (2003) (“The respondent in this case ful filled every requirement of the parent-agency agreement. Her compliance negated any statutory basis for termination.”). The trial court acknowledged that respondent had done what she coul d to comply with her parent agency agreement by receiving m ental health services, attending parenting classes, and otherwise taking advantage of the programs available to her in jail and p rison. She had not obtained employment or proper housing, though Vasilovski acknowledged th at it was “not really feasible” for her to do so while she was serving her sentence. Yet the t rial court found that “even if mother had completed parenting classes and had completed some t ype of therapeutic process . . . we’d still be looking at the reasonable time considering the ch ild’s age.” That is, regardless of respondent’s fitness as a parent, it would be unreasonable for eight-year-old ALH to wait roughly 4 1⁄2 years for respondent ’s release from prison, and pos sibly longer than that, since respondent agreed she would need additional time to find a job and an appropriate home. This finding was supported by Vasilovski ’s testimony that ALH needed the stability of a normal home life without the interruptions she would face if she remained i n the foster care system. Brown also favored termination so that she could adopt ALH. Brown ne eded financial assistance to provide for ALH and DHHS was m ore likely to approve an adoptionsubsidy than a guardianship subsidy. The trial court did not clearly err in finding that t ermination was appropriate under MCL 712A.19b(3)(c)( i ), (g), and (h).

II. BEST INTEREST

Respondent next argues that the trial court clearly erred in f inding that termination of her parental rights was in ALH’s best interest. We disagree.

This Court reviews a trial court’s finding that termination is in a child’s best interest for clear error. In re Hudson , 294 Mich App 261, 264; 817 NW2d 115 (2011). “A finding is cl early erroneous if, although there is evidence to support it, this Co urt is left with a definite and firm conviction a mistake has been made.” Id . Whether termination of parental rights serves the child’s best interest must be pr oven by a preponderance of the evidence. In re Moss , 301 Mich App at 90.

“In deciding whether termination is in the child’s best intere st, the court may consider 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 ove r the parent’s home.” In re Olive/Metts , 297 Mich App 35, 41-42; 823 NW 2d 144 (2012) (internal citatio ns omitted). Psychological evaluations, paren ting techniques, and age of the child are also relevant. See In re Jones , 286 Mich App 126, 129-130; 777 NW2d 728 (2009). Placement of the child with a relative “weighs against termi nation under MCL 712A.19a(6)(a),” and must be considered as part of the best inte rest determination. In re Olive/Metts , 297 Mich App at 43.-4- Respondent first contends that the trial court failed to consi der her bond to ALH in the best interest ruling. This is i ncorrect. Respondent’s relatio nship with ALH was an acknowledged factor in the tria l court’s findings. Though the bond between parent and child was undisputed, Vasilovski and Sulfar o recommended termination of r espondent’s parental rights. Vasilovski testified that it was not in ALH’s best interest to remain in the foster care system for the remainder of respondent’s five-year minimum prison sentence . “I mean, I don’t think it’s beneficial for any child to grow up living their life in the fo ster care system, having a social worker make all the decisions, and come out to their home, and have to interview them every, you know, month or so.” Terminati on of respondent’s parental r ights would also allow Brown to adopt ALH, providing her with the stability and security of a c onsistent parental figure “without social workers in and out of her life constantly.”

Respondent’s “extensive mental health history” also weighed in favor of termination. Respondent has a pattern of self-destructive behaviors, includi ng two prior suicide attempts, the most recent of which resulted in the death of another person an d the initiation of this case. Sulfaro stated that respondent minimized these problems in her psychological evaluation. She attributed her hallucinations and efforts to commit “self-harm” to various medications. While respondent argues that her mental health has not impacted ALH t hus far, she could not identify who was watching ALH on the day of the accident. She had also made poor decisions regarding her children in the past. When s he served in the Navy, respond ent left her oldest daughter, AB, 1 in the care of her maternal grandmother, against whom responden t mother had made previous allegations of physical abuse. As a teenager, AB accused respo ndent mother of physical abuse, leading Sulfaro to believe that respondent may have been repeat ing the abuse she experienced in her own childhood as a “learned behavior” with AB. The trial c ourt, in its superior position to view the witnesses, was entitled to credit Sulfaro’s belief tha t respondent’s mental and emotional instability posed a threat to ALH in the long run. See, e.g., In re TK , 306 Mich App 698, 710; 859 NW2d 208 (2014) (deferring to the trial court’s reliance on clinician’s recommendations). Significant evidence supported the trial court’s finding that “ though the child is bonded with mother the risk of potential ha rm to the child does far outweig h any positive parenting that mother could provide in the future.”

Respondent mother further asserts that the trial court ignored the fact that ALH was placed with a relative. See In re Olive/Metts Minors , 297 Mich App at 43. This claim is contrary to the record. The trial court acknowledged that ALH’ s placement with her maternal aunt weighed against terminati on. Nevertheless, the trial court found that ALH’s need for permanency and safety should not be outweighed by the fact thatshe was placed with a relative, especially where that relative, Brown, was willing to adopt ALH and provide her with a stable home. A child’s placement with relatives is only one of many f actors to consider in the best interest determination. See In re Olive/Metts Minors , 297 Mich App at 42 (listing the child’s need for “permanency, stability, and finality” as other factors ). The trial court was not required to treat the relative placement a s decisive in light of ALH’s n eed for permanency. Sulfaro

1 AB is now an adult was not subject to the termination proceedi ngs. She is identified by her initials because she was a minor at the time of the incidents d iscussed infra

.-5- testified that respondent’s mental health would remain a risk t o ALH if she “had any part in planning” for ALH’s future. It was not clear error for the tri al court to prioritize ALH’s needs for stability and safety above respondent mother’s desire to co ntinue a relationship with her child. See In re Foster , 285 Mich App 630, 635; 776 NW2d 415 (2009) (“[O]nce a statuto ry ground is established, a parent’s interest in the care and cust ody of his or her child yields to the state’s interest in the protecti on of the child.”). The trial court did not clearly err in finding that termination of respondent’s parent al rights was in ALH’s best i nterest.

Affirmed.

/s/ Amy Ronayne Krause /s/ Elizabeth L. Gleicher /s/ Cynthia Diane Stephens