-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re L. COSELMAN, Minor. February 28, 2017

No. 333536 Livingston Circuit Court Family Division LC No. 14-013254-NA

Before: H OEKSTRA , P.J., and S AAD and R IORDAN , JJ

P ER C URIAM

. Respondent-father appeals as of right the trial court order te rminating his parental rights to the minor child unde r MCL 712A.19b(3)(c)( i ), (g), and (j). We affirm.

I. FACTUAL BACKGROUND

Respondent and his former girlfriend, the child’s mother, had an extensive history of substance abuse and illegal activity. The child’s mother becam e pregnant while the couple continued to struggle with significant drug addictions. Soon a fterward, however, the child’s mother was incarcerated, and re spondent sought drug treatment, beginning sobriety in June 2014 and subsequently living in a thr ee-quarter house with other rec overing addicts.

In November 2014, the minor child was born while his mother re mained incarcerated. 1 Initially, the child was placed in the custody of his maternal grandparents, but he was removed and placed in foster care when he was five weeks old. At the t ime, respondent was known to be the putative father. Respondent later signed an affidavit of p arentage in February 2015.

In February 2015, petitioner, the Department of Health and Hum an Services (“DHHS”), filed an amended petition requesting that the trial court exerc ise jurisdiction over the child based on respondent’s initial failure to sign an affidavit of parenta ge or establish paternity; the fact that respondent was currently living in transitional housing; respon dent’s history of substance abuse; respondent’s criminal history; and the fact that respondent had reported that he was unable to

1 In an earlier order, the trial court terminated the parental r ights of the child’s mother. This Court affirmed that decision in In re Coselman , unpublished opinion per curiam of the Court of Appeals, issued October 20, 2015 (Docket No. 326497).-2- care for the child at that time. The trial court accepted resp ondent’s plea to the allegations in the petition and exercised jurisdiction over the child pursuant to MCL 712A.2(b). Later, the trial court ordered supervised paren ting time and adopted the parent- agency treatment plan, which required that respondent participa te in parenting classes, amon g other things.

Over the next year, respondent c onsistently participated in su pervised parenting time with the child, canceling only a few visits. He also remained extre mely active in programs and services aimed at strengtheni ng his sobriety, and he never relapsed.

However, respondent did not cons istently bring essential suppl ies—including a diaper bag with necessities for the child’s care, age-appropriate food , and a stroller—to his visits with the child until December 2015, believing it was unnecessary to do so if the foster parents were providing those items or if those items were available at the v isit locations. Additionally, although he was instructed to pur chase a crib and car seat in o rder to demonstrate that he was prepared to care for the child in his own home, respondent did not obtain these items until May 2016, after the first day of the t ermination hearing. He expre ssed confusion or a lack of initiative throughout the proceedings with reg ard to the child’s medical h istory and his role in participating in the child’s medical care. Additionally, despite the clear r equirement under the parent-agency agreement that he participate in parenting classes, respondent did not participate in structured parenting classes until early 2016.

In December 2015, respondent moved from the three-quarter hous e where he had been living into a sobriety-focused home with other former addicts a nd transitional housing managers. Although the home had a spare bedroom that was intended for the minor child, respondent never gave his caseworker the names and birthdates of the other men l iving in the home so that petitioner could perform backgr ound checks and approve the resi dence as a suitable home for the child.

In January 2016, respondent left a full-time job at the Univer sity of Michigan, which was scheduled to end in a few months, in order to pursue a full-tim e career as a personal trainer. However, by March 2016, he had n ot passed the cer tification exa m and was only making a few hundred dollars per month. Throughout the proceedings, respond ent continued to work toward his goal of becoming a personal tr ainer and to take online coll ege courses, but he never secured additional employment. Instead, he relied on student loans and supplemental financial assistance from his mother in order to m eet his monthly expenses.

In March 2016, respondent moved into an apartment with his gir lfriend, who had been very involved during the child protective proceedings and was w illing to assist with caring for the minor child. However, the apartment was under a sublease that was set to expire in August 2016, at which time the rent would increase substantially.

On March 17, 2016, petitioner filed a supplemental petition se eking termination of respondent’s parental rights under MCL 712A.19b(3)(c)( i ), (g), and (j). In April and May 2016, the referee conducted a six-day te rmination hearing that began on April 29, 2016, and concluded on May 26, 2016.-3- In the meantime, the DHHS caseworker discovered a record indic ating that the child’s mother had an active Hepatitis C infection while she was pregna nt with the child. Testing in May 2016 revealed that the minor child had an active Hepatitis C infection. During the termination hearing, respondent a cknowledged that he was tested for Hepatitis C in 2014 and found to have reactive Hepatitis C antibodies, and that he had been tested again in January 2016. He explained that he did not mention this information to the ca seworker because it was his understanding that Hepatitis C c ould not be contracted through a male. He could not recall if he had discussed any of this with the foster parents, and the fost er father testified that he was not aware that the child had been e xposed to Hepatitis C until the caseworker contacted him in May 2016. Respondent denied that he was previously aware that the child’s mother had Hepatitis C, but the mother testified at the termination hearing that she, a t the least, informed respondent by phone while she was incarcerated that she had an active Hepatit is C infection, believing that it was important for him to know tha t information if he would be c aring for the minor child.

On June 9, 2016, the referee issued a 25-page, single-spaced o pinion, concluding that petitioner had estab lished, by clear and c onvincing evidence, astatutory basis for termination of respondent’s parental righ ts under MCL 712A.19b(3)(c)( i ), (g), and (j), and that termination was in the best interests of the child. On June 10, 2016, the tria l court entered an order adopting the referee’s recommendation and termi nating respondent’s parental rights.

II. STATUTORY GROUNDS

Respondent argues that the trial court erred in finding that t he statutory grounds for termination were establishe d by clear and convincing evidence. We disagree.

A. STANDARD OF REVIEW

In order to terminate parental rights, the trial court must fin d that a statutory basis for termination under MCL 712A.19b(3) h as been established by clear and convincing evidence. In re Moss , 301 Mich App 76, 80; 836 NW2d 182 (2013).

Evidence is clear and convincing when it produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegat ions sought to be established, evidence so clear, direct and weight y and convinci ng as to enable [the factfinder] to come to a clear conviction, without hesitancy, o f the truth of the precise facts in issue. [ In re Martin , 450 Mich 204, 227; 538 NW2d 399 (1995) (quotation marks and citation omitted; alteration in original). ]

“This Court reviews for clear error the trial court’s factual f indings and ultimate determinations on the statutory grounds for termination.” In re White , 303 Mich App 701, 709; 846 NW2d 61 (2014). “A finding is clearly erroneous [if] although there is evidence to support it, the reviewing court on the entire evidence is left with the definit e and firm conviction that a mistake has been made.” In re Mason , 486 Mich 142, 152; 782 NW2d 747 (2010) (quotation marks and citation omitted; alteration in original). We must give due re gard “to the special opportunity of the trial court to judge the credibility of the witnesses who a ppeared before it.” In re Ellis , 294 Mich App 30, 33; 817 NW2d 111 (2011).

B. ANALYSIS-4- As an initial matter, it is important to note that both partie s presented an unusually large amount of testimony and documentary evidence during the six-day termination hearing in this case. Although many aspects of the testimony provided by respo ndent’s and petitioner’s witnesses were consistent, significant portions of the testimon y were not, especially in terms of whether respondent had demonstrat ed that he was prepared to car e for the child and whether respondent had shown that he was willing and able to prioritize the child’s needs over his own. As a result, given the conflicting evidence in the record, the trial court was necessarily required to make credibility determinations in order to determine whethe r petitioner had established a statutory basis for termination by clear and convincing evidenc e. Correspondingly, the referee’s lengthy opinion, adopted by the tr ial court, contains numerous implicit credibility determinations that directly shaped the court’ s decision in this case. Theref ore, it is apparent that the outcome of this case was direct ly dependent on the trial court’s opportuni ty to observe the witnesses before it and make critical credibility determinations. MCR 2.613(C); In re Miller , 433 Mich 331, 337; 445 NW2d 161 (1989). 2 As the Michigan Supreme Court remarked in In re Miller , 433 Mich at 337, “The deference required by MCR 2.613(C) can make a critica l difference in difficult cases such as the one before us. In c ontrast to the reviewing court, the trier of fact has the advantage of being able to consider the demeanor of the witnesses in determi ning how much weight and credibility to accord their t estimony.” It is with this founda tion that we review the trial court’s findings and conclusions in this case.

The trial court terminated respondent’s parental rights under M CL 712A.19b(3)(c)( i ), (g), and (j), which permit termination under the following circumsta nces:
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of aninitial dispositional order, and the c ourt, by clear and convincing evi dence, finds either of the following:

( i ) The conditions that led to the a djudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.

* * *

(g) The parent, without regard to intent, fails to provide pro per care or custody for the child and there is no reasonable expectation th at the parent will be able to provide proper care and custody within a reasonable tim e considering the child’s age.

* * *

2 It is especially noteworthy that the referee who presided over the six-day terminating hearing also presided over allbut one of the hearings in this case. See In re Miller , 433 Mich at 337-338.-5- (j) There is a reasonable likelihood, based on the conduct or the capacity of the child’s parent, that the child will be harmed if he or s he is returned to the home of the parent.

First, we conclude that the evidence supported termination of respondent’s parental rights under MCL 712A.19b(3)(g). Compliance with a treatment plan is evidence of a parent’s ability to provide proper care and custody for a child. In re JK , 468 Mich 202, 214; 661 NW2d 216 (2003). However, “it is not e nough to merely go through the mo tions; a parent must benefit from the services offered so that he or she can improve parenting sk ills to the point where the children would no longer be at risk in the parent’s custody.” In re Gazella , 264 Mich App 668, 676; 692 NW2d 708 (2005), superseded in part on other grounds as stated in In re Hansen , 285 Mich App 158, 163; 774 NW2d 698 (2009), vacated on other grounds 486 Mic h 1037 (2010). Here, it is apparent that respondent was tremendously dedicated to programs and services targeted at maintaining his sobriety and that he sustained a lasting benefi t from these services, but the record supports the trial court’s finding that he did not benefit to t he same extent from parenting-related services. While we recognize the importance of maintaining sob riety in order to safely and effectively care for a child, the trial court did not clearly e rr in concluding that the record shows that respondent failed to demonstrate a simultaneous commitment to providing proper care and custody for the child.

Given the trial court’s credibility determinations, the record confirms that respondent resisted bringing necessary supplies to parenting time visits d espite receiving written and verbal directions to do so. He reasoned that it was illogical to brin g duplicate items if supplies were provided by the foster family or a vailable at the site. Likewi se, he resisted purchasing items such as a crib and a car seat because he did not believe that doing so was necessary until he was granted unsupervised parenting time. As the trial court noted, instead of purchasing these required items, respondent chose to purchase items like an $80 purse for his girlfriend and a couch on a monthly payment plan f or their new apartment, which were purchases outside of their means based on their monthly budget.

Furthermore, the trial court was especially troubled by respond ent’s claims that he was confused about nearly every aspect of the child protective proc eedings, including the expectations of the parent-agency treatment plan, even though r espondent indicated his ability to succeed without “hands-on direction” in college and employment settings. The record supports the trial court’s finding that respondent did not have a cognit ive impairment or any other issues that would impede his understanding of the expectations in this case, or prevent him from understanding the gravity of the situation, such that responden t’s failure to obtain and bring the requisite supplies demonstrated that he would not be prepared t o provide proper ca re and custody of the child in a reasonable time.

In addition, respondent did not h ave stable housing or an inco me sufficient to support a child, and he did not demonstrate that he could achieve either of those things within a reasonable time. Although respondent ultimately secured housing in which the child could live in March 2016, when he moved into a new apartment with his girlfriend, t he sublease was due to expire in August 2016. Respondent did not demonstrate with any certainty when his income would increase, and he failed to show that he and his girlfriend woul d be able to maintain their apartment at the increased rental rate. Likewise, the trial co urt recognized that respondent’s-6- current housing may have been suitable for the child, but it em phasized that the pr imary issue in this case was respondent’s failure to demonstrate any permanenc e or enduring stability. Moreover, instead of taking steps to secure sufficient employme nt to support the child as soon as possible, respondent prioritized h is interest in pursuing a car eer as a personal trainer—which had proven not to generate sufficient income in the immediate futur e, despite its future potential— and taking college courses. Given the unwillingness of respond ent’s mother to provide assistance to respondent earlier in the proceedings, the trial court expressed significant doubts regarding her newly stated wil lingness, during the termination hearing, to supplement respondent’s income by as much as $1,300 per month. As the court noted, reliance on public or familial support to maintain housing does not, by itself, const itute grounds for termination, but the evidence in this case did notshow that respondent, either alone or with the assistance of his girlfriend or his mother, had the ability to continue maintaini ng appropriate housing for the child or provide for all of his needs.

At the time of the termination hearing, the child had been in f oster care for nearly 18 months. The statutory framework does not require the child to wait indefinitely for respondent to be prepared to provide appropriate care. Thus, we conclude tha t the trial court did not clearly err in finding that clear and convincing evidence supported termina tion of respondent’s parental rights under MCL 712A.19b(3)(g).

Next, to demonstrate a statutory basis for termination under M CL 712A.19b(3)(j), the likelihood of harm may be physical or emotional harm, including neglect. See In re Hudson , 294 Mich App 261, 268; 817 NW2d 115 (2011). The evidence showed th at respondent was extremely committed to his sobriety throughout the course of th e proceedings, but it did not show that he was prepared to prioritize the child’s needs over his own. Likewise, despite numerous discussions with agency workers and his attendance at parenting classes, respondent admitted that he did not understand the need for him to come to parenting time visits prepared to care for the child’s physical needs. Notably, he expressed hes itation himself regarding whether he was able to care for the child independently. Consistent wi th this stated hesitation, the trial court noted the numerous instances in respondent’s testimony wh en he expressed an inability or reluctance to take the initiative to determine what his child’s needs were and how to provide for the child on his own, even though he had demonstrated an abilit y to work independently and successfully at previous jobs with out hand-holding or constant supervision and an ability to complete college-level coursework.

Respondent also demonstrated that he did not know the child’s m edical history—despite the child’s unique medical issues—and that he preferred to defe r to the foster parents when the child received medical treatment. Further, respondent failed t o report to the agency workers assisting him, the foster parents, or the child’s doctor that h e had tested positive for reactive Hepatitis C antibodies, and that the child’s mother had tested positive for Hepatitis C, 3

3 The referee implicitly credited the biological mother’s testim ony and rejected respondent’s claims, finding, “He knew the child’s biological mother had tes ted positive for Hepatitis C[,] but did not mention this at the sick v isit or emergency room visits he attended.”-7- demonstrating significant concer ns about respondent’s ability t o recognize and attend to the child’s medical issues and physical well-being in the future.

Given the trial court’s credibility determinations, the evidenc e established that, at a minimum, the child would be at a risk of harm from neglect if h e were placed in respondent’s custody. Thus, we conclude that clear and convincing evidence supported termination of respondent’s parental right s under MCL 712A.19b(3)(j). 4

III. BEST INTERESTS

Respondent contends that the tria l court clearly erred in dete rmining that termination of his parental rights wa s in the child’s bes t interests. We disa gree.

A. STANDARD OF REVIE W AND APPLICABLE LAW

We review for clear error a trial court’s best-interest determi nation. In re White , 303 Mich App at 713, citing MCR 3.977(K). Pursuant to MCL 712A.19b (5), “[t]he trial court must order the parent’s rights termin ated if the [petitioner] has es tablished a statutory ground for termination by clear and convincing evidence and it finds from a preponderance of the evidence on the whole record that termination is in the child[’s] best i nterests.” In re White , 303 Mich App at 713 (footnotes omitted). When a court makes a best-inte rest determination, it should weigh all available evidence, id ., and its focus should be on the child rather than the parent, In re Moss , 301 Mich App at 86-87.

To determine whether termination of parental rights is in a chi ld’s best interests, the court should consider a wide variety of factors that may in clude “the child’s bond to the parent, the parent’s parenting ability, the child’s need for permanency, stability, and finality, and the advantages of a foster home ov er the parent’s home.” The trial court may also consider a parent’s history of domestic violence, the parent’s compliance with his or her case service plan, the parent’s visitation history with the child, the ch ildren’s well-being while in care , and the possibility of adoption. [ In re White , 303 Mich App at 713-714 (footnotes omitted); see also In re Olive/Metts Minors , 297 Mich App 35, 41-42; 823 NW2d 144 (2012).]

B. ANALYSIS

The evidence showed that at the time of the termination hearin g, the child had lived with the same foster parents since th e age of five weeks; that the f oster parents had provided excellent care for the child, even in the face of significant medical iss ues; and that the child was strongly bonded to them. Oppositely, the child has never lived with res pondent and never participated in

4 Because “[o]nly one statutory ground need be established by cl ear and convincing evidence to terminate a respondent’s parental rights,” In re Ellis , 294 Mich App at 32, we need not separately consider whether the trial court properly terminated respondent ’s parental rights under MCL 712A.19b(3)(c)( i ).-8- overnight or unsupervised visits with him. Although the record shows that respondent’s visits with the child were consistently appropriate and positive, and that respondent had developed a bond with the child, the witnes ses’ testimony clearly indicates that the child shared a stronger bond with the foster parents.

With regard to respondent’s parenting skills, the trial court c redited the testimony of agency workers who noted that res pondent’s protracted reluctanc e to consistently participate in parenting classes or obtain th e requisite supplies indicated an inability or lack of preparedness to care for the child outside of th e structured envi ronment of sup ervised visits. Likewise, the record supports the trial court’s finding that respondent failed to de monstrate a willingness to seek out or learn basic information crucial to the child’s well-being, i ncluding his medical history and the name and address of the child’s pediatrician, even though he ha d attended at least one visit to the pediatrician’s office and a visit to the emergency room when th e child was exhibiting breathing difficulties.

Respondent undoubtedly expressed g ood intentions and a strong i nterest in being a father throughout the proceedings, but the evidence in the record rais es significant doubts with regard to respondent’s ability or willi ngness to properly care for the child without direct oversight and prompting. Further, the evidence established that stability an d permanence were imperative at this point in the child’s life, and the trial court properly co ncluded that the child deserved permanence and stability, and could not be expected to wait an uncertain length of time for respondent to develop the motivation and skills necessary to be a parent.

“After [a parent’s] children have come within the jurisdiction of the family court, [the] parent, whether disabled or not, must demonstrate that [he or] she can meet their basic needs before they will be returned to [his or] her care. If a parent cannot or will not meet [his or] her irreducible minimum parental res ponsibilities, the needs of the child must prevail over the needs of the parent.” In re Terry , 240 Mich App 14, 28; 610 NW2d 563 (2000).

The trial court did not clearly err in finding by a preponder ance of the evidence that termination of respondent’s parent al rights was in the child’s best interests.

IV. CONCLUSION

Although we applaud respondent’s efforts to achieve and mainta in sobriety, we conclude that respondent has failed to establish that the trial court cl early erred in finding that a statutory basis for termination of his parental rights had been establish ed by clear and convincing evidence, and that termination w as in the best interests of the child.

Affirmed.

/s/ Joel P. Hoekstra /s/ Henry William Saad /s/ Michael J. Riordan