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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

In re CANNON, Minors. UNPUBLISHED July 25, 2017

No s

. 336413 ; 336414

Kent Circuit Court Family Division

LC No s

. 14

- 052762

- NA ; 14

- 052763

- NA

Before: S AWYER

, P .J., and H OEKSTRA and B ECKERING , JJ.

P ER C URIAM

.

In this consolidated case, r espondent

- father and respondent

- mother appeal separately as of right the trial court’s order terminating their parental rights to the minor children under MCL 712A.19b(3)(c)( i ) (conditions of adjudication continue to exist) and MCL 712A.19b(3) (g) (failure to provide proper care and custody)

. We affirm.

I. RELEVANT FACTS A ND PROCEDUR AL HISTORY

Mother is the biol ogical parent and father is the legal parent of the two minor children. 1
At the time of the children’s removal, father was homeless and living in downtown Grand Rapids, Michigan , and mother was in an abusive relationship with another man

. The Department of Health and Human Services (DHHS) filed a petition for removal of the children from

mother’s house after becoming aware that police had responded to mother’s home multiple times

for incidents of domestic violence while the children were home

.

At the Oct ober 2014 adjudication hearing

, Kayla Coombs

, a foster

- care worker from Catholic Charities of West Michigan assigned to the case for both children , testified that father’s

barriers to reunification with the children were substance abuse, stable housing, employment, parenting skills, and emotional stability. She testified that mother’s barriers to reunification were substance abuse, emotional stability, domestic violence issues, parenting skills, and stable housing . Coomb s also testified that the children were placed together in a licensed foster home.

1 Father signed an affidavit of parentage during the course of these proceedings.- 2

- The record indicates that father and mother made little progress early on . Father resolved his homelessness by moving in with his new girlfriend, Anita Hernandez, who live d in housing deemed appropriate for the children. Hernandez became involved in father’s treatment plan, but her participation remained sporadic at best. F ather continued to test positive for THC, t he main ingredient in marijuana and, a lthough he received multiple referrals for substance abuse and anger management counseling, he attended few

, if any

, and in the opinion of one of his

caseworker s 2 father d id not seem to benefit from th e sessions he did attend. Father completed a parenting class, but was dis charged from another because of lack of attendance.

Similarly, mother was referred to multiple counseling programs for her substance abuse, domestic violence issues, and parenting skills

, but missed a number of appointments . She completed one parenting class but was discharged from another due to nonattendance. She also tested positive for marijuana use on a few occasions. Early in 2015, police arrested mother for creating a disturbance at a bus stop, where she was arguing and f ighting with people . When police arrived

, she was holding a beer can in her hand and appeared “highly intoxicated.” Police arrested mother after she failed their sobriety tests, and she spent two days in jail. According to her caseworker, domestic viole nce continued to be mother’s most serious barrier to reunification. The caseworker told the court that during the reporting period from January 2015 to Ma r ch 2015,

mother had “run

- ins” with her abusive ex

- boyfriend multiple times. One such incident resul ted in an episode of domestic violence that left mother with a black eye. Mother was “pretty intoxicated” during this incident. In addition , mother was discharged from the YWCA domestic

violence counseling program due to nonattendance

.

As 2015 wore on, both parents appeared to make progress toward removal of their respective barriers to reunification with their children and eventually were allowed unsupervised parenting time . At the June review hearing mother’s caseworker testified that

, although

domest ic violence continued to be a problem

, 3 mother was “very active” in her treatment plan and was doing “very well” overall. At the September review hearing, the caseworker reported that mother was making progress on her treatment plan, that she had complete d all of the parenting classes to which the agency had referred her, demonstrated emotional stability, obtained stable housing, and had all negative drug screens during that period. Additionally,

when mother’s abusive ex

- boyfriend showed up at mother’s ap artment, she called the police and had him served with the PPO. With regard to father, the caseworker reported that he was appropriate with the children during supervised parenting time and that he had tested negative for drugs during the reporting period

. Nevertheless , he was still having ang ry outbursts, including

outbursts toward the foster

- care worker, the children’s att orney, and the foster parents. Despite the parents’ progress, the caseworker recommended changing the goal for both parents from

2 Three foster

- care workers were involved in this case: Coombs, Brooke Lindley, and Marie Burns. Because Coombs was promoted to supervisor and supervised the workers assigned to the children at issue in this case, she could provide a measure of continuity and familiarity. For this reason, she was the agency representative who testified at th e termination hearing.

3 Mother obtained a personal protection order (PPO) against her abusive ex

- boyfriend, but

refused to have him served with it.- 3

- reunification to termination of parental rights and adoption because it had been over a year since

the children ’s removal and they needed permanency. Nevertheless, the caseworker’s recommendation change d when the parents continued to show progress during the next 90

- day review period. At the December 2015 permanency planning hearing , the caseworker stated that the parents had made “good progress” overall on their treatment plan, and recommended that the goal be changed back to reunification

.

Things slowl y unraveled for the parents in 2016. In January 2016, police arr ested father for choking mother, and in April

, he pled guilty to assault by strangulation and received a

sentence of 23 months’ imprisonment. 4 Father’s earliest release date from prison is F ebruary 27,

2018 , and his maximum release date i s March 29, 2026. The caseworker told the court that , after father went to prison, Hernandez stopped participating in the treatment plan, despite the caseworker asking her to continue. Mother, o n the other hand, continued to progress and the caseworker told the court that mother had resolved the problems that had brought the children into foster care. At the May 2016 review hearing, the caseworker opined that termination of mother’s parental rig hts was not in the best interests of the children because the children had a strong bond to mother and mother had rectified all of her barriers.

Two incidents changed t he caseworker’s opinion. In June 2016

, mother, the children

, mother’s new boyfriend

, a nd mother’s sister were camping. Mother’s sister stole mother’s car

and left mother and the rest of the party stranded at the campsite

. The children’s foster parents had to pick everybody up from th e campsite. The caseworker was concerned that mother’s sister was at the campsite because mother had a PPO against her sister . After the incident, the

caseworker discussed with mother that it was not appropriate for her to have the children around people against whom she had a PPO.

In July 2016, mother was i nvolved in a motor vehicle accident in which she collided with another vehicle in downtown Grand Rapids, Michigan. Mother had both children in the vehicle with her, as well as her sister and her abusive ex

- boyfriend. There was damage to both vehicles.

M other lied to the children and told them that she spoke to the police and that it was okay for her to leave the scene. She then drove the car, with the other occupants, to a friend’s house where she removed the license plate from her vehicle. Mother did not report the inci dent to her

caseworker or the police. The next day, mother was driving her vehicle and the police pulled her

over because they suspected her in the hit and run accident from the night before. Mother appeared intoxicated. Police officers performed a preliminary breath test, which revealed that

mother had a blood alcohol content of 0.16 % . Mother also failed the sobriety tests that police officers gave her. Mother was arrested. At the time, mother’s children were at her apartment

with her sister. The caseworker testified that she considered mother’s sister a risk to the children, even though she never “harmed” them, because of the risk mother’s sister posed to mother and because of mother’s PPO against her sister.

4 While father was out of jail awaiting sentencing, he tested positive for drug use in April, after having tested negative for nearly a year.- 4

- Subsequent ly

, the caseworker recommended that the goal change again from

reunification to termination of both parents’ rights and adoption of the children. She opined that

termination of both parents’ rights at this point was in the best interests of the children becau se more than two years had passed since the children’s removal from mother’s custody

, and the children needed permanency. Accordingly, p etitioner filed a supplemental petition seeking termination of both parents’ rights to the children pursuant to MCL 712 A.19b(3)(c)( i ) and (3)(g).

The trial court held a two

- day termination hearing in December 2016 . Coombs , now a foster

- care supervisor, testified that the children had been in foster c are for a little over two

years. She testified that father’s barriers remained domestic violence, emotional stability, substance abuse, and parenting skills. Coombs opined that father had not rectified the barriers that brought the case about and that it would be at least six to nine months after his earliest release from p rison before the children could be returned to his care. Regarding mother, Coombs

stated that t he children were removed from mother’s custody due to concerns of domestic violence, substance abuse, emotional stability, housing, and parenting skills. Coomb s stated that mother did not rectify the barriers of domestic violence, subs tance abuse, parenting skills, or emotional stability. However, mother did rectify the barrier of housing.

Regarding the children’s best interests, Coombs testified that the children had been in a licensed foster home together since their removal in August 2014. Coombs stated that father and

Hernandez marr ied two days before the hearing , but the agency was not considering Hernandez as a relative for placement because there had n ot been enough time to evaluate her in the two days prior to commencement of the termination hearing. Another reason why the agency was not considering placement of the children with He rnandez was her “very inconsistent” participation with father’s treatment plan. Coombs also noted that, even though there was a bond between father and the children, that bond had “thinned out ” over the course of the case.

Mother also testified at the te rmination hearing, stating that she did not believe that she had issues with domestic violence or with men in general. She also testified that her sister was a “very safe person” for he r and her children to be around, that she did not believe her sister w as a bad influence on her or the children, and that she still saw her sister. Mother did not believe tha t she needed parenting classes, and she admitted to the continued use of marijuana.

Ruling from the bench at the conclusion of the hearing, the trial court found that the conditions that led to adjudication remained unresolved. Mother continued to be involved in domestic violence and to abuse drugs. She failed to visit her children on a regular basis, was intoxicated in their presence, and left them w ith inappropriate caregivers. Similarly, notwithstanding a period of apparent sobriety, father continued to abuse substances and failed to engage profitably in counseling for substance abuse, anger management, and domestic violence.

Father was incarcerat ed at least until February 2018, possibly longer. Considering that Coombs

estimated it would take six to nine months of engagement in a parent

- agency treatment plan after

father’s release before reunification with his children is a possibility , t hat would mean two more years of foster care for children who have already waited a long time for permanence

. Accordingly, the trial court found that clear and convincing evidence established grounds for termination of the parents’ parental rights pursuan t to MCL 712A.19b(3)(c)( i ).- 5

- With regard to MCL 712A.19b(3)(g), the trial court found that father relied on Hernandez’s housing, but had failed to move toward being able to provide proper care and custody for the children otherwise, and that mother had pro ven that she cannot “ provide a safe, stable, non

- neglectful home environment. ” Accordingly, the court found clear and convincing evidence that the parents had failed to provide proper care or custody for the children and that it was unlikely they would be able to do so within a reasonable time, given the children’s ages

. The court rejected father’s suggestion to place the children with Hernandez on the ground of her noncompliance with the treatment plan, opining that the mere fact of father’s marriage to

Hernandez did not automatically qualify her as an appropriate relative placement.

During its best

- interest analysis

, the court discussed at length the parents’ histories, unfavorable psychological evaluations, the children’s ages, parenting techniques, do mestic violence, strength of the bond between the children and the parents, visitation history, parents’ involvement in questionable relationships, compliance with the treatment plans, the children’s wellbeing, the possibility of adoption, and the children ’s need for permanence. The trial court found that there was a preponderance of the evidence to support terminating parental rights of both parents to the children. The court issued a corresponding order, from which mother and father now appeal.

II. ANA LYSIS

In order to terminate parental rights, the trial court must find that at least one of the statutory grounds for termination has been met by clear and convincing evidence. MCL 712A.19b(3); In re VanDalen , 293 Mich App 120, 139; 809 NW2d 412 (2011). The n, the trial court must find by a preponderance of the evidence that termination i s in the best interests of the

children. In re Moss , 301 Mich App 76, 90; 836 NW2d 182 (2013 ) . This Court reviews the trial

court’s determinations for clear error. In re VanDalen , 293 Mich App at 139. “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). Th e interpretation and application of statutes and court rules are reviewed de novo. In

re Sanders , 495 Mich 394, 404; 852 NW2d 524 (2014). We give deference to the “trial court’s special opportunity to judge the credibility of the witness.” In re HRC , 28 6 Mich App at 459.

A

. STATUTORY GROUNDS FO R TERMINATION

Father contends that the trial court erred in finding grounds to terminate his parental rights pursuant to MCL 712A.19b(3)(c)( i )

. We disagree.

A court may terminate a parent’s rights under MCL 712A.19b(3)(c)( i ) if 182 or more days have passed since issuance of an initial dispositional order and the court finds by clear and convincing evidence that “[t]he conditions that led to the adjudication continue to exist and there

is no reasonable likelih ood that the conditions will be rectified within a reasonable time given considering the child’s age.” Father does not dispute that termination occurred more than 182 days after issuance of the initial dispositional order in this case. Rather, he contend s that the only condition that led to adjudication was his homelessness, which he resolved when he moved

in with Hernandez.- 6

- Father’s assertion that housing was his only barrier to reunification is incorrect. Coombs testified at the adjudication hearing t hat , in addition to housing, father’s barriers to reunification

with his children were substance abuse, emotional stability, and parenting skills . Her testimony

at the termination hearing indicated that the se other barriers remained. Concerning substance abuse, Coombs testified that, although father experienced a period of negative drug tests, he tested positive again for mar ijuana in April 2016. With regard to emotional stability, she

testified that father demonstrated a lack of emotional stab ility throughout the case, on one occasion becoming irate and yelling at foster

- care worker Lindley, the children’s attorney, and the foster parents. Moreover, at the time of the hearing, father was serving a prison sentence for assault by strangulation f or choking mother. Finally, Coombs testified that, although petitioner

referred father to multiple parenting classes throug hout this case

, and he did complete one class,

he was discharged from other parenting skills classe s due to nonattendance. Thus, a l though the record shows that father experienced periods of improvement, even progressing to unsupervised visits in December 2015, it also shows that his barriers

— other than perhaps housing

— remained essentially the same from the start of the case until term ination. The conditions that led to father’s adjudication continue to exist, and there was no reasonable likelihood that father would rectify them within a reasonable time, considering the children’s ages. Accordingly, we are not

left with “a definite an d firm conviction that a mistake has been made,” In re HRC , 286 Mich App at 459, with regard to the trial court’s finding that MCL 712A.19b(3)(c)( i ) provides statutory grounds to ter minate father’s parental rights.

Father also contends that the trial court erred in finding clear and convincing evidence to

terminate his parental rights pursuant to MCL 712A.19b(3)(g). 5 Mo ther joins father in this issue. Mother does not argue that the trial court erred in finding that she failed to provide proper care and custody for the chi ldren and that she would not be able to provide such care and custody within a reasonable time, given the children’s ages. Rather, she argues in concert with father that termination was inappropriate because father’s wife coul d have provided proper care and custody of the children at the time of the termination hearing. Mother “extrapolates from” the Michigan Supreme Court’s statement in In re Mason , 486 Mich 142, 163; 782 NW2d 747 (2010), that “a child’s placement with relati ves weighs against termination under MCL 712A.19 b (6)(a), [ 6 ] ” to contend that “if one parent provides an appropriate relative placement for their mutual children, there are no grounds for termination of the second parent’s rights.”

Under MCL 712A.19b(3)(g ), termination is proper when “[t]he 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” within a reasonable time. However, a parent may

5 Having determined that the trial court did not clearly err in finding clear and convincing evidence of statutory grounds to terminate father’s parental rights pursuant to MCL

712 A.19b(3)(c)( i ), we need not address termi nation pursuant to MCL 712A.19b(3)(g). MCL 712A.19b(3); In re Olive/Metts Minors , 297 M ich App 35, 41; 823 NW2d 144 (2012). However,

we will address father’s argument because it is the basis for mother’s sole challenge to the trial court’s termination of her parental rights.

6 This provision is currently numbered MCL 712A.19b(8)(a).- 7

- provide p roper care and custody for the children by voluntarily placing them with an appropriate relative during their incarceration. In re Mason , 486 Mich 143, 163, 165; 782 NW2d 747 (2010). Mason provides that “a child’s placement with relatives weighs against termination

under MCL 712A.19b(6) (a) [now, § 19b(8)(a)] , which expressly establishes that, although grounds allowing the initiation of termination proceedings are present, initiation of termination proceedings is not required when the children are ‘being cared for by relatives.’ ” Id . at 164.

Where the court decides to order the initiation of termination proceedings, children’s placement with relatives is “an explicit factor to consider in determining whether termination [is] in the children’s best interests[.]” Id . The definition of “relative” for purposes of placement includes “stepparent.” MCL 712A.13a(j)

. 7

Respondent parents base their argument regarding termination pursuant to MCL 712A.19b(3)(g) on the erroneous assumption that mere placement of the children with a relative

is sufficient to forestall or halt termination proceedings

. Although the placement of children with a relative allows the court some discretion in ordering initiation of termination proceedings when the children have been in foster care for 15 of the last 22 months, it does not pro hibit the court from proceeding with termination anyway

. MCL 712A.19 b (8)(a). Further, prior relative placement does not factor into the trial court’s determination of whether clear and convincing

evidence establishes a s tatutory ground for termination, b ut is one of several factors the court weighs when determining whether termination of parental rights is in a child’s best interests.

Mason , 486 Mich at 164. In addition, contrary to father and mother’s assumption, the trial court is not obligated to pla ce children with a relative; “the trial court may terminate parental rights in lieu of placement with relatives if it finds termination is in the child’s best interests.” In re

Olive/Metts Minors , 29 7 Mich App 35, 43 ; 823 NW2d 144 (2012)

.

The children in the instant case had been placed with an unrelated foster

- care family for

more than two years when the t rial court authorized petitioner to file a supplemental petition requesting termination

. Since father had not placed the children with a relative p rior to the termination hearing, the court was not obligated to factor relative placement into its best

- interest analysis. Nevertheless, the court specifically addressed the possibility of placing the children with Hernandez, concluding that the facts of this case did not indicate that Hernandez would be an appropriate relative placement for the children. The record supports the trial court’s decision. Hernandez was sporadic with her participation in the treatment plan and with visits, and she stopped pa rticipating in the treatment plan altogether after father ’s incarceration, even though the foster care workers invited and encouraged her to continue participating. Apart from evidence indicating that she had appropriate housing, no record evidence indica ted that Hernandez was in

7 During the termination hearing, Coombs read into the r ecord an older version of the statute that did not include stepparents as relatives for purposes of placement, and father relies on the same version in his brief to this Court. However, 2015 PA 228 added stepparents to the definition of “relatives,” effec tive December 17, 2015, and was in effect when father married Hernandez on December 5, 2016, two days before the termination hearing. Further, it is clear from the record that the trial court did not reject father’s argument on the ground that Hernandez w as not a relative, but because nothing indicated she was an appropriate placement for the children.- 8

- a position in terms of skills, finances, health, or disposition to provide proper care and custody for the children while father was incarcerated for at least another year. Further, for the reasons discussed below, the trial cour t found that termination of the parents’ rights was in the best interests of the children. At “trial court may terminate parental rights in lieu of placement with

relatives if it finds termination is in the child’s best interests.” Olive/Metts Minors , 29 7 Mich App at 43. Accordingly, we cannot say that the trial court clearly erred by finding clear and convincing evidence to terminate both parents’ rights pursuant to MCL 712A.19b(3)(g). Only one ground for termination is required. MCL 712 A .19b(3);

B. B EST INTERESTS OF THE CHILDREN

“If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child’s best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.” MCL 712A.19b(5). In determining the children’s best interests, the trial court may consider the children’s bond to their parents; the parents’ parenting ability; the children’s need for permanency, stability, a nd finality; and the advantages of a foster home over the parent’s

home. Olive/Metts , 297 Mich App at 41

- 42

. The trial court may also consider the children’s potential for adoption. “[A] child’s placement with relatives weighs against termination[.]” I d

. at 43 (quotation marks and citation omitted). “[T]he fact that the children are in the care of a relative at the time of the termination hearing is an explicit factor to consider in determining whether termination was in the children’s best interests[. ]” Id . (quotation marks and citation omitted). “A trial court’s failure to explicitly address whether termination is appropriate in light of the children’s placement with relatives renders the factual record inadequate to make a best

interest determinati on and requires reversal.” Id . (citation omitted).

Father and mother contend that termination of their parental rights was not in the best

interests of the children . Specifically, they argue that the trial court erred in determining that the

children’s well

- being in foster care supported termination because the foster family fraudulently

used a bridge card belonging to mother’s sister, was under investigation for their care of another

foster child in their home , and allowed mother unauthorized visits wit h the children.

Coombs testified at the November 2, 2016 permanency planning hearing that the agency investigated allegations that the foster parents had used a bridge card belonging to mother’s sister and determined the allegations to be true. The infor mation was turned over to the attorney general. However, the attorney general merely required the foster parents to pay the money back to the State and did not file criminal charges against them. The agency also spoke with the foster parents and mother r egarding the unapproved visitation. Coombs testified that she, the CASA, 8
and the parents’ caseworker at the time all felt that there were no concerns regarding the health,

8 Court Appointed Special Advocates are trained volunteers appointed by the court to speak up for the best interests of abused, neglected, or abandoned chil dren. According to their website, CASA volunteers “advocate for safety, permanence and well

- being for children through independent recommendations.” See http://www.michigancasa.org/ (accessed June 19, 2017).- 9

- safety, and welfare of the children due to the incidents. The trial court’s rulin g reveals that the trial court was aware of these allegations and factored them into its best

- interest analysis.

In addition, the trial court considered the parent

- child bond, the parents’ parenting ability; the children’s need for permanency, stability, and finality; and the children’s wellbeing in foster care and the possibility of adoption. The court found the parents to have engaged the children appropriately during supervised parenting visits, but noted that mother tended to make poor

decisions about whom to allow around the children during unsupervised visits. Although the
parent

- child bond was initially strong for both parents, the court heard evidence that it weakened significantly during the last year due to father’s incarceration and mother’s mi ssing parenting

time visits and putting the children in unsafe situations. The court noted that the parents

continue d to engage in domestic violence and questionable, and in mother’s case potentially hazardous, relationships. Regarding the children’s need for permanence, the court noted that they had “ waited a long time. ” The trial court addressed the advantages of the foster home and the potential for adoption

. At almost every hearing, a foster

- care worker testified regardin g the children’s wellbeing while in foster care, stating that the children were doing great in foster care,

we re excelling in school, were up

- to

- date with their medical appointments, and were progressing in their development.

On this record, and mindful o f our deference to the “trial court’s special opportunity to judge the credibility of the witness,” In re HRC , 286 Mich App at 459, w e cannot say that the

trial court clearly erred in weighing the evidence and concluding that termination of the parental

ri ghts of father and mother was in the children’s best interests. The trial court properly considered and analyzed the best interest factors, as well as other record evidence, before reaching a conclusion that is supported by a preponderance of the evidence . Therefore, w e are not “left with a definite and firm conviction that a mistake has been made.” In re HRC , 286 Mich App at 459. Accordingly, we affirm the trial court’s order terminating the parental rights

of father and mother

.

Affirmed.

/s/ David H. Sawyer

/s/ Joel P. Hoekstra /s/ Jane M. Beckering