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STATE OF MICHIGAN 

COURT OF APPEALS 

 

UNPUBLISHED 

In re J. T. Milliken, Minor. March 12, 2015 

No. 322829; 322830 

Van Buren Circuit Court 

 Family Division 

LC No. 12-017509-NA 

 

Before: M. J. KELLY, P.J., and MURPHY and HOEKSTRA, JJ. 

PER CURIAM. 

 Respondents appeal by right an order of the trial court terminating their parental rights to 

the minor child pursuant to MCL 712A.19b(3)(g) (failure to provide proper care or custody) and 

(j) (reasonable likelihood of harm if child returned to parent’s care). Because the trial court did 

not clearly err by terminating respondents’ parental rights, we affirm. 

 Both respondents in this case have an established history of substance abuse and related 

criminal activity. Notably, in 2011, respondents were arrested for operating and maintaining a 

methamphetamine laboratory. While both respondents were on probation relating to that 

offense, mother gave birth to the minor child, JTM, on October 2, 2012. At that time, mother 

tested positive for controlled substances and JTM tested positive for opiates. Around the same 

time, father tested positive for methamphetamine. By order of the court, JTM was removed from 

respondents’ care while still in the hospital and placed with mother’s relatives. Respondents 

were adjudicated in November of 2012 and offered numerous services aimed at reunification. 

Despite these proffered services, respondents failed to comply with their case service plan, they 

frequently missed parenting time with JTM, they continued to abuse illegal substances, they 

repeatedly violated their probation, and they were in and out of jail. Ultimately, the trial court 

terminated respondents’ parental rights under MCL 712A.19b(3)(g) and (j). Respondents now 

appeal as of right. 

 On appeal, respondents first argue that the trial court erred in finding statutory grounds 

for terminating their parental rights. Mother, in particular, argues that the trial court gave 

insufficient weight to her recent progress, including compliance with services during her most 

recent incarceration. Father asserts that termination of his parental rights was inappropriate 

because he did not have a meaningful opportunity to participate in services while incarcerated. 

He also contends that the trial court impermissibly terminated his parental rights merely because 

he was incarcerated when in fact, according to father, JTM’s placement with a relative 

demonstrates that he is able to provide care and custody while incarcerated. 
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 “In order to terminate parental rights, the trial court must find by clear and convincing 

evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been 

met.” In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011).1

 We review for clear 

error a trial court’s determination that a statutory ground has been proven by clear and 

convincing evidence. Id.; MCR 3.977(K). A finding is clearly erroneous if, although there is 

evidence to support it, we are left with a definite and firm conviction that a mistake has been 

made. In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). 

 In this case, the trial court did not clearly err in finding that a ground for termination of 

both parents’ rights existed under MCL 712A.19b(3)(g). That statute provides that a trial court 

may terminate parental rights to a child if the “parent, without regard to intent, fails to provide 

proper care and custody for the child 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.” 

For purposes of this provision, a parent’s failure to comply with a parent-agency agreement may 

be indicative of a parent’s inability to provide proper care and custody for the child. See In re 

Trejo, 462 Mich 341, 360-363 & n 16; 612 NW2d 407 (2000). An inability to provide care and 

custody might also be demonstrated, for example, by a continuation of the conditions prompting 

adjudication, lack of housing and employment, as well as evidence of a longstanding drug 

addiction and a persistent failure to address this addiction. In re Williams, 286 Mich App 253, 

272; 779 NW2d 286 (2009). 

 Turning to the present facts, as noted, respondents were arrested in 2011 for operating or 

maintaining a methamphetamine laboratory. JTM was born on October 2, 2012, while 

respondents were on probation relating to this offense, at which time mother tested positive for 

controlled substances, in violation of her probation. Likewise, at the time of JTM’s birth, father 

had also recently tested positive for methamphetamines, in violation of his probation. 

Furthermore, JTM also tested positive for opiates. As a result, both respondents were 

incarcerated for probation violations. While still in the hospital, JTM was removed from 

respondent’s care and placed with mother’s relatives. JTM has never lived with respondents, and 

had been living with mother’s relatives for over 20 months at the time of the termination hearing. 

 During the time that services were offered, mother was incarcerated for all but 

approximately five of the 20 months this case was pending. Mother’s time in jail resulted from 

repeated violations of her probation, most often involving issues with controlled substances. 

 

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 JTM is a member of the Pokagon Band of Potawatomi Indians. Because an Indian child is 

involved, before terminating parental rights, the trial court was also required to find (1) that 

“active efforts” were made to provide remedial services and rehabilitative programs designed to 

prevent the breakup of the Indian family and that those efforts were unsuccessful, and (2) that the 

evidence, including testimony from a qualified expert witness, established beyond a reasonable 

doubt that the continued custody of the child by the parents would likely result in serious 

emotional or physical damage to the child. See 25 USC 1912(d), (f); MCR 3.977(G)(1), (2). 

Neither respondent raises a challenge with respect to these requirements and, upon review of the 

record, we find no error in the trial court’s findings that these requirements have been satisfied. 
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Specifically, as noted above, mother was incarcerated in October of 2012 after she tested positive 

for controlled substances at the time of JTM’s birth, in violation of her probation. Mother was 

next incarcerated between December 5, 2012 and December 18, 2012, after she again tested 

positive for controlled substances, in violation of her probation. Mother was incarcerated again 

between January 9, 2013 and May 5, 2013, after it was discovered that she was attempting to 

deliver illegal narcotics to father while he was incarcerated and after she failed to submit to a 

random drug screen. Mother was incarcerated again from July 26, 2013 to June 3, 2014 for an 

arrest for retail fraud and violation of her probation. These repeated probation violations and 

drug related infractions demonstrated a disregard of the trial court’s orders which required 

mother to comply with the terms of her probation, to submit to drug screens, and to remain drug 

free, all of which mother failed to accomplish. 

 Moreover, during the time mother was not incarcerated, she had minimal contact with 

DHS and she failed to participate in any services, such as substance abuse counseling or 

parenting education. She missed numerous parenting time visits with JTM and attended no 

parenting time visits after her May 2013 release from jail. In fact, at the time of the termination 

hearing, mother had not seen JTM in 17 months. Moreover, there is no record evidence that 

mother obtained employment or that she maintained stable housing. Overall, given mother’s 

repeated failure to comply with services, her numerous missed visits with JTM, her continued 

struggle with substance abuse, and her failure to address basic necessities such as housing, the 

trial court did not clearly err in determining that mother could not provide proper care and 

custody for JTM. Given JTM’s age and the fact that JTM had spent the entire 20 months of her 

life with relatives, the trial court also did not clearly err in concluding that there was not a 

reasonable likelihood mother would be able to provide proper care and custody in a reasonable 

time. Consequently, termination of mother’s parental rights was appropriate under MCL 

712A.19b(3)(g). 

 On appeal, in arguing that termination under MCL 712.19b(3)(g) was improper, mother 

asserts that the trial court impermissibly speculated regarding her future ability to provide for 

JTM and, in particular, gave insufficient weight to the fact that she did not test positive for 

controlled substances after January 2013 and that she successfully completed some services 

during her last term of incarceration. The lack of positive drug tests carries little weight given 

that mother failed to submit to any DHS drug screens between January and May 2013, and was 

thereafter incarcerated for the majority of the remainder of the proceedings. With respect to 

mother’s recent participation in services, the trial court acknowledged that mother completed 

some services in jail, but the trial court nonetheless found that termination was proper. We see 

nothing clearly erroneous in these findings given that the services highlighted by mother did not 

address her substance abuse problem and that, despite numerous opportunities, mother had not 

demonstrated an ability to comply in any way with services outside of the structured 

environment provided by jail. Given her repeated failures to comply with services for the 

majority of the time this case was pending before the trial court, mother’s belated efforts while in 

jail, though commendable, simply were too little, too late. Cf. In re Williams, 286 Mich App at 

272. Overall, contrary to mother’s arguments, the trial court’s findings were firmly based on the 

evidence presented and we cannot conclude that the trial court’s decision was clearly erroneous. 

 Regarding father’s ability to provide care and custody for JTM, similar to mother, father 

was incarcerated for all but approximately four of the 20 months this case was pending. In 
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addition to the jail time father served close in time to the child’s birth for failing a drug test, 

father was incarcerated between November 20, 2012 and June 17, 2013, after he submitted a 

positive drug screen, in violation of his probation. Father was again incarcerated in midSeptember, 2013, after he once again failed a drug test. On the latter occasion, father was 

sentenced to 36 months’ to 20 years’ imprisonment, and was still in prison at the time the 

termination hearing was held, with an earliest release date of September 2015. Like mother’s 

repeated probation violations and incarcerations, father’s probation violations and drug related 

infractions demonstrated a disregard of his parent-agency treatment plan which required him to 

comply with the terms of his probation, to submit to drug screens, and to remain drug free, all of 

which father failed to accomplish, thereby demonstrating an inability to provide proper care and 

custody for JTM. See In re Trejo, 462 Mich at 360-363 & n 16. 

 Furthermore, between June 17, 2013, when father was released from jail, and midSeptember 2013, when he was re-incarcerated, father’s overall progress was poor. Father 

obtained employment, but it was sporadic. Moreover, father participated in some parenting time 

visits, but his attendance was inconsistent. There is no evidence that father participated in any 

other services during this time period, such as a substance abuse assessment or parenting 

education. In fact, father missed his scheduled substance abuse assessment on September 12, 

2013. Moreover, there is no record evidence that father obtained stable housing. Given the 

above evidence, the trial court did not clearly err in finding that father failed to provide proper 

care and custody for JTM. Likewise, given father’s history of drug abuse, his failure to address 

that issue in any meaningful way during the proceedings, and his failure to participate in other 

services or to address barriers to reunification during the proceedings, the trial court did not 

clearly err in finding no reasonable expectation that father would be able to provide proper care 

and custody within a reasonable time considering JTM’s age. Consequently, termination of 

father’s parental rights was proper under MCL 712A.19b(3)(g). 

 In opposition to this conclusion, father asserts on appeal that termination was improper 

because he was not afforded a sufficient opportunity to participate in the DHS service plan. 

Father’s analysis in this respect mirrors the analysis set forth in In re Mason, 486 Mich 142, 156-

157; 782 NW2d 747 (2010), in which our Supreme Court provided an overview of DHS and the 

trial court’s statutory duties to involve an incarcerated respondent during a child protective 

proceeding. However, the facts in In re Mason are distinguishable from the facts in this case and 

father is not entitled to relief on this basis. 

 Specifically, in In re Mason, 486 Mich at 156-160, our Supreme Court held that DHS and 

the trial court violated their statutory duties to ensure the respondent’s participation in the service 

plan by failing to send the respondent a copy of the service plan, failing to procure the 

respondent’s signature on the plan, failing to make contact with the prison social workers to see 

if the prison could help the incarcerated respondent fulfill some of the service plan requirements, 

and failing to update or even contact the respondent about the case. Here, however, father does 

not argue—and the record does not support—that he was not involved with the proceedings. To 

the contrary, the record discloses that father was present for every hearing, was in contact with 

the caseworker regularly, and was provided a copy of and signed the initial case service plan. 

Moreover, the record discloses that while father was incarcerated, the caseworker was in contact 

with MDOC in an attempt to facilitate prison services. Thus, it is clear that DHS adhered to its 

statutory duties to involve father, kept him apprised of the proceedings, and sought services on 
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his behalf while he was incarcerated. Any barrier to services while father was incarcerated was 

not the result of a failure by DHS or the trial court. 

 Father also argues that the trial court improperly terminated his parental rights merely 

because he was incarcerated. This argument lacks merit. It is true, as defendant argues on 

appeal, that “[t]he mere present inability to personally care for one's children as a result of 

incarceration does not constitute grounds for termination.” In re Mason, 486 Mich at 160. 

However, in its written termination order, the trial court expressly indicated that its decision to 

terminate father’s parental rights was not based solely on the fact that father was incarcerated, 

but rather on the fact that father had failed to make JTM a priority in his life, as evidenced by 

father’s repeated probation violations, continued drug use, and overall failure to abide by his case 

service plan. Indeed, as detailed above, even when not incarcerated, father failed to comply with 

and benefit from services. There was, in short, no indication that he could provide JTM with 

proper care and custody, and it was on this basis, not his incarceration, that father’s parental 

rights were terminated. Given the above evidence, we cannot conclude that the trial court’s 

conclusions in this regard were clearly erroneous. 

 Finally, relying once more on In re Mason, father argues that his parental rights could not 

be terminated under MCL 712A.19b(3)(g) where he voluntarily placed the child with a relative 

caregiver. We disagree. In In re Mason, 486 Mich at 163-164, the respondent’s children were 

voluntarily placed with the respondent’s family while he was incarcerated, which made it 

“unnecessary for [him] to make ongoing arrangements with the relatives that would permit him 

to preserve his rights and remain in contact with [the children].” Our Supreme Court held that, 

by failing to consider the placement with the respondent’s relatives, the trial court failed to 

properly consider whether the respondent could “fulfill his duty to provide proper care and 

custody in the future by voluntarily granting legal custody to his relatives during his remaining 

term of incarceration.” Id. at 163. Unlike in Mason, in this case, the trial court specifically 

addressed JTM’s placement with relatives in making its best-interest determination as discussed 

infra. Cf. id. at 164. Moreover, the circumstances in this case are not comparable to those in In 

re Mason. Here, the child was placed with mother’s relatives, not father’s, and there is no 

indication that father did anything to facilitate that placement or that he would have voluntarily 

chosen to place JTM in the care of mother’s relatives while incarcerated. Cf. id. at 163-164. 

Instead, JTM was involuntarily removed from respondents’ care because she tested positive for 

opiates at birth and because respondents had a history of drug abuse. Finally, the record 

discloses that mother’s relatives were in favor of adoption, thus making it apparent that they 

were not interested in “preserv[ing]” father’s rights while he remained incarcerated. See id. at 

164. In short, JTM’s placement with mother’s cousins does not render clearly erroneous the trial 

court’s conclusion that father failed to provide proper care and custody and that there is no 

reasonable expectation that he would be able to do so within a reasonable time considering 

JTM’s age. 

 Because the trial court did not clearly err in terminating respondents’ parental rights 

under MCL 712A.19b(3)(g), we need not consider the additional ground on which termination 

was based. In re HRC, 286 Mich App at 461. Nevertheless, we note briefly that we see no clear 

error in the trial court’s finding that termination was warranted under MCL 712A.19b(3)(j). 

Namely, the same evidence demonstrating that mother and father would not be able to provide 
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proper care and custody within a reasonable time supported the conclusion that returning the 

child to respondents’ care would result in harm to JTM. 

 Next, on appeal, father in particular also challenges the trial court’s determination that 

termination was in JTM’s best interests. Specifically, father maintains that he will soon be 

released on parole and that he is desirous of obtaining custody of JTM upon his release. 

Although acknowledging a lack of participation in his case service plan, father argues he cannot 

be faulted for this failure because the Clinton County Jail did not have services to address his 

substance abuse issues. Father also contends that he is bonded with JTM, and he further 

emphasizes that JTM is in placement with a relative with whom father asserts he has “a good 

working relationship.” 

 “Once a statutory ground for termination has been proven, the trial court must find that 

termination is in the child’s best interests before it can terminate parental rights.” In re 

Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5). 

“[W]hether termination 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 

trial court should weigh all the evidence available to it in determining the child’s best interests. 

In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). Factors relevant to a determination 

of the child’s best interests include: the child's bond to the parent, the parent's compliance with 

his or her case service plan, the parent’s history of visitation with the child, the child's need for 

permanency, stability, and finality, the advantages of a foster home over the parent's home, and 

the possibility of adoption. Id. at 713-714. We review the trial court’s best interests 

determination for clear error. Id. at 713. 

 In this case, the trial court did not clearly err in determining that a preponderance of the 

evidence supported the conclusion that termination was in JTM’s best interests. At the time of 

the trial court’s June 30, 2014 written order, the child was approximately 20 months old and had 

spent her entire life with a relative foster care family. Thus, as the trial court recognized, there 

was a need for finality. At the time of termination, father was incarcerated, and was not set to be 

released for another 15 months. Father had failed to participate in the service plan even when he 

was not incarcerated, and failed to address his barriers to reunification, including his substance 

abuse issues, in any meaningful way. He was also inconsistent with his parenting time visits and 

clearly did not make the child a priority in his life. Given father’s overall lack of participation, 

his current incarceration, and the additional time father would certainly need after being released 

from prison to address his deficiencies, it was unlikely that the child could be returned to his care 

in the foreseeable future, if at all. Moreover, JTM had never resided with father, and the trial 

court indicated that JTM had at most a “slight bond” with father at one time which had since 

faded given that father had not seen JTM in 10 months at the time of the termination hearing. 

JTM clearly required a permanent, safe, and stable home, which father was incapable of 

providing, while in contrast the foster home, where JTM was “thriving,” had expressed an 

interest in adopting JTM. While placement with a relative weighs against termination, In re 

Olive/Metts Minors, 297 Mich App at 43, the trial court expressly addressed JTM’s placement 

with relatives and concluded that in this case, given the possibility of adoption and that JTM had 

resided with these relatives her entire life, JTM’s best interests, and particularly her need for 

finality and stability, were best served by termination. Overall, on the basis of the evidence 
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presented, the trial court did not clearly err by determining that termination of father’s parental 

rights was in the child’s best interests. 

 Mother does not challenge the trial court’s best interest determination on appeal. 

Nevertheless, on this record, we note that the trial court did not clearly err in finding that 

termination of her parental rights was also in the best interests of the child. 

 Affirmed. 

/s/ Michael J. Kelly 

/s/ William B. Murphy 

/s/ Joel P. Hoekstra