STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re J. E. LESLIE, Minor. October 13, 2015
No. 326098
Wayne Circuit Court
Family Division
LC No. 07-471481-NA
Before: GLEICHER, P.J., and SAWYER and MURPHY, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to the
minor child, J. E. We affirm.
Respondent argues on appeal that the trial court clearly erred (1) when it found that three
different statutory grounds for termination had been established by clear and convincing
evidence, and (2) when it determined, by a preponderance of the evidence, that termination of
respondent’s parental rights was in J. E.’s best interests. We disagree in both respects.
“We review for clear error a trial court’s factual findings as well as its ultimate
determination that a statutory ground for termination of parental rights has been proved by clear
and convincing evidence.” In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010) (citations
omitted). “A finding is clearly erroneous if the reviewing court is left with a definite and firm
conviction that a mistake has been made.” In re LaFrance Minors, 306 Mich App 713, 723; 858
NW2d 143 (2014). This Court defers “to the special ability of the trial court to judge the
credibility of witnesses.” Id. Any related statutory interpretation poses a question of law to be
reviewed de novo. Id.
First, we address respondent’s arguments regarding the statutory grounds for termination
cited by the trial court. Although respondent contends that the order of termination listed only
three statutory grounds for termination, four grounds were actually cited in the referee’s report
and recommendation, which the trial court adopted and appended to its final order. As
respondent recognizes, the trial court relied on MCL 712A.19b(3)(c)(i), (3)(g), and (3)(j). But it
also relied on MCL 712A.19b(3)(c)(ii), which is a distinct statutory ground. See In re JK, 468
Mich 202, 210-212; 661 NW2d 216 (2003) (analyzing subsection (3)(c)(ii) as an independent
statutory ground for termination). Since only one statutory ground need be proven to terminate
parental rights, MCL 712A.19b(3); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011), and
respondent fails to contest the trial court’s findings regarding subsection (3)(c)(ii), the instant
-1-
claim of error necessarily fails. Even if respondent is correct, and the trial court clearly erred
regarding the other three statutory grounds it cited, reversal is unwarranted. Ellis, 294 Mich App
at 32 (“Only one statutory ground need be established . . . even if the court erroneously found
sufficient evidence under other statutory grounds.”); In re HRC, 286 Mich App 444, 461; 781
NW2d 105 (2009) (“Having 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 also In re
TK, 306 Mich App 698, 712; 859 NW2d 208 (2014) (“ ‘A party cannot simply assert an error or
announce a position and then leave it to this Court to discover and rationalize the basis for [her]
claims, or unravel and elaborate for [her her] argument, and then search for authority either to
sustain or reject [her] position.’ ”) (alterations in original), quoting Mitchell v Mitchell, 296 Mich
App 513, 524; 823 NW2d 153 (2012) (quotation marks and citation omitted).
In any event, the trial court did not, as respondent argues, clearly err by finding that MCL
712A.19b(3)(c)(i), (3)(g), and (3)(j) had each been proven as a statutory ground by clear and
convincing evidence. The statutory provisions at issue provide:
(3) The court may terminate a parent’s parental rights to a child if the
court finds, by clear and convincing evidence, 1 or more of 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 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.
***
(g) The 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.
***
(j) There 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. [MCL 712A.19b(3)(c)(i), (3)(g), and (3)(j).]
Respondent argues that the first statutory ground, subsection 3(c)(i), was not proven by
clear and convincing evidence. She does not argue that the conditions that led to adjudication
were remediated prior to termination, which is prudent given her admission at the final hearing
that her substance abuse still precluded her from properly caring for J. E. Instead, she suggests
-2-
that she substantially complied with her treatment plan, thereby demonstrating a reasonable
likelihood that the situation would be rectified within a reasonable time considering J. E.’s age.
But the record belies respondent’s claim of substantial compliance. Indeed, at the final
hearing she admitted that she still had a “drug problem” and—despite five referrals—she had not
completed substance abuse treatment or benefitted from such treatment. In 2007, she already
had a three-year “history of crack cocaine abuse.” At the final hearing in January 2015—more
than a year and a half after J. E. was removed—she admitted that she was still using cocaine and
had done so within the prior two weeks. She also admitted regular marijuana use and that she
was drinking “a lot,” further suggesting that her last drinking binge had ended that morning
around 2:00 a.m. She had never been compliant with drug screening. She missed 59 of 89
screens and tested positive for alcohol, marijuana, cocaine, or a combination of such substances
every time she was tested. Although she completed parenting classes, a DHHS worker aptly
opined that her continuing noncompliance evinced a failure to benefit from the classes. Finally,
respondent openly acknowledged that she was “not prepared to properly care for” J. E. yet and
had attempted suicide just a week before the hearing.
Respondent has a long, well-documented, admitted history of substance abuse. It
prevents her from caring for J. E.’s most basic needs and certainly his unique educational and
mental health needs. He was 11 years old on the day of the final hearing and would turn 12 just
three days later. Despite more than one intervention by DHHS over a period of years, and
respondent’s many opportunities to address her problems by taking advantage of the various
services she had been offered, she failed to do so. Her stated desire to change may be genuine,
but it is also immaterial. In light of her history of failing to take the steps necessary to actually
realize change, her hope that she may change did not demonstrate a reasonable probability that
she ever will—let alone in a reasonable period of time given J. E.’s age. Thus, the trial court did
not clearly err by finding that subsection 3(c)(i) had been proven by clear and convincing
evidence as a statutory ground supporting termination. See In re White, 303 Mich App 701, 710;
846 NW2d 61 (2014) (“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. . . .”) (quotation marks and citation omitted; emphasis
added).
For similar reasons, respondent’s argument regarding subsection 3(g) is unavailing. She
first contends that the trial court failed to clearly state any finding that she would not be able to
provide proper care for J. E. within a reasonable time, particularly given his age. This is untrue.
The “findings of fact” section of the referee’s report, which the trial court adopted and appended
to its order, concludes with the following paragraph:
The mother [respondent] has a number of issues that she has failed to
rectify since [J. E.] has been placed in foster care; in fact, evidence was presented
that just last week [respondent] attempted suicide. [She] is not in the position to
be reunified with her son and it does not appear that she will be any closer to
reunification within the near future.
Respondent also argues that the trial court should have permitted her more time to
demonstrate sobriety and undergo mental health treatment. Her argument presupposes that the
-3-
preceding year of service referrals did not afford her adequate time and opportunity to address
her problems. Moreover, she fails to explain how the trial court’s refusal to provide more time in
hope of future improvement has any bearing on its factual findings about respondent’s past
noncompliance with her treatment plan. Since such noncompliance and failure to benefit from
services “is evidence that the parent will not be able to provide a child proper care and custody,”
id., the trial court’s finding regarding subsection 3(g) was not clearly erroneous.
Regarding the third ground, subsection 3(j), respondent contends that, as there was no
evidence that J. E. was ever physically harmed while in her custody, it necessarily follows that
the trial court clearly erred when it found there was a reasonable likelihood that J. E. would be
“harmed” if he was returned to her. But in the context of subsection 3(j), a reasonable likelihood
of emotional harm can be sufficient to justify termination. See In re Hudson, 294 Mich App 261,
268; 817 NW2d 115 (2011). As the trial court noted, J. E. had “been in foster care for a
significant period of time and is at an age where permanent planning is essential for continued
growth and development.” It further found that there was no reasonable likelihood that she
would be able to provide the permanency J. E. needed “within the near future,” concluding that
respondent would continue to neglect J. E. if he was returned to her care. Given J. E.’s age,
special educational needs, and mental health issues, the trial court did not clearly err. On the
contrary, the record suggests it was reasonably likely that J. E. would have suffered emotional
harm if he had been returned to respondent’s custody.
Having concluded that the trial court did not clearly err regarding the statutory grounds it
cited, we turn to respondent’s arguments regarding J. E.’s best interests. We review the trial
court’s findings in this regard for clear error. LaFrance, 306 Mich App at 723, citing In re Trejo
Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2002). MCL 712A.19b(5) provides, “If the
court finds that there are grounds for termination of parental rights and that termination of
parental rights is in the child’s best interests, the court shall order termination of parental rights
and order that additional efforts for reunification of the child with the parent not be made.”
Placement with a “natural parent” is heavily presumed to be in the best interests of a minor child.
LaFrance, 306 Mich App at 724 (citations omitted). Indeed, a reviewing court must remain
cognizant “that the ‘fundamental liberty interest of natural parents in the care, custody, and
management of their child[ren] does not evaporate simply because they have not been model
parents or have lost temporary custody of their child[ren] to the State.’ ” Trejo, 462 Mich at 373-
374 (alteration in original), quoting Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L
Ed 2d 599 (1982). However, “at the best-interest stage, the child’s interest in a normal family
home is superior to any interest the parent has.” In re Moss, 301 Mich App 76, 89; 836 NW2d
182 (2013), citing Santosky, 455 US at 760. Thus, once a statutory ground for termination has
been established by clear and convincing evidence, a preponderance of the evidence can
establish that termination is in the best interests of the child. Moss, 301 Mich App at 86-90
(“[T]he interests of the child and the parent diverge once the petitioner proves parental
unfitness . . . . Although the parent still has an interest in maintaining a relationship with the
child, this interest is lessened by the trial court’s determination that the parent is unfit to raise the
child.”).
Respondent claims that it is undisputed that she completed, and benefitted from,
parenting classes. But a DHHS worker testified that, although respondent completed the
-4-
parenting classes—after being terminated from them on five prior occasions—she had not
seemingly benefitted from them. Due to respondent’s failure to “regularly visit” J. E. while he
was in foster care, which showed “a complete disregard of the importance of the visits,” the trial
court agreed that respondent had not benefitted from the parenting classes. That finding was not
clearly erroneous. Other than her own bald assertion, there is no evidence that respondent
benefitted. The trial court relied on the DHHS worker’s opinion instead of that expressed by
respondent. Given the conflict in such evidence, the trial court’s finding contains an implicit
credibility determination to which we defer. See LaFrance, 306 Mich App at 723.
On the other hand, respondent correctly notes that a court may consider the parent-child
bond in making its best interests determination. In re Olive/Metts, 297 Mich App 35, 42; 823
NW2d 144 (2012). She fails, however, to recognize that a child’s need for “stability and
permanence” can outweigh even a strong parent-child bond. See In re LE, 278 Mich App 1, 29-
30; 747 NW2d 883 (2008). Although J. E. was strongly bonded with respondent, the trial court
nevertheless concluded that his “dire need” for permanence was the controlling consideration.
Given respondent’s history of substance abuse, mental illness, involvement in violent domestic
relationships, and her inability to provide housing or document a legal source of income, the trial
court’s finding was not clearly erroneous in this respect.
Indeed, although respondent’s bond with J. E. was an important consideration, it was one
with potential to cut both ways. Respondent’s weekly visits with J. E. had been sporadic. For
instance, without any stated excuse, and despite “every effort” to encourage her attendance, she
failed to visit him at all from June 14, 2014, to September 14, 2014. She had not visited him for
two weeks before the final hearing, which included Christmas. And she had refused
transportation or bus passes to permit visitation on numerous occasions. In light of the strong
bond cited by respondent, her failure to attend scheduled visitations was understandably
upsetting to J. E. Thus, given her seeming indifference to the harm she might inflict upon J. E.
through her continued actions, in many ways respondent’s bond with him was more harmful than
beneficial. Such a bond can, of course, cut deeply when handled carelessly.
Respondent also contends that the trial court erred by making its best interests
determination without first considering the permanency or suitability of J. E.’s residential
placement. Citing Mason, 486 Mich at 142-143, and other cases involving placement with a
relative, respondent argues that the trial court erred by failing to consider J. E.’s placement. She
acknowledges that he was not placed with a relative at the time of termination, but she
nevertheless contends that the instant scenario is comparable to Mason. Respondent argues that,
as in Mason, here J. E.’s placement was simply too relevant to be ignored. She misunderstands
Mason, construing its holding far too broadly. Mason simply held that, because “a child’s
placement with relatives weighs against termination under MCL 712A.19a(6)(a),” such
placement is “an explicit factor” that must be considered if it exists. Id. at 164; see also
Olive/Metts, 297 Mich App at 43 (examining the statutory rationale of the Mason holding).
Since J. E. was not in a placement with relatives, and there is a dearth of evidence that he could
have been so placed in lieu of termination, respondent’s argument that the trial court was
required to consider J. E.’s placement before terminating parental rights is unconvincing.
-5-
It is equally unpersuasive as a request for legal reform—a trial court already can consider
a “child’s need for permanency, stability, and finality,” in its best interests determination.
Olive/Metts, 297 Mich App at 42. Indeed, the trial court in this case did consider it, emphasizing
J. E.’s need for permanence several times. To the extent respondent’s argument involves policy
considerations about how children should be placed, and the wisdom of termination generally, it
far exceeds the scope of the best interests inquiry and raises questions that are nonjusticiable.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ William B. Murphy
-6-