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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

UNPUBLISHED

In re HERBER, Minors. July 19, 2018

Nos. 341334; 341362

St. Clair Circuit Court

Family Division

LC No. 15-000280-NA

Before: CAMERON, P.J., and JANSEN and O’CONNELL, JJ.

PER CURIAM.

In Docket No. 341334, respondent-mother appeals as of right the trial court’s order 

terminating her parental rights to the minor children, RMH and CAH, pursuant to MCL 

712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (parent unable to 

provide proper care or custody), and (j) (reasonable likelihood child will be harmed if returned). 

We affirm. 

In Docket No. 341362, respondent-father also appeals as of right the trial court’s order 

terminating his parental rights to the minor children, RMH and CAH, pursuant to MCL 

712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (parent unable to 

provide proper care or custody), and (j) (reasonable likelihood child will be harmed if returned). 

We affirm. 

I. RELEVANT FACTS

Respondents’ minor children were removed from their home in 2015, when RMH was 

not yet two years old and CAH was a newborn. The minor children were removed due to 

respondents’ failure to supervise the children. Additionally, RMH had several developmental 

delays and an attachment disorder that made her prone to approach strangers without inhibition. 

Respondents struggled with mental health and poor hygiene, and they relied on the mother of 

respondent-father for housing. 

After the minor children were removed, respondents found full-time employment and 

established their own home. While in foster care, RMH received speech, occupational, and 

physical therapy to address her developmental delays. Sadly, in 2016, CAH was diagnosed with 

liver cancer and eventually received a liver transplant. As a result, CAH became a medically 

fragile child who required a high level of care, including a sanitary living environment because 

he was immunosuppressed from post-transplant medications. He was fed through a tube, and 

required a regimen of medications. 
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During this time, respondents received individual therapy, parenting classes, in-home 

parenting support during parenting time with RMH, and services with Families Together 

Building Solutions (FTBS). However, respondents were unable to provide consistent care for 

RMH during their parenting time. Respondents had difficulty getting RMH to eat, and 

sometimes failed to provide food for her entirely. The service providers offered suggestions, 

which respondents sometimes followed successfully, but respondents failed to consistently 

maintain progress without being prompted. Respondents never learned to feed CAH and 

administer his medications. Although the service providers helped respondents establish 

cleaning schedules to keep the home sanitary for CAH, respondents did not consistently comply 

with the schedules. Respondents also had difficulty maintaining their own personal hygiene in 

accordance with CAH’s needs. Respondents frequently argued with each other over which of 

them should attend to the children’s needs.

Following a termination hearing, the trial court found that clear and convincing evidence 

supported terminating respondents’ parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and 

(j). Further, the trial court found that petitioner had established by a preponderance of the 

evidence that termination was in the best interests of the minor children. Accordingly, the trial 

court terminated respondents’ parental rights to the minor children, and these appeals followed. 

II. DOCKET NO. 341334

In Docket No. 341334, respondent-mother argues that the trial court erred by finding that 

clear and convincing evidence supported statutory grounds for termination of her parental rights. 

Respondent-mother further argues that it was not in the best interest of the minor children to 

terminate her parental rights. We disagree. 

A. STATUTORY GROUNDS

We first address respondent-mother’s argument that clear and convincing evidence did 

not support termination of her parental rights under MCL 712A.19(b)(3)(c)(i), (g), or (j). 

“We review for clear error both the court’s decision that a ground for termination has 

been proven by clear and convincing evidence and, where appropriate, the court’s decision 

regarding the child’s best interest.” In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). 

A finding of fact is clearly erroneous if, after giving special regard to the trial court’s unique and 

special opportunity to observe the witnesses, MCR 2.613(C), we are left with a definite and firm 

conviction that a mistake has been made. In re Moss, 301 Mich App 76, 80; 836 NW2d 182 

(2013). 

“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). Here, the trial court 

found that clear and convincing evidence supported termination of respondent-mother’s parental 

rights pursuant to MCL 712A.19b(3)(c)(i) (conditions that lead to adjudication continue to exist), 

(g) (failure to provide proper care or custody), and (j) (reasonable likelihood the child will be 

harmed if returned to the parent). Respondent-mother contests all three grounds on appeal, and 

each is addressed in turn. 
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MCL 712A.19b(3)(c)(i) provides that the trial court may terminate a respondent’s 

parental rights if it finds, by clear and convincing evidence, the following: 

(c) The parent was a respondent in a proceeding brought under this 

chapter, 182 or more days have elapsed since the issuance of an initial 

dispositional order, and the court, by clear and convincing evidence finds . . . 

(i) The conditions that lead to the adjudication continue to exist and there 

is no reasonable likelihood that the conditions will be rectified within a reasonable 

time considering the child’s age. 

This statutory ground exists when the conditions that brought the children into foster care 

continue to exist despite “time to make changes and the opportunity to take advantage of a 

variety of services.” In re Powers, 244 Mich App 111, 119; 624 NW2d 472 (2000). 

The minor children were removed from respondent-mother’s care due to her 

demonstrated poor parenting skills. Respondent-mother failed to supervise RMH, who was an 

active, impulsive toddler. She unreasonably slept in too late to establish routines for RMH, and 

also failed to maintain adequate hygiene for herself and RMH. Respondent-mother was 

dependent on respondent-father’s mother for housing, although her home was cluttered and dirty. 

Respondents made some progress with the Families First service, by learning to follow a routine 

for RMH’s care, but Families First recommended further in-home services. Removal of RMH 

and CAH was recommended after RMH got out of the house through a window and climbed 

onto the roof. 

After the minor children were removed, respondent-mother did find independent housing 

with respondent-father, as well as full-time employment. However, respondent-mother argues 

that her progress was disrupted by CAH’s medical crisis. Four service providers testified that 

respondent-mother failed to make consistent progress and required repeated reminders to manage 

the children’s needs. Without those reminders, respondent-mother was unable to keep the home 

maintained sanitary as required by CAH’s medical needs, or to assist RMH with eating or 

controlling her outbursts. Respondent-mother downplays RMH’s eating problems, but petitioner 

presented evidence that respondents sometimes failed to provide RMH with any snack or meal 

during parenting time. Respondent-mother emphasizes that RMH was not malnourished, but this 

was because she was regularly fed in her foster home. 

Likewise, respondent-mother was unprepared for CAH’s arrival home. Respondentmother never learned to manage CAH’s feedings through a feeding tube, never learned to 

administer CAH’s medications, and never even opened the feeding tube practice equipment they 

received. Respondent-mother asserts that her psychiatric medication was only briefly interrupted 

for the purpose of making herself available as an organ donor. However, CAH’s transplant 

surgery was in September 2016. Respondent-mother went without a medication review from 

April 2016 to January 2017. Based on the foregoing, we conclude that clear and convincing 

evidence supported termination of respondent-mother’s parental rights under MCL 

712A.19b(3)(c)(i). 
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In finding that termination was appropriate under MCL 712A.19b(3)(c)(i), this Court 

need not address the trial court’s conclusions regarding termination under MCL 712A.19b(3)(g) 

or (j). In re Trejo, 462 Mich at 360. Regardless, we conclude that the trial court did not clearly 

err in finding termination of respondent-mother’s parental rights was appropriate on these 

grounds. MCL 712A.19b(3)(g) provides that a trial court may terminate a respondent’s parental 

rights if the court 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 within a reasonable time 

considering the child’s age.” This Court has held that “[a] parent’s failure to participate in and 

benefit from a service plan is evidence that the parent will not be able to provide a child proper 

care and custody.” In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014). 

As discussed in relation to termination of respondent-mother’s parental rights under MCL 

712A.19b(3)(c)(i), respondent-mother failed to benefit from her treatment plan. That is evidence 

enough that she would not be able to provide proper care and custody for RMH and CAH. 

White, 303 Mich App at 710. Specifically, respondent-mother never learned to meet CAH’s 

level of needs. She never learned to administer his medication or feed him. Respondent-mother 

missed opportunities for medical training. She did not use the practice feeding equipment given 

to her. When she had the opportunity to stay with CAH in the hospital for three days, she stayed 

outside the hospital and arrived too late and left too early to receive medication training. 

Respondent-mother also could not maintain personal cleanliness or home cleanliness in 

accordance with CAH’s need for a sanitary environment. Additionally, respondent-mother 

struggled to parent RMH: respondent-mother was unable to handle RMH’s behavioral issues, 

had difficulty providing and getting RMH to eat nutritious meals, and failed to appreciate that 

RMH had developmental delays that required therapy. Further, respondent-mother and 

respondent-father had difficulty interacting with each other with respect to caring for the minor 

children. Accordingly, it cannot be said that the trial court clearly erred by finding that petitioner 

had presented clear and convincing evidence to support the termination of respondent’s parental 

rights pursuant to MCL 712A.19b(3)(g). 

Finally, MCL 712A.19b(3)(j) provides that the court may terminate a respondent’s 

parental rights if the court finds, by clear and convincing evidence, that “[t]here is a reasonable 

likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if 

he or she is returned to the home of the parent.” A parent’s failure to comply with his or her 

treatment plan is evidence that a child may be harmed if returned to the parent’s home. White, 

303 Mich App at 710-711. 

Again, we conclude that clear and convincing evidence supported termination of 

respondent-mother’s parental rights under MCL 712A.19b(3)(j). Both children have critical 

special needs that would be neglected in respondent-mother’s care. RMH’s emotional and 

developmental needs, and her need for supervision to counter her impulsive tendencies would 

likely not be met in respondent-mother’s home. RMH’s progress in therapy would stall without 

parents who were attentive to the therapists’ recommendations. CAH would be endangered if he 

resided in an unclean home, with caregivers unable to provide his medication and nutrition. The 

evidence clearly showed that respondent-mother was unprepared to provide the advanced level 

of care he requires. Accordingly, the trial court did not clearly err in finding that the evidence 

also supported termination of respondents’ parental rights under MCL 712A.19b(3)(j). 
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We note that respondent-mother argues that petitioner did not address her ability to 

address CAH’s medical needs until the February 2017 permanency planning hearing, leaving her 

only three months to learn to care for CAH in order to prevent termination of her parental rights. 

She argues that petitioner’s abrupt imposition of this requirement constitutes a failure to make 

reasonable efforts toward reunification. Petitioner is obligated “to make reasonable efforts to 

reunify a family before seeking termination of parental rights.” In re Hicks/Brown, 500 Mich 79, 

85-86; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). Whether 

petitioner made reasonable efforts to reunify the family before seeking termination is a question 

of fact, which we review for clear error. See In re Fried, 266 Mich App 535, 542; 702 NW2d 

192 (2005). Failure to make reasonable efforts toward reunification may prevent petitioner from 

establishing statutory grounds for termination. In re Newman, 189 Mich App 61, 65-68; 472 

NW2d 38 (1991). However, “[w]hile the [petitioner] has a responsibility to expend reasonable

efforts to provide services to secure reunification, there exists a commensurate responsibility on 

the part of respondents to participate in the services that are offered.” In re Frey, 297 Mich App 

242, 248; 824 NW2d 569 (2012). 

We reject respondent-mother’s contention that petitioner did not address CAH’s medical 

needs before February 2017, leaving her with only three months to learn how to care for him. 

CAH had transplant surgery in September 2016. Respondent-mother knew or should have 

known that CAH would require special care post-transplant. At the permanency planning 

hearing on December 5, 2016, the trial court and the parties discussed both respondent-mother’s 

and respondent-father’s need for training regarding CAH’s care before they could progress to 

unsupervised visitation. CAH’s needs were not a new issue that unexpectedly arose at the 

February 21, 2017 permanency planning hearing. Furthermore, respondent-mother did not make 

reasonable efforts to learn about CAH’s care. Instead of staying with CAH in the hospital in 

March 2017, she and respondent-father only made day visits, arriving after morning medications 

and leaving before evening medications. Respondent-mother did not attempt to practice feeding 

procedures with the equipment she was given. Under these circumstances, respondent-mother 

cannot reasonably assert that she would have learned to care for CAH if petitioner offered further 

services and allowed her additional time. 

B. BEST INTERESTS

Respondent-mother challenges the trial court’s best interests determination. We find no 

error. 

Whether termination of parental rights is in a child’s best interests must be proven by a 

preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). In 

considering whether termination of parental rights is in a child’s best interests, a court may 

consider a variety of factors. White, 303 Mich App at 713-714. These factors include the 

existence of a bond between the child and the parent, the parent’s ability to parent the child, the 

child’s need for permanency and stability, the advantages of a foster home over the parent’s 

home, the parent’s compliance with his or her service plan, the parent’s visitation history with 

the child, the child’s well-being, and the possibility of adoption. Id.

Petitioner presented ample evidence that respondent-mother failed to prepare herself to 

provide ongoing care for either child. She required repeated reminders in order to manage 
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visitation with RMH, and to maintain basic cleanliness. Respondent-mother argued with 

respondent-father about RMH’s care, instead of following a consistent routine. RMH made 

significant progress in speech therapy after her visitation with respondents ceased. After waiting 

two years for respondents to rehabilitate themselves, RMH should not be required to wait longer 

for permanency. 

Similarly, respondent-mother’s inability to manage basic household and childcare tasks 

would severely jeopardize CAH. Given his young age at the time of removal, CAH never 

formed a bond with either respondent, so termination would not disrupt his life. Considering 

CAH’s medically fragile condition and his need for vigilant care, which respondent-mother was 

unprepared to provide, the trial court did not clearly err in finding that termination of respondentmother’s parental rights was also in his best interests.

III. DOCKET NO. 341362

In Docket No. 341362, respondent-father also challenges termination of his parental 

rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). Although each argument is addressed in 

turn, we cannot conclude any to be meritorious. 

A. STATUTORY GROUNDS

First, respondent-father challenges termination of his parental rights under MCL 

712A.19b(3)(c)(i). However, much of the evidence supporting respondent-mother’s termination 

under this section applies to respondent-father as well. Respondent-father failed to maintain 

personal cleanliness. He failed to consistently provide acceptable care for the children without 

repeated reminders. He failed to help maintain the house at an appropriate level for CAH. He 

failed to comply with his psychiatric medications. Although respondent-father found full-time 

employment, he did not resolve the mental health problems and disorganization that led to the 

children’s placement in foster care. Therefore, termination of his parental rights was appropriate 

under § 19b(3)(c)(i).

In finding that termination was appropriate under MCL 712A.19b(3)(c)(i), this Court 

need not address the trial court’s conclusions regarding termination under MCL 712A.19b(3)(g) 

or (j). Trejo, 462 Mich at 360. Regardless, we conclude that the trial court did not clearly err in 

finding termination of respondent-father’s parental rights was appropriate on these grounds. 

With respect to termination under MCL 712A.19b(3)(g), respondent-father argues that he was 

able to provide proper care for RMH. He states that his problems with maintaining an orderly 

parenting time session occurred because RMH perceived respondents as playmates. He states 

that these problems would have been resolved if RMH was returned to their care. Petitioner’s 

evidence established, however, that respondents distracted RMH during her therapy sessions and 

failed to work with her on her speech therapy homework. In the home, respondents argued about 

who would prepare the meal or take RMH to the bathroom. Respondent-father had to be 

reminded of strategies for getting RMH to sit at the table and focus on eating instead of playing. 

Respondent-father tried one time to prepare a meal that respondent-mother could serve to RMH 

when she returned home from work, but never tried again. Respondent-father portrays RMH as 

a child with no unusual care needs, but this portrayal fails to recognize her developmental delays, 

her emotional extremes, and her attraction to strangers. Respondent-father emphasizes that a 
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family friend highly rated his parenting abilities, but the service providers and his own mother 

testified that he still was not prepared to care for RMH. Regarding CAH, respondent-father did 

not make progress toward learning to manage his care. Respondent-father states that any parent 

would have had difficulty learning to care for this medically fragile child, but respondent-father’s 

lack of effort was unacceptable. Respondent-father failed not only to acquire medical training, 

but also to maintain an adequate level of cleanliness. 

With respect to termination under MCL 712A.19b(3)(j), we reiterate that both minor 

children have critical special needs that would be neglected in respondent-father’s care. RMH’s 

emotional and developmental needs, and her need for supervision to counter her impulsive 

tendencies, would likely not be met in respondent-father’s home. RMH’s progress in therapy 

would stall without parents who were attentive to the therapists’ recommendations. CAH would 

be endangered if he resided in an unclean home, with caregivers unable to provide his 

medication and nutrition. The evidence clearly showed that respondents were unprepared to 

provide the advanced level of care he requires. Accordingly, the trial court did not clearly err in 

finding that the evidence also supported termination of respondents’ parental rights under MCL 

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

B. BEST INTERESTS

Respondent-father also argues that termination of his parental rights was not in the best 

interests of the minor children. We disagree. 

Respondent-father made inconsistent progress at best with regard to RMH’s care. 

Although respondent-father emphasizes that RMH’s best interests should be considered 

separately from CAH’s because her needs are less demanding, RMH has special needs that 

respondent-father was not able to meet. Respondent-father could not remain attentive at her 

therapy sessions. He did not work with her on her speech therapy. He argued with respondentmother about her care, instead of following a consistent routine. RMH made significant progress 

in speech therapy after her visitation with respondents ceased. After waiting two years for 

respondents to rehabilitate themselves, RMH should not be required to wait longer for 

permanency. 

Further, respondent-father essentially concedes that he failed to learn to care for CAH. 

Considering CAH’s medically fragile condition and his need for vigilant care, which neither 

respondent was prepared to provide, the trial court did not clearly err in finding that termination 

of respondent-father’s parental rights was also in his best interests.

Affirmed. 

/s/ Thomas C. Cameron

/s/ Kathleen Jansen

/s/ Peter D. O’Connell