Opinion
No. 336684
07-18-2017
In re A. Middleton, Minor.
UNPUBLISHED Kalamazoo Circuit Court Family Division
LC No. 2016-000476-NA Before: SAWYER, P.J., and HOEKSTRA and BECKERING, JJ. PER CURIAM.
Respondent-father appeals as of right the January 4, 2017 order terminating his parental rights to the minor child AM under MCL 712A.19b(3)(g) (failure to provide proper care and custody) and (h) (parent incarcerated). We affirm.
Respondent was incarcerated when AM was born. AM was removed from the mother's care on October 7, 2016, after the mother tested positive for illegal drugs. The trial court terminated both respondent's and the mother's parental rights on January 4, 2017. Respondent remained incarcerated throughout the termination proceedings.
First, respondent argues that the trial court erred in finding statutory grounds for termination. We disagree.
"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). This Court reviews "the trial court's findings of fact under the clearly erroneous standard." In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009); see also MCR 3.977(K). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004). This Court is "obliged to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error." In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009).
The trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(g) and (h). If this Court concludes that the trial court did not clearly err in finding one statutory ground for termination, this Court does not need to address the additional grounds. In re HRC, 286 Mich App at 461.
Respondent does not dispute the trial court's finding that termination under MCL 712A.19b(3)(g) was proper. Because termination of parental rights need only be supported by a single statutory ground, In re HRC, 286 Mich App at 461, respondent's failure to challenge the trial court's finding with respect to MCL 712A.19b(3)(g) precludes appellate relief with respect to his challenge to the existence of a statutory ground for termination. See In re JS & SM, 231 Mich App 92, 98-99; 585 NW2d 326 (1999), overruled in part on other grounds by In re Trejo, 462 Mich 341, 353; 612 NW2d 407 (2000) (stating that when a respondent does not dispute the trial court's finding of a statutory ground for termination, this Court may assume that the trial court did not clearly err in finding clear and convincing evidence that termination under the undisputed ground was proper). As a result, the trial court did not clearly err in finding that statutory grounds supported the termination of respondent's parental rights.
Next, respondent contends that the trial court's conclusion that termination was in the child's best interests was clearly erroneous. We disagree.
"[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). This Court reviews the trial court's "decision regarding the child's best interest" for clear error. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012).
"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 terminate parental rights." In re Olive/Metts Minors, 297 Mich App at 40. When the trial court considers a child's best interests, the focus must be on the child and not the parent. In re Moss, 301 Mich App at 87. "The trial court should weigh all the evidence available to determine the child's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). "In deciding whether termination is in the child's best interests, the court may consider 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 over the parent's home." In re Olive/Metts Minors, 297 Mich App at 41-42 (citations omitted). A trial court can also consider the length of time the child "was in foster care or placed with relatives[,]" and whether it was likely that "the child could be returned to [the parent's] home within the foreseeable future, if at all." In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012).
The foster-care worker with the Department of Health and Human Services (DHHS) testified that termination was in AM's best interests because of the length of time she would be in care due to respondent's incarceration. The foster-care worker investigated placing AM with family members. However, AM's maternal aunt appeared to be uninterested in taking custody of AM, and AM's paternal grandmother did not have suitable housing. Finally, although the trial court commended respondent for participating in classes in prison, it found that termination was in AM's best interests because Michigan courts have repeatedly emphasized that "children have a right to a stable and decent environment in which to mature." Based on this evidence, the trial court did not clearly err in finding that termination was in AM's best interests. In re Olive/Metts Minors, 297 Mich App at 40.
Finally, respondent asserts that the DHHS failed to make reasonable efforts to reunite respondent with AM. We disagree.
Respondent did not argue in the trial court that the DHHS failed to make reasonable efforts at reunification because the DHHS did not facilitate visitations between respondent and AM. As a result, this issue is unpreserved. See In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000) (stating that "[t]he time for asserting the need for accommodation in services is when the court adopts a service plan, not at the time of a dispositional hearing to terminate parental rights").
This Court reviews unpreserved issues for "plain error affecting substantial rights." In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." In re VanDalen, 293 Mich App at 135 (quotation marks and citations omitted). Whether reasonable efforts for reunification were made is reviewed for clear error. In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005).
"When a child is removed from a parent's custody, the agency charged with the care of the child is required to report to the trial court the efforts made to rectify the conditions that led to the removal of the child." In re Plump, 294 Mich App 270, 273; 817 NW2d 119 (2011). Therefore, "a [trial] court is not required to terminate parental rights if the State has not provided to the family of the child . . . such services as the State deems necessary for the safe return of the child to the child's home." In re Rood, 483 Mich 73, 105; 763 NW2d 587 (2009) (quotation marks and citation omitted). However, "[w]hile the [DHHS] 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 at 248.
Here, respondent argues that the DHHS failed to make reasonable efforts to reunite him with AM because it did not facilitate visitations with him in prison. However, the foster-care worker testified at the termination hearing that the two-hour and 30-minute drive was too difficult to make with a one-year-old child. In addition, the DHHS provided services, including drug screening and parenting time, to the mother to promote reunification. However, the mother failed to participate in the services offered to her. Finally, the DHHS investigated relative placement for AM. The trial court adjourned the termination hearing to give the foster-care worker additional time to investigate placement with AM's maternal aunt. However, the aunt never responded to the foster-care worker's phone calls or visits. Further, the foster-care worker investigated respondent's relatives for placement. However, AM's paternal grandmother did not have suitable housing. The foster-care worker also testified that there were background check issues that made it impossible to place AM with respondent's relatives. Based on this evidence, we believe that the trial court did not clearly err in finding that the DHHS made reasonable efforts to secure reunification. In re Fried, 266 Mich App at 542-543. In addition, we do not believe that visitations with respondent in prison would have altered the outcome of the proceedings. Thus, respondent has not shown plain error, and he is not entitled to relief. In re Utrera, 281 Mich App at 8.
Affirmed.
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
/s/ Jane M. Beckering