in Re Dh and Bc Minors ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
January 16, 2020
In re DH and BC, Minors.
No. 349071
Calhoun Circuit Court
Family Division
LC No. 2016-003558-NA
Before: CAMERON, P.J., and SHAPIRO and SWARTZLE, JJ.
PER CURIAM.
Respondent-father appeals as of right the order terminating his parental rights to his
minor daughter “BC” under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue
to exist), (c)(ii) (failure to rectify other conditions), and (j) (reasonable likelihood that the child
will be harmed if returned to parent).1 We affirm.
This case arises out of allegations that respondent could not provide proper care or
custody for the minor child, who was born on January 25, 2013. In September 2016, respondent
was convicted of delivering and manufacturing less than 50 grams of controlled substances,
MCL 333.7401, and was sentenced to one to 20 years’ imprisonment. In December 2016,
petitioner filed a petition for removal of the minor child from her mother’s custody and requested
that the trial court assume jurisdiction over the minor child.2 The petition alleged that the minor
child’s mother abused illegal drugs, had an extensive history with child protective services, and
1
The record does not support respondent’s argument that the trial court clearly erred in finding
that petitioner sustained its burden of proof under MCL 712A.19b(3)(g) (failure to provide
proper care and custody). The trial court explicitly declined to terminate respondent’s parental
rights under MCL 712A.19b(3)(g). Therefore, respondent’s claim regarding MCL
712A.19b(3)(g) is not addressed in this opinion.
2
The mother’s parental rights to BC and her other child, DH, were terminated. This appeal deals
exclusively with the termination of respondent’s parental rights to BC.
-1-
demonstrated an inability to benefit from services. On that same day, the trial court issued an ex
parte order to take the minor child into temporary protective custody, and the minor child was
placed with a foster family. Subsequently, another petition was filed. In relevant part, the
petition alleged that respondent was unable to provide proper care and custody to the minor child
because he was in prison. After an adjudication hearing, the trial court assumed jurisdiction over
the minor child and held that the minor child would remain a temporary ward of the state.
Following an April 7, 2017 dispositional hearing, the trial court ordered respondent to comply
with and benefit from the case service plan and held that respondent would be afforded
supervised parenting time upon his release from prison.
After respondent was released from prison in August 2017, respondent lived in a
homeless shelter. In December 2017, he moved into a nursing home because he suffered from
tumors in his brain and spine. In August 2018, respondent moved into a one-bedroom apartment.
However, the minor child was not able to live there because she did not have her own bedroom,
there was not a door to the bedroom, and the bathroom was connected to the bedroom.
Additionally, the landlord indicated that children were not permitted to live in the apartment
complex. The minor child’s mother resided with respondent on an intermittent basis, and she
continuously tested positive for illegal substances. Respondent tested positive for marijuana on
two occasions, and he told his therapist that he stopped taking his prescribed medication and
instead smoked marijuana to manage his pain. Because respondent stopped taking his
prescription medication, the case worker was concerned that respondent was selling the
medication. During the proceeding, the minor child’s mother reported domestic violence issues
between herself and respondent.
In October 2018, petitioner filed a supplemental petition. The supplemental petition
sought termination of respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (c)(ii),
(g) (failure to provide proper care and custody), and (j). After the termination hearing, the trial
court held that it was proper to terminate respondent’s parental rights pursuant to MCL
712A.19b(3)(c)(i), (c)(ii), and (j) and that termination would be in the minor child’s best
interests. This appeal followed.
Respondent argues on appeal that the trial court erred in finding that statutory grounds
existed to terminate his parental rights. “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). “We review the trial court’s determination for clear error.” Id. “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) (quotation marks omitted).
We conclude that the trial court did not clearly err in finding that petitioner established,
by clear and convincing evidence, a statutory ground for termination under MCL
712A.19b(3)(c)(i). Termination is proper under MCL 712A.19b(3)(c)(i) when 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 [t]he conditions that led 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 Court has previously held that termination
-2-
was proper under MCL 712A.19b(3)(c)(i) where “the totality of the evidence amply support[ed]
that [the respondent] had not accomplished any meaningful change in the conditions” that led to
adjudication. In re Williams, 286 Mich. App. 253, 272; 779 NW2d 286 (2009).
At the time of termination in this case, “182 or more days” had “elapsed since the
issuance of [the] initial dispositional order[.]” See MCL 712A.19b(3)(c)(i). The conditions that
led to adjudication were respondent’s inability to provide proper care and custody to the minor
child because he was imprisoned. After respondent was released from prison in August 2017,
respondent resided at a homeless shelter. Thereafter, respondent entered a nursing home and
requested that his parenting time be temporarily suspended because of his health. After
respondent obtained an apartment in August 2018, he was still unable to provide the minor child
with proper care and custody because he only had a one-bedroom apartment that was not
appropriate for the minor child and the landlord did not permit children to live in the apartment
complex. Despite being told that his housing was not appropriate for the minor child, respondent
continued to live in the one-bedroom apartment through the date of termination. Respondent
also allowed the minor child’s mother, who was abusing substances and engaging in domestic
violence with him, to live there during the proceeding. The record supports that respondent was
unable to obtain a two-bedroom apartment because of his finances and criminal history.
Respondent’s psychological evaluation revealed that respondent had a tendency to get caught up
in his own concerns and lose sight of the feelings of others, which could create problems when
one is caring for a child. Overall, the psychologist gave respondent a poor prognosis for taking
care of the minor child “completely on his own.”
The totality of the evidence amply supports that respondent had not accomplished any
meaningful change in the conditions that led to adjudication. See In re Williams, 286 Mich. App.
at 272. Although respondent argued below that he would have been able to rectify the conditions
if given additional time, the record clearly establishes that there was no reasonable likelihood
that the conditions that led to adjudication would “be rectified within a reasonable time
considering the child’s age.” See MCL 712A.19b(3)(c)(i). Respondent had demonstrated little
progress with respect to being able to provide proper care and custody to the minor child at the
time of the April 2019 termination. Moreover, at the time of termination, the six-year-old minor
child had been in care for more than two years, and respondent had been out of prison for more
than 19 months. The trial court’s finding that termination was proper under MCL
712A.19b(3)(c)(i) does not leave us with a definite and firm conviction that a mistake has been
made.
Because we have concluded that at least one ground for termination existed, we need not
consider the additional grounds upon which the trial court based its decision. See In re HRC,
286 Mich. App. at 461. Nevertheless, we have reviewed those grounds and conclude that
termination was appropriate under MCL 712A.19b(3)(c)(ii) and (j).
Affirmed.
/s/ Thomas C. Cameron
/s/ Douglas B. Shapiro
/s/ Brock A. Swartzle
-3-