in Re J Earls Minor ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re J. EARLS, Minor. January 19, 2016
No. 328198
Berrien Circuit Court
Family Division
LC No. 2013-000102-NA
Before: BOONSTRA, P.J., and SAWYER and MARKEY, JJ.
PER CURIAM.
Respondent mother appeals as of right the trial court order terminating her parental rights
to the minor child under MCL 712A.19b(3)(c)(i) (conditions that led to the adjudication continue
to exist) and (g) (failure to provide proper care and custody). We affirm.
Respondent challenges the trial court’s findings regarding the statutory grounds for
termination and the minor child’s best interests. To terminate parental rights, a trial court must
find the existence of a statutory ground for termination in MCL 712A.19b has been met by clear
and convincing evidence. In re McIntyre, 192 Mich. App. 47, 50; 480 NW2d 293 (1991). After a
trial court has established a statutory ground for termination by clear and convincing evidence,
the trial court shall order termination of parental rights if it finds by a preponderance of the
evidence “that termination of parental rights is in the child’s best interests[.]” MCL
712A.19b(5); see In re Moss, 301 Mich. App. 76, 90; 836 NW2d 182 (2013). A trial court’s
factual findings in terminating parental rights, including a finding that a ground for termination
has been established and that termination is in a child’s best interests, are reviewed for clear
error. MCR 3.977(K); In re Trejo Minors, 462 Mich. 341, 356-357; 612 NW2d 407 (2000).
Termination is proper under MCL 712A.19b(3)(g) where a “parent, without regard to
intent, fails to provide proper care or custody for the child and there is no reasonable likelihood
that the parent will be able to provide proper care and custody within a reasonable time
considering the child’s age.” Here, respondent clearly failed to provide proper care and custody
for the two-year old child. The child was found wandering in the parking lot of a motel where
respondent went to a party; respondent was unconscious from a heroin overdose at the time. At
the time, respondent and the child were residing in a different motel with respondent’s mother
and brother. After the child’s removal, respondent initially made progress regarding her
substance abuse, and she participated in all of the substance abuse services available to her.
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However, in September 2014, respondent relapsed into drug and alcohol use, and on October 15,
2014, respondent overdosed on heroin. Additionally, respondent was incarcerated1 at the time of
the termination hearing because she violated her probation by inappropriately using prescription
Tramadol. At times, respondent tested positive for Tramadol in her system at levels
approximately 12 times the maximum amount she was supposed to have in her system. Yet,
respondent denied that she inappropriately used the drug. Accordingly, the evidence before the
trial court indicated that respondent continued to struggle with the inappropriate use of opiates.
Additionally, despite housing assistance and support, respondent still had not adequately
provided housing with appropriate bedroom space for the minor child. A trial court may rely on
a respondent’s history of failing to provide proper care and custody in finding that there was no
reasonable expectation that the respondent would be able to provide proper care and custody
within a reasonable time. In re Archer, 277 Mich. App. 71, 75-76; 744 NW2d 1 (2007). Given
the minor child’s age, the amount of time she had already spent in foster care, and respondent’s
history of failing to address her substance abuse and lack of appropriate housing, the trial court
did not clearly err in finding that there was no reasonable expectation that respondent would be
able to provide proper care and custody within a reasonable time considering the child’s age.
The trial court did not clearly err in finding a statutory ground for termination under MCL
712A.19b(3)(g). MCR 3.977(K); In re Trejo Minors, 462 Mich. at 356-357.
Because only one statutory ground for termination must be established, In re Trejo
Minors, 462 Mich. at 360, and we affirm termination under (g), we do not address MCL
712A.19b(3)(c)(i).
Regarding the minor child’s best interests, respondent’s history, the minor child’s need
for permanency and stability, and the advantages of the child’s foster home all weighed in favor
of a finding that termination was in the child’s best interests. In re Olive/Metts Minors, 297
Mich. App. 35, 41-42; 823 NW2d 144 (2012); In re Jones, 286 Mich. App. 126, 131; 777 NW2d
728 (2009). The trial court did not clearly err in finding that termination of respondent’s parental
rights was in the minor child’s best interests. MCR 3.977(K); In re Trejo Minors, 462 Mich. at
356-357.
Affirmed.
/s/ Mark T. Boonstra
/s/ David H. Sawyer
/s/ Jane E. Markey
1
Respondent correctly notes that the Michigan Supreme Court held in In re Mason, 486 Mich.
142, 160; 782 NW2d 747 (2010), that “[t]he mere present inability to personally care for one's
children as a result of incarceration does not constitute grounds for termination.” However, the
trial court did not rely solely on respondent’s incarceration in terminating her parental rights.
Respondent does not demonstrate any error in the trial court’s findings regarding the statutory
grounds for termination under Mason.
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