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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re BALLI, Minors. June 15, 2017

No. 336103 St. Joseph Circuit Court Family Division

LC No. 2016-000069-NA

Before: O’B RIEN , P.J., and H OEKSTRA and B OONSTRA , JJ.

P ER C URIAM

.

Respondent appeals as of right t he circuit court’s October 14, 2016 order terminating his parental rights to the minor c hildren pursuant to MCL 712A.19b( 3)(g) and (j). We affirm. 1

“A court may terminate a respondent’s parental rights if one o r more of the statutory grounds for termination listed in MCL 712A.19b(3) have been pro ven by clear and convincing
evidence.” In re Olive/Metts Minors , 297 Mich App 35, 40; 823 NW2d 144 (2012). In this case, the trial court found that petitioner proved MCL 712A.19b(3)(g) by clear and convincing evidence. That statutory ground provides that a circuit court may terminate a parent’s parental rights if it finds, by clear and convincing evidence, that “[t] he parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody with in a reasonable time considering the child’s age.” MCL 712A.19b(3)(g). The burden of proving t his statutory ground is on the petitioner, and we review a circ uit court’s decision as to whet her that burden was satisfied for
clear error. In re Olive/Metts Minors , 297 Mich App at 40. “A trial c ourt’s decision is clearly erroneous ‘[i]f although there is evidence to supp ort it, the r eviewing court on th e entire evidence
is left with the definite and firm conviction that a mistake ha s been made.’ ” Id . at 41, quoting In
re Miller , 433 Mich 331, 337; 445 NW2d 161 (1989) (alterations by the In re Olive/Metts Minors Court).

1 At the outset, we reject respondent’s argument that the guardi an ad litem’s representation of the
children in this matter constituted ineffective assistance of c ounsel. As he recognizes, this Court has previously held that a par ent does not have standing to rai se such an argument on behalf of the children, In re EP , 234 Mich App 582, 597-598; 595 NW2d 167 (1999), overruled on other grounds by In re Trejo Minors , 462 Mich 341, 353; 612 NW2d 407 (2000), and we are bound by that decision, M CR 7.215(J)(1).-2- In this case, respondent argues that petitioner did not prove MCL 712A.19b(3)(g) by clear and convincing evidence. W e disagree. The children were removed from respondent’s care based on allegations that he had sexually assaulted a 13-y ear-old girl in the presence of at least one of his children. Respondent was arrested, and a subs equent search of respondent’s home resulted in the recovery of a hard drive that contained hu ndreds of videos and images containing child pornography. Acc ording to a police officer, s ome of the videos and images included adults engaging in sexual acts with children as young as approximately two years old. 2 Defendant was charged with numer ous felonies related to the sex ual assault and what was found on the hard drive, eventually pled guilty to several counts of possession child sexually abusive material, MCL 750.145c(4), and was sentenced to multiple years in prison. According to the children’s therapists, each ch ild was diagnosed with adjustment disorder and anxiety as a result of respondent’s actions and incar ceration. Both therapists opi ned that both children suffered emotionally and mentally as a re sult of respondent’s actions an d incarceration, that both children’s well-being had signifi cantly improved since they wer e removed from his care, that it was likely that the children woul d regress in the event that th ey were returned to respondent’s care, and that both children need ed permanency at this point in their lives. We agree with the circuit court that this evidence reflects that respondent faile d to provide proper care and custody
for the children and that there w as no reasonable expectation t hat he would be able to do so within a reasonable time considering the child’s age. Therefor e, the circuit court’s conclusion with respect to MCL 712A.19b(3)(g ) was not clearly erroneous. 3

“Once a statutory ground for te rmination has been proven, the trial court must find that termination is in the child[ren]’s best interests before it can terminate parental rights.” In re
Olive/Metts Minors , 297 Mich App at 40; see also MCL 712A.19b(5). “In deciding w hether 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 (citations omitted). Additionally, “the fact that a child is living with relatives w hen the case proceeds to termination is a factor to be considered in determining whether termination is in the child’s best interests.”

Id . at 43, citing In re Mason , 486 Mich 142, 164; 782 NW2d 747 (2010). “A trial court’s fai lure to explicitly address whether te rmination is appropriate in lig ht of the children’s placement with
relatives renders the factual re cord inadequate to make a best- interest determination and requires
reversal.” Id ., citing Mason , 486 Mich at 163-165; In re Mays , 490 Mich 993, 994; 807 NW2d 307 (2012).

2 Additionally, the children’s biol ogical mother testified that she had previously contacted law enforcement based on concerns about respondent frequently viewi ng child pornography as well as contacting minor children for inappropriate reasons on the i nternet. According to the mother, she observed respondent viewing child pornography as early as 2 003. It does not appear that anything ever came of the mothe r’s original contact with law en forcement; however, this
information was also included in the petition in this matter.

3 In light of this conclusion, we need not address the circuit c ourt’s conclusion with respect to MCL 712A.19b(3)(j). See In re Laster , 303 Mich App 485, 495; 845 NW2d 540 (2013).-3- In this case, respondent argues that reversal is required beca use the circuit court did not explicitly consider the fact that the children were placed in r elative placement when analyzing the children’s best interests. We disagree. While it is true that the circuit court did not explicitly reference the fact that the children were placed with their bio logical mother when determining whether termination was in the children’s best interests, respo ndent’s argument fails to acknowledge this Court’s decision in In re Schadler , 315 Mich App 406, 412-413; 890 NW2d 676 (2016), where this Court held that a child’s biological mot her is not a “relative” for purposes of MCL 712A.13a(1)(j). 4 We are bound by that decision. MCR 7.215(J)(1). 5 Furthermore, while respondent does not challenge the circuit court’s best-in terests determination on any other grounds, we would note that the record supports the circuit cou rt’s determination for similar reasons as those discussed with respect to MCL 712A.19b(3)(g). Therefore, the circuit court’s conclusion with respect to the ch ildren’s best interests was no t clearly erroneous.

4 This Court explained, in full, as follows:

Nevertheless, respondent argues that the trial court entirely failed to give any weight to [the child]’s plac ement with his biological mothe r. However, the trial court specifically acknowle dged the “week on / week off c ustodial arrangement between the father and mother” in the process of de termining that termination was in [the child]’s best interests. Moreover, MCL 712A.13a(1)(j) defines “relative,” and biological mother is not included in th e definition. See MCL 712A.13a(1)(j). Therefore, because [the child]’s mother wa s not a “relative” for purposes of MCL 7 12A.19a, the trial court was no t required to consider that relative placement. Respondent’s argument is mis placed. [ In re
Schadler , 315 Mich App at 412-413.]

5 We acknowledge that concluding that a child’s mother is not hi s or her relative is somewhat counterintuitive. However, such a conclusion does appear consi stent with the plain and ordinary meaning of the statutory language at issue, which provides, in relevant part, as follows:

“Relative” means an individual w ho is at least 18 years of age and related to the child by blood, marriage, or adoption, as grandparent, great-gr andparent, greatgreat-grandparent, aunt or uncle, great-aunt or great-uncle, gr eat-great-aunt or great-great-uncle, sibling, step sibling, nephew or niece, first cousin or first cousin once removed, and the spouse of any of the above, even after th e marriage has ended by death or divorce. A ste pparent, ex-stepparent, or the parent who shares custody of a half-sibling shall be considered a relative for th e purpose of placement. . . . [MCL 712A.13a(1)(j).]

As our Supreme Court has explaine d, “[w]hen statutory language is as clear as it is here, it is outside our province to second-guess the Legislature . . . .” Devillers v Auto Club Ins Ass’n , 473 Mich 562, 579; 702 NW2d 539 (2005), quoting Lewis v DAIIE , 426 Mich 93, 107-108; 393 NW2d 167 (1986). In any event, we are bound by In re Schadler , 315 Mich App at 412-413. MCR 7.215(J)(1).-4- Affirmed.

/s/ Colleen A. O'Brien
/s/ Joel P. Hoekstra
/s/ Mark T. Boonstra