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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re J. T. Milliken, M inor. March 12, 2015

No. 322829; 322830
Van Buren Circuit Court Family Division

LC No. 12-017509-NA

Before: M. J. K ELLY , P.J., and M URPHY and H OEKSTRA , JJ.

P ER C URIAM

.

Respondents appeal by right an order of the trial court termin ating their parental rights to the minor child pursuant to MCL 712A.19b(3)(g) (failure to prov ide 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 res pondents’ parental rights, we affirm.

Both respondents in this case have an established history of s ubstance abuse and related criminal activity. Notably, in 2011, respondents were arrested for operating and maintaining a methamphetamine laboratory. While both respondents were on pro bation relating to that offense, mother gave birth to the minor child, JTM, on October 2, 2012. At that time, mother tested positive for controlled s ubstances and JTM tested positi ve 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 m other’s relatives. Respondents were adjudicated in November o f 2012 and offered numerous servi ces 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 ab use illegal substances, they repeatedly violated their probation, and they were in and out o f 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 complianc e with services during her most recent incarceration. Father asserts that termination of his p arental 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 pl acement with a relative
demonstrates that he is able t o provide care and custody while incarcerated.-2- “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). 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 t here is evidence to support it, we are lef t with a definite and firm co nviction that a mistake has been
made. In re HRC , 286 Mich App 444, 459; 781 N W2d 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 st atute 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 reasonabl e 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 wi th a parent-agency agreement may be indicative of a parent’s inab ility to provide proper care an d custody for the child. See In re Trejo , 462 Mich 341, 360-363 & n 16; 612 NW2d 407 (2000). An inabil ity to provide care and custody might also be demonstrated, for example, by a continuat ion of the conditions prompting adjudication, lack of housing and employment, as well as eviden ce 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 arres ted in 2011 for operating or maintaining a methamphetamine laboratory. JTM was born on Octo ber 2, 2012, while respondents were on probation relating to this offense, at whic h time mother tested positive for controlled substances, in viola tion of her probation. Likewise , at the time of JTM’s birth, father had also recently tested positive for methamphetamines, in viol ation of his probation. Furthermore, JTM also tested positive for opiates. As a result , both respondents were incarcerated for probation viola tions. While still in the hosp ital, 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 rel atives for over 20 months at the time of the termination hearing.

During the time that services were offered, mother was incarce rated for all but approximately five of the 20 months this case was pending. Mot her’s time in jail resulted from repeated violations of her probation, most often involving issu es with controlled substances.

1 JTM is a member of the Pokagon Band of Potawatomi Indians. Be cause an Indian child is involved, before terminating pare ntal rights, the trial court w as also required to find (1) that “active efforts” were made to provide remedial services and reh abilitative programs designed to prevent the breakup of the India n family and that those efforts were unsuccessful, a nd (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 wo uld 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 challe nge with respect to these req uirements and, upon review of the record, we find no error in the tri al court’s findings that the se requirements have been satisfied.-3- Specifically, as noted above, moth er was incarcerated in Octobe r of 2012 after she tested positive for controlled substances at the time of JTM’s birth, in violat ion of her probation. Mother was next incarcerated between December 5, 2012 and December 18, 201 2, after she again tested positive for controlled substances, in violation of her probati on. Mother was incarcerated again between January 9, 2013 and May 5, 2013, after it was discovere d 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 viol ation 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 subs tance 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. Infact, 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 th at she maintained stable housin g. Overall, given mother’s repeated failure to comply with services, her numerous missed v isits 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 coul d not provide proper care and custody for JTM. Given JTM’s age and the fact that JTM had spe nt the entire 20 months of her life with relatives, the trial court also did not clearly err i n concluding that there was not a
reasonable likelihood mother would be able to provide proper ca re and custody in a reasonable time. Consequently, termination of mother’s parental rights wa s 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 th at she did not test positive for
controlled substances after Ja nuary 2013 and that she successfu lly completed some services during her last term of incarceration. The lack of positive dr ug tests carries little weight given that mother failed to submit to any DHS drug screens between Ja nuary and May 2013, and was thereafter incarcerated for the majority of the remainder of th e proceedings. With respect to mother’s recent participation in services, the trial court ackn owledged that mother completed some services in jail, but the trial court nonetheless found th at termination was proper. We see nothing clearly erroneous in the se findings given that the serv ices 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 outs ide of the structured environment provided by jail. Given her repeated failures to c omply 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 mothe r’s arguments, the trial court’ s findings were firmly based on the evidence presented and we cannot c onclude 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 month s this case was pending. In-4- addition to the jail time father served close in time to the ch ild’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 wa s again incarcerated in midSeptember, 2013, after he once again failed a drug test. On th e latter occasion, father was sentenced to 36 months’ to 20 years’ imprisonment, and was stil l in prison at the time the termination hearing was held, with an earliest release date of September 2015. Like mother’s repeated probation violations a nd incarcerations, father’s prob ation violations and drug related
infractions demonstrated a disre gard of his parent-agency treat ment plan which required him to comply with the terms of his probation, to submit to drug scree ns, and to remain drug free, all of which father failed to accomplish, thereby demonstrating an ina bility 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 p rogress was poor. Father obtained employment, but it was sporadic. Moreover, father par ticipated in some parenting time visits, but his attendance was in consistent. There is no evide nce that father participated in any other services during this time period, such as a substance abu se assessment or parenting education. In fact, father mi ssed his scheduled substance abus e assessment on September 12, 2013. Moreover, there is no record evidence that father obtain ed stable housing. Given the above evidence, the trial court d id not clearly err in finding that father failed to provide proper care and custody for JTM. Likewis e, given father’s history of drug abuse, his fa ilure to address that issue in any meaningful way during the proceedings, and hi s failure to participate in other
services or to address barriers to reunification during the pro ceedings, the trial court did not clearly err in finding no reasonable expectation that father wo uld be able to provide proper care and custody within a reasonable time considering JTM’s age. Co nsequently, termination of father’s parental rights was proper under MCL 712A.19b(3)(g).

In opposition to this conclusion, father asserts on appeal tha t termination was improper because he was not afforded a sufficient opportunity to partici pate in the DHS service plan. Father’s analysis in this respect mirrors the analysis set fort h 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 respo ndent during a ch ild protective proceeding. However, the facts in In re Mason are distinguishable from the facts in this case and
father is not entitled t o relief on this basis.

Specifically, in In re Mason , 486 Mich at 156-160, our Supr eme Court held that DHS and
the trial court violated their s tatutory duties to ensure the r espondent’s participa tion in the service plan by failing to send the resp ondent a copy of the service pl an, 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 i ncarcerated respondent fulfill so me 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 invol ved 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 t hat while father was incarcerat ed, the caseworker was in contact with MDOC in an attempt to facilitate prison services. Thus, i t is clear that DHS adhered to its statutory duties to involve fathe r, kept him apprised of the pr oceedings, and sought services on-5- his behalf while he was incarcer ated. 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. Thi s argument lacks merit. It is true, as defendant argues on appeal, that “[t]he mere present inability to personally care f or one's children as a result of
incarceration does not constitu te grounds for termination.” In re Mason , 486 Mich at 160. However, in its written termina tion order, the trial court expr essly 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 pri ority in his life, as evidenced by father’s repeated probation viol ations, continued drug use, andoverall failure to abide by his case service plan. Indeed, as detailed above, even when not incarce rated, father failed to comply with
and benefit from services. The re was, in short, no indication that he could provide JTM with proper care and custody, and it w as on this basis, not his inca rceration, that father’s parental rights were terminated. Given the above evidence, we cannot co nclude that the trial court’s conclusions in this regar d 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 pla ced 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 in carcerated, which made it “unnecessary for [him] to make ongoing arrangements with the re latives 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 r espondent could “fulfill his dut y 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-int erest determination as discussed infra . Cf. id. at 164. Moreover, the circumsta nces in this case are not comp arable 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 placemen t or that he would have voluntarily chosen to place JTM in the care of mother’s relatives while inc arcerated. Cf. id. at 163-164. Instead, JTM was involuntarily r emoved from respondents’ care b ecause 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, th us 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 an d 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 res pondents’ parental rights under MCL 712A.19b(3)(g), we need not consider the additional g round on which termination
was based. In re HRC , 286 Mich App at 461. Nevertheless, we note briefly that we s ee no clear error in the trial court’s finding that termination was warrant ed under MCL 712A.19b(3)(j). Namely, the same evidence demonstrating that mother and father would not be able to provide-6- proper care and custody within a reasonable time supported the conclusion that returning the child to respondents’ care w ould result in harm to JTM.

Next, on appeal, father in part icular also challenges the tria l 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 i s desirous of obtaining custody of JTM upon his release. Although acknowledging a lack of participation in his case serv ice plan, father argues he cannot
be faulted for this failure bec ause the Clinton County Jail did not have services to address his
substance abuse issues. Fathe r also contends that he is bonded with JTM, and he further emphasizes that JTM is in placement with a relative with whom f ather 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 term inate 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 intere sts 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 de termining 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 visitatio n with the child, the child's need for permanency, stability, and finali ty, the advantages of a foster home over the parent's home, and the possibility of adoption. Id. at 713-714. We review the tri al court’s best interests
determination for clear error. Id. at 713.

In this case, the trial court did not clearly err in determini ng 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 wr itten order, the child was ap proximately 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 wa s incarcerated, and was not set to be
released for another 15 months. Father had failed to participa te 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 f ather’s overall lack of participation, his current incarceration, and the additional time father would certainly need after being released from prison to address his defi ciencies, 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 fathe r at one time which had since faded given that father had not seen JTM in 10 months at the ti me 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 “th riving,” had expressed an interest in adopting JTM. While placement with a relative weig hs against termination, In re
Olive/Metts Minors , 297 Mich App at 43, the trial co urt expressly addressed JTM’s placement with relatives and concluded that in this case, given the possi bility of adoption and that JTM had resided with these relatives her entire life, JTM’s best intere sts, and particularly her need for finality and stability, were best served by termination. Overa ll, on the basis of the evidence-7- presented, the trial court did not clearly err by determining t hat termination of father’s parental rights was in the child ’s best interests.

Mother does not challenge the trial court’s best interest dete rmination on appeal. Nevertheless, on this record, we n ote that the trial court did not clearly err in finding that termination of her parental right s was also in the best interes ts of the child.

Affirmed.

/s/ Michael J. Kelly /s/ William B. Murphy
/s/ Joel P. Hoekstra