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UNPUBLISHED
In re FOUST, Minors. December 17, 2020
Nos. 349545; 349761
Genesee Circuit Court
Family Division
LC No. 16-133553-NA
Before: LETICA, P.J., and RIORDAN and CAMERON, JJ.
PER CURIAM.
In this consolidated appeal, respondents appeal the trial court’s order terminating their
parental rights to their minor children, AF and KF, under MCL 712A.19b(3)(c)(i) (conditions that
led to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j)
(reasonable likelihood that the children will be harmed if returned to the parents).1 We affirm in
both dockets.
I. BACKGROUND
This matter began when a petition was filed in October 2016. In relevant part, the petition
concerned AF, KF, and BF, who is respondents’ oldest son.2 The petition alleged that respondent-
mother had a history of substance abuse and that, although respondent-mother had been offered
services in the past, she had been uncooperative. It was further alleged that the children were not
being properly supervised and that, on October 7, 2016, the children were found alone outside
while respondent-mother was unresponsive after having consumed cocaine. It was also alleged
that the children were often absent from or tardy to school and that AF and KF, who are twins,
were being medically neglected. Respondent-mother also had unstable, unsuitable housing. It
1
The trial court’s order concerning the statutory grounds references MCL 712A.19b(3)(h).
However, review of the order establishes that the trial court intended to cite MCL 712A.19b(3)(j).
2
BF is not a party to this appeal. However, because respondent-mother’s relationship with BF
and ability to care for BF is relevant to one of the issues on appeal in Docket No. 349545, BF will
be referenced in this opinion where it is appropriate to do so.
-1-
was alleged that the home where respondent-mother was staying with the children contained
“[i]llicit drugs” and “[d]rug paraphernalia.” The petition also alleged that the home was
“unsuitable” because of “excessive clutter.” At the time the petition was filed, respondent-father
was serving a prison sentence.3 The petition requested that the trial court remove the children from
respondents’ care and custody and exercise jurisdiction.
After a preliminary hearing was held on October 13, 2016, the petition was authorized, and
it was ordered that the children would be placed in foster care. Respondent-mother was granted
supervised parenting time. The trial court ordered that respondent-father would no longer be
considered a respondent in the child protective proceeding. Specifically, the trial court noted that
the petition did not contain any allegations of wrongdoing against respondent-father. However,
the trial court held that respondent-father should be able to have contact with the children through
letters and telephone calls, if possible.
On November 15, 2016, a hearing was held. Although respondent-mother was provided
with notice, she failed to appear. It was reported that respondent-mother was “showing up
significantly late for visitation,” that she appeared to be under the influence during visits, and that
she had tested positive for illegal substances, including marijuana, cocaine, and amphetamines.
The trial court declined to suspend the visitations, but ordered respondent-mother to confirm her
attendance in advance. Caseworkers were also given discretion to cancel the visitations if
respondent-mother was under the influence.
On December 6, 2016, respondent-mother pleaded nolo contendere to several allegations
in the petition. Thereafter, the trial court exercised jurisdiction and ordered that reasonable efforts
toward reunification be made with respect to respondent-mother. The trial court immediately
proceeded to the dispositional phase and heard the caseworker’s recommendations, which the trial
court adopted. It was noted that respondent-mother had been testing positive for illegal substances
and that two parenting time visits had to be cancelled because respondent-mother failed to “call in
time.” Respondent-mother was ordered to submit to a psychological evaluation and a substance
abuse assessment, and to comply with and benefit from the recommendations. Respondent-mother
was also ordered to submit to substance screenings, to comply with and benefit from parenting
coaching or education, to obtain suitable housing and a legal source of income, and to sign
necessary releases. It was noted that respondent-mother would be referred to Family Dependency
Drug Court.4
At the end of January 2017, respondent-mother was accepted into the Family Dependency
Drug Court program. On February 8, 2017, respondent-mother attended her first hearing, where
she was officially welcomed into the program and was instructed about the importance of being
3
In 2013, respondent-father was convicted of unarmed robbery, possession of a firearm during the
commission of a felony, felon in possession of firearm, and larceny of a firearm. As discussed
later in this opinion, respondent-father became eligible for parole in March 2019 but parole was
denied. His maximum release date is April 2028.
4
The purpose of Family Dependency Drug Court is to “teach a substance abuse free lifestyle” and
to reunify parents with their children.
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compliant with the services being provided to her. After the February 8, 2017 hearing, respondent-
mother missed treatment and compliance appointments, missed drug screenings, and tested
positive for illegal substances. Ultimately, on February 22, 2017, the trial court found respondent-
mother to be in contempt and sentenced her to 21 days in jail. The trial court ordered that
respondent-mother would be released early if a bed became available in an inpatient treatment
center. On March 20, 2017, respondent-mother entered an inpatient treatment center and was
discharged 14 days later. After being discharged, she continued to use illegal substances, missed
drug screenings and appointments, and failed to attend certain appointments on time.
Respondent-mother returned to residential treatment on April 12, 2017, but tested positive
for cocaine on May 8, 2017. She completed the program on May 22, 2017 and was discharged.
Thereafter, respondent-mother began to consistently work with a parenting coach and attend
visitations with the children. However, respondent-mother failed to be entirely compliant with
completing her drug screenings. During a June 14, 2017 hearing, it was reported that respondent-
mother had tested positive for illegal substances on three separate occasions since being released
from treatment. Respondent-mother failed to attend that hearing because she was in jail on a
charge of possession of cocaine, which dated back to December 19, 2016. After respondent-
mother was released from jail, she continued to test positive for illegal substances and missed drug
screenings. Respondent-mother returned to inpatient treatment on August 1, 2017, only to leave
the following day. After testing positive for cocaine and failing to submit to a screening,
respondent-mother was terminated from Family Dependency Drug Court on August 9, 2017.
On August 23, 2017, a permanency planning hearing was held. It was noted that
respondent-mother continued to be unemployed, that she continued to have unstable housing, and
that she had criminal matters pending. Although respondent-mother had completed working with
the parenting coach, testimony supported that she did not fully benefit from that service. It was
also reported that respondent-mother sometimes had inappropriate conversations with the children
during parenting time. The guardian ad litem indicated that, if not for the fact that respondent-
father was not named as a respondent in the matter, she would advocate for the permanency
planning goal to be changed from reunification to adoption. The referee who was presiding over
the hearing agreed with the guardian ad litem that little progress had been made in the 10 months
since the children had been taken into care. Based on the request of respondent-mother’s attorney,
the trial court ordered that respondent-mother be referred for a psychological evaluation, which
respondent-mother completed on September 12, 2017. The evaluator believed that respondent-
mother would have issues parenting the children due to her substance abuse and untreated mental
health issues, which included anxiety, depression, and attention deficit disorder.
During a November 15, 2017 review hearing, it was revealed that respondent-mother had
tested positive for illegal substances, had failed to attend some substance screenings, and had
refused to take her psychotropic medication during the review period. Respondent-mother had
also been late to two visitations and had difficulty managing AF, BF, and KF at the same time.
Respondent-mother continued to be unemployed and was living with the children’s maternal
grandmother. The trial court ordered that a supplemental petition be filed and that respondent-
father be provided with weekly telephone contact with the children.
On November 30, 2017, petitioner filed a supplemental petition, requesting that the trial
court terminate respondent-mother’s parental rights to the children under MCL 712A.19b(3)(c)(i),
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(g), and (j). The supplemental petition alleged that respondent-father was unable to provide proper
care and custody to the children because he was incarcerated and had not named any relatives who
were able to provide care to the children for the remainder of his incarceration. Petitioner
requested that the trial court exercise jurisdiction as to respondent-father.
After a preliminary hearing was held, the supplemental petition was authorized. However,
during a February 1, 2018 hearing, petitioner noted its concern that it would not be “appropriate”
“to litigate the termination petition with” respect to respondent-mother given that termination with
respect to respondent-father could not yet be sought. Petitioner noted that, even if the trial court
terminated respondent-mother’s rights, the children would not be able to obtain permanency
through adoption for a period of time. Therefore, the petitioner withdrew the termination request
with respect to respondent-mother. Although respondent-mother was in jail at the time of the
hearing, it was reported that she intended to enter inpatient treatment when she was released.5
On March 28, 2018, respondent-father admitted that he was incarcerated and did not have
a family member to whom he was able to direct placement of the children. The trial court exercised
jurisdiction and immediately moved into the dispositional phase of the proceeding. It was ordered
that reasonable efforts towards reunification would be made. Specifically, the trial court ordered
that respondent-father be provided with weekly telephone contact with the children and that the
caseworker provide respondent-father with documentation concerning the proceeding “no later
than 5 business days before . . . scheduled hearing[s].”
On May 18, 2018, respondent-mother was arrested and charged with felony “grand theft
auto.” On July 2, 2018, respondent-mother was released from jail on bond. She tested positive
for cocaine on July 5, 2018, and continued to refuse to take psychotropic medication. During a
July 12, 2018 hearing, it was noted on the record that respondent-mother had been inconsistent
with attending visitations and was sometimes late. It was also noted that the children required
consistency. Respondent-mother was warned that her visitations, which were held once each week
for one hour, would be suspended if she did not consistently attend them and appear in a timely
manner.
On August 20, 2018, respondent-mother entered the Felony Drug Court program. It was
agreed that, if respondent-mother successfully completed the Felony Drug Court program, her
“grand theft auto” charge would be dismissed. On September 29, 2018, respondent-mother tested
positive for illegal substances.
On October 12, 2018, petitioner filed a second supplemental petition, requesting that the
trial court terminate respondents’ parental rights to the children under MCL 712A.19b(3)(c)(i),
(g), and (j). The second supplemental petition was authorized following a preliminary hearing.
On October 25, 2018, respondent-mother entered inpatient treatment as a Felony Drug
Court sanction for testing positive for illegal substances on September 29, 2018. She was
discharged from treatment on November 21, 2018. Because respondent-mother had demonstrated
5
It appears that respondent-mother was in jail because she had either been charged with or
convicted of driving while license suspended. It is unclear when she was released from jail.
-4-
progress with remaining sober, she was granted an additional parenting time visit each week. In
January 2019, respondent-mother was “promoted” to phase two of the Felony Drug Court program.
The statutory grounds portion of the termination hearing was held over the course of
several days in February and March 2019. During the hearing, caseworkers testified about
respondent-mother’s lack of progress for most of the proceeding. However, it was agreed that,
after the second supplemental petition was filed in October 2018, respondent-mother began to
demonstrate improvement with consistently and timely attending parenting visitations. Her
parenting skills and commitment to maintaining sobriety had also improved. However,
respondent-mother had not yet obtained stable housing or income. Respondent-mother and
respondent-father both testified on their own behalf. Although respondent-father was eligible for
parole in March 2019, it was disclosed at the March 29, 2019 hearing that he had been “flopped”
and that he would not be eligible for release until March 2020.
After the close of proofs, the trial court took the matter under advisement and issued a
written opinion on May 30, 2019. The trial court’s written opinion noted that petitioner was
seeking termination under MCL 712A.19b(3)(c)(i), (g), and (j) as to BF, AF, and KF. After
reviewing the procedural background, respondent-mother’s psychological evaluation, and the
testimony presented at the termination hearing and making findings of fact, the trial court
concluded that “there is . . . clear and convincing evidence as to each of the statutory sections,
which provides a basis for termination as to each parent.” The trial court concluded that it was
therefore proper to “proceed to the Best Interest Phase.”
The best-interest hearing began on May 30, 2019, at which point the trial court conducted
interviews with the children in chambers. Only the guardian ad litem, who was present in
chambers during the interviews, was permitted to ask questions. The interviews were recorded
and were able to be viewed by those present in the courtroom. After interviewing the children and
hearing testimony from the children’s mental health providers, caseworkers, AF and KF’s foster
mother, respondent-mother, and the children’s maternal grandmother, the trial court found that
termination of respondents’ parental rights to AF and KF was in their best interests in a June 5,
2019 opinion and order. However, the trial court concluded that termination of respondents’
parental rights to BF was not in his best interests. The trial court ordered that BF be returned to
respondent-mother’s care “no later than July 3, 2019[.]” These appeals followed.
II. ANALYSIS
A. RESPONDENT-MOTHER (DOCKET NO. 349545)
1. ADJUDICATION
Respondent-mother first argues that, when accepting her nolo contendere plea to establish
jurisdiction, the trial court erred by failing to comply with MCR 3.971(B)(4). Specifically,
respondent-mother argues that the trial court failed to advise her that her plea could be used against
her during subsequent termination proceeding.
Because respondent-mother did not move to withdraw her plea in the trial court or
otherwise object to the advice of rights that were provided, this issue is unpreserved, and we apply
the plain-error standard set forth in People v Carines, 460 Mich 750; 597 NW2d 130 (1999). See
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In re Pederson, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 349881); slip op at
8. In order to avoid forfeiture under the plain error test,
1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) . . . the
plain error affected substantial rights . . . [, and 4)] once a defendant satisfies these
three requirements, an appellate court must exercise its discretion in deciding
whether to reverse. Reversal is warranted . . . when the plain, forfeited
error . . . seriously affected the fairness, integrity or public reputation of judicial
proceedings . . . . [People v Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018),
quoting Carines, 460 Mich at 763-764 (alterations and some ellipses in original).]
An error has affected a party’s “substantial rights when there is ‘a showing of prejudice, i.e., that
the error affected the outcome of the lower court proceedings.’ ” People v Walker, 504 Mich 267,
276; 934 NW2d 727 (2019), quoting Carines, 460 Mich at 763. “It is the defendant rather than the
Government who bears the burden of persuasion with respect to prejudice.” Carines, 460 Mich at
763 (quotation marks and citation omitted).
As noted by this Court in In re Pederson, ___ Mich App at ___; slip op at 9,
“In Michigan, child protective proceedings comprise two phases: the
adjudicative phase and the dispositional phase.” In re Sanders, 495 Mich 394, 404;
852 NW2d 524 (2014). The family court determines whether to take jurisdiction
of the child during the adjudicative phase. Id. The “fact-finding adjudication of an
authorized petition to determine if the minor comes within the jurisdiction of the
court” is called a “trial.” MCR 3.903(A)(27) . . . . A parent may also waive his or
her right to a trial and admit the allegations in a petition or plead no contest to them.
MCR 3.971(A); In re Sanders, 495 Mich at 405.
Pleas generally waive certain rights . . . . “Waivers of constitutional rights
not only must be voluntary but must be knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and likely consequences.”
Brady v United States, 397 US 742, 748; 90 S Ct 1463; 25 L Ed 2d 747 (1970).
Hence, for a plea to constitute a valid waiver of constitutional rights, the person
entering it must be made “fully aware of the direct consequences of the plea.”
People v Cole, 491 Mich 325, 333; 817 NW2d 497 (2012) (quotation marks and
citation omitted). “A consequence is ‘direct’ where it presents ‘a definite,
immediate and largely automatic effect’ on the defendant’s range of punishment.”
United States v Kikuyama, 109 F3d 536, 537 (CA 9, 1997), quoting United States
v Wills, 881 F2d 823, 825 (CA 9, 1989).
In the context of jurisdictional pleas in child protective proceedings, “[o]ur court rules
reflect this due-process guarantee.” In re Ferranti, 504 Mich 1, 21; 934 NW2d 610 (2019).
MCR 3.971 provides, in relevant part, as follows:
(B) Advice of Rights and Possible Disposition. Before accepting a plea of
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admission or plea of no contest, the court must advise the respondent on the record
or in a writing that is made a part of the file:
(1) of the allegations in the petition;
(2) of the right to an attorney, if respondent is without an attorney;
(3) that, if the court accepts the plea, the respondent will give up the rights
to
(a) trial by a judge or trial by a jury,
(b) have the petitioner prove the allegations in the petition by a
preponderance of the evidence,
(c) have witnesses against the respondent appear and testify under oath at
the trial,
(d) cross-examine witnesses, and
(e) have the court subpoena any witnesses the respondent believes could
give testimony in the respondent’s favor;
(4) of the consequences of the plea, including that the plea can later be used
as evidence in a proceeding to terminate parental rights if the respondent is a
parent. [Emphasis added.]
In this case, the trial court failed to advise respondent-mother on the record that her plea
could “later be used as evidence in a proceeding to terminate parental rights,” and a written advice
of rights form containing such information does not appear in the record. Thus, by failing to
properly advise respondent-mother as required by MCR 3.971(B)(4) that her plea could “later be
used as evidence in a proceeding to terminate parental rights,” the trial court plainly erred.
With regard to the prejudice prong of the plain-error test, we note that this case is similar
to In re Pederson. In In re Pederson, the trial court advised the respondents of most of their rights
under MCR 3.971(B) but failed to inform the respondents that their pleas of admission could “later
be used as evidence in a proceeding to terminate parental rights[.]” In re Pederson, ___ Mich App
at ___; slip op at 10. Although this Court determined that the trial court plainly erred, this Court
concluded that the respondents could not establish that their substantial rights were affected. Id.
at __; slip op at 10-13. In so holding, this Court indicated as follows:
[W]e conclude that [the] respondents have failed to carry their burden of
demonstrating that the adjudicatory error at issue in this case was outcome-
determinative. More specifically, in In re Ferranti, 504 Mich at 30-31, our
Supreme Court found error warranting reversal based on a finding that, because the
trial court failed to advise respondents of the rights they were waiving and the
potential consequences of their pleas, the trial court violated their due process rights
because the pleas were unknowing and involuntary. It was undisputed in that case
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that the trial court’s advice of rights was deficient because the trial court failed to
advise the respondents of “any” of the waived rights enumerated by MCR
3.971(B)(3) or (B)(4). Id. at 31.
MCR 3.971(B)(3) lists the rights that a parent waives by virtue of entering
a plea, as opposed to requiring petitioner to proceed to trial and prove the
allegations contained in the petition by a preponderance of the evidence. MCR
3.972(C)(1). The rights outlined in MCR 3.971(B)(3) are particularly important
because they directly relate to the adjudicative stage of the child protective
proceeding. The adjudicative stage is a critical stage in the proceeding because if
the trial court exercises jurisdiction, then the parent will be unable to control the
care and custody of his or her child, In re Deng, 314 Mich App 615, 626; 887 NW2d
445 (2016), and will be subjected to “the dispositional authority of the court,” MCR
3.903(A)(27). See In re Sanders, 495 Mich at 405-406 (“While the adjudicative
phase is only the first step in child protective proceedings, it is of critical importance
because the procedures used in adjudicative hearings protect the parents from the
risk of erroneous deprivation of their parental rights.”) (quotation marks and
citation omitted.). In contrast, if the trial court determines that it lacks authority to
exercise jurisdiction, the minor child must be returned to the care of his or her
parent(s) . . . . The importance of the adjudicative stage is reflected by the fact that
it is the only stage of the proceeding when a parent is entitled to a trial. See also
MCR 3.977(A)(3); In re Sanders, 492 Mich at 405-406. Thus, by failing to advise
the respondents of the rights outlined in MCR 3.971(B)(3), the trial court in In re
Ferranti effectively tainted the adjudicative stage of the proceeding.
This case does not feature the numerous errors that occurred in In re
Ferranti. [The] [r]espondents in this case only take issue with the fact that the trial
court failed to advise them that their pleas could “later be used as evidence in a
proceeding to terminate parental rights” as required by MCR 3.971(B)(4). Thus,
unlike the parents in In re Ferranti, [the] respondents in this case were informed of
most of the rights that they were waiving, including their rights to a trial by judge
or jury, to have witnesses against them appear, and to subpoena witnesses.
Moreover, the transcript of the plea proceeding supports that [the] respondents
reviewed the allegations in the petition with their attorney, who represented them
at the plea hearing. See MCR 3.971(B)(1) and (2). The record also supports that
[the] respondents discussed the allegations contained in the petition with their
attorney and considered their decision.
***
Each of the allegations that [the] respondents were pleading to were read
aloud at the hearing. Thus, [the] respondents were clearly advised of the allegations
to which they were pleading. Additionally, and importantly, [the] respondents
confirmed that they were entering pleas of their own free will.
***
-8-
Although [the] respondents were not informed that their pleas could “later
be used as evidence in a proceeding to terminate parental rights,” [the] respondents
were informed on several occasions that, if the pleas were accepted, a consequence
of their pleas would be that they would be required to comply with the case service
plans. The record of the plea proceeding supports that [the] respondents had
reviewed the case service plans before the plea hearing. Furthermore, [the]
respondents were informed several times that another possible consequence of their
pleas was that their parental rights could be terminated if they did not comply with
the case service plans. [The] [r]espondents indicated under oath that they
understood this, thereby supporting that they understood the nature and the
consequences of their pleas. [In re Pederson, ___ Mich App at ___; slip op at 10-
12.]
This case, like In re Pederson, does not “feature the numerous errors that occurred in In re
Ferranti” given that respondent-mother only takes issue “with the fact that the trial court failed to
advise [her] that [her] plea[] could ‘later be used as evidence in a proceeding to terminate parental
rights’ as required by MCR 3.971(B)(4).” In re Pederson, ___ Mich App at ___; slip op at 11. At
the plea hearing, the trial court confirmed on the record that respondent-mother had reviewed the
allegations in the petition with her attorney, who represented her at the hearing. Thereafter, the
trial court accurately “paraphrased” the specific allegations to which respondent-mother agreed to
plead nolo contendere. The trial court indicated as follows:
It says that the home that you were residing in with the children was
excessively cluttered, elicit drugs were found in the home including marijuana, drug
paraphernalia including a bowl and a lighter. It says that [respondent-mother] was
habitually using drugs including cocaine, amphetamines, methamphetamines, and
THC which prevented the proper care and supervision and custody for the children.
The trial court then stated “[t]hose are the allegations” and noted that respondent-mother’s
attorney had indicated that respondent-mother was “going to plead no contest.” The trial court
then explained what it meant to plead nolo contendere and confirmed that respondent-mother
understood. The trial court explained that “ordinarily parents have the right to raise their children
without any interference from the government.” However, the trial court explained that, if the
court acquired jurisdiction by virtue of respondent-mother’s plea, it “would have the authority to
make decisions about the children to protect them” “on a temporary basis[.]” The trial court also
explained that respondent-mother would be “ordered to participate in services in order to correct
the problem.” Respondent-mother confirmed that she understood. The trial court warned
respondent-mother that “[i]f the problem was not corrected” and she “didn’t follow through with
the plan that [she] would be ordered to participate in, then the petitioner could request termination
of rights on that basis[.]”
The trial court also indicated that respondent-mother did “not have to give the jurisdiction”
and that she had a right to a trial by judge or by jury and that petitioner would be required to “prove
that up in Court by a preponderance of the evidence.” Respondent-mother was also informed that
she was entitled to have an attorney represent her at trial and that she was giving up those rights
by pleading nolo contendere. Respondent-mother confirmed that she understood. The trial court
explained that respondent-mother would have the right to witnesses “testify in front [of her]” and
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that she would have “the right to question those witnesses.” Respondent-mother again confirmed
that she understood. The trial court then explained that respondent-mother would have the right
to call witnesses on her own behalf. The trial court again confirmed that respondent-mother
understood. After the lengthy exchange, the trial court asked respondent-mother if she had any
questions. Respondent-mother confirmed that she did not have any questions. Thus, like the
respondents in In re Pederson, respondent-mother was clearly advised of the allegations to which
she was pleading and what would occur if the trial court obtained jurisdiction as a result of her
plea.
Furthermore, when asked by the trial court if she was “freely and voluntarily” pleading
nolo contendere, respondent-mother answered “Yes.” Respondent-mother also confirmed that she
was pleading knowingly, that she had not been “promised anything,” that she had not been
threatened, that she was not under the influence, and that she had not had “any difficulties
understanding” the trial court. The trial court also confirmed with counsel that there were no
“promises or other inducements not reported[.]”
While respondent-mother was not informed that her plea could “later be used as evidence
in a proceeding to terminate parental rights,” respondent-mother was informed that, if the plea was
accepted, a consequence of the plea would be that she would be required to comply with the case
service plan to fix “the problem.” The record supports that respondent-mother signed the case
service plan before the plea hearing, thereby supporting that she had reviewed the plan before she
pleaded nolo contendere. Furthermore, respondent-mother was informed that another possible
consequence of her plea was that her parental rights could be terminated if she did not comply with
the case service plan. Respondent-mother indicated under oath that she understood this, thereby
supporting that she understood the nature and the consequences of her plea. Thus, unlike the
respondents in In re Ferranti and like the respondents in In re Pederson, “this is not a case
involving a complete failure to address the requirements listed in MCR 3.971(B)(4).”
Furthermore, as this Court stated in In re Pederson, ___ Mich App at ___; slip op at 12-
13:
MCR 3.971(B)(4) relates to the dispositional phase of the proceedings—as
opposed to the adjudicative phase—in that (B)(4) does not address the rights
associated with an adjudication trial. Rather, MCR 3.971(B)(4) concerns how
entering a plea at the adjudication stage could later be used against respondents
during the dispositional phase. Thus, unlike in In re Ferranti, the adjudicative stage
was not tainted by the trial court’s failure to advise respondents of their rights under
MCR 3.971(B)(4). Rather, [the] respondents were aware that they were giving up
the right to an adjudication trial before entering pleas.
Additionally, we conclude that the trial court’s error did not affect the
outcome of the dispositional phase of the proceedings. More specifically, in In re
Ferranti, 504 Mich at 12, the trial court relied on two statutory grounds for
termination: MCL 712A.19b(3)(c)(i) (conditions that led to the adjudication
continue to exist) and MCL 712A.19b(3)(g) (parent is unable to provide proper care
and custody). In addition to citing both of those grounds, the trial court in this case
also relied on MCL 712A.19b(3)(c)(ii), under which termination may be
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appropriate on the basis of grounds “other” than those that led to the adjudication.
See In re JK, 468 Mich 202, 210-212; 661 NW2d 216 (2003). As explained below,
the trial court did not clearly err by finding that termination of [the] respondents’
parental rights was warranted under MCL 712A.19b(3)(c)(ii). Although [the]
respondents’ pleas served to establish a statutory basis for jurisdiction, because only
one statutory ground for termination need be established, In re Ellis, 294 Mich App
30, 32; 817 NW2d 111 (2011), and because termination under MCL
712A.19b(3)(c)(ii) is, by definition, unrelated to the grounds that led to the
adjudication, it follows that the adjudicatory error at issue here did not affect the
decision to terminate [the] respondents’ parental rights.
Because we cannot conclude from the record that respondents’ pleas were
not knowingly and voluntarily made or that respondents’ decision to plead affected
the adjudicative or dispositional stages of the proceeding, we conclude that
respondents have failed to carry their burden of demonstrating prejudice. See
Carines, 460 Mich at 763.
In this case, respondent-mother argues that the facts in In re Pederson are distinguishable
from the facts herein because it cannot be said that the dispositional phase of the proceeding was
not tainted by the trial court’s error. We disagree.
The trial court found statutory grounds to terminate respondent-mother’s parental rights
under MCL 712A.19b(3)(c)(i), (g), and (j). Because the trial court did not rely on (c)(ii),
respondent-mother argues that, unlike in In re Pederson, it cannot be said that the grounds for
termination were “unrelated to the grounds that led to the adjudication” and that the adjudicatory
error did not affect the trial court’s decision to terminate respondent-mother’s parental rights.
According to respondent-mother, the trial court’s termination of her “parental rights was based
entirely on . . . her substance abuse issues.”
Although the trial court considered respondent-mother’s substance abuse when concluding
that termination was appropriate with respect to AF and KF, respondent-mother’s parental rights
were not terminated solely because of the issues that were present at adjudication. When
terminating respondent-mother’s parental rights, the trial court relied on respondent-mother’s lack
of progress and lack of stability during a majority of the proceeding. Indeed, after the trial court
exercised jurisdiction in December 2016, respondent-mother was charged with a felony, failed to
obtain steady employment, failed to obtain stable housing, failed to consistently and timely attend
visitations with the children, demonstrated poor parenting skills, refused to take psychotropic
medication to treat her mental health issues, and married a man whom she had only known for
several months. Thus, although the trial court noted respondent-mother’s history of substance
abuse, the trial court also relied on evidence that was unrelated to the grounds that led to the
adjudication. Because we cannot conclude from the record that respondent-mother’s plea was not
knowingly and voluntarily made or that respondent-mother’s decision to plead affected the
adjudicative or dispositional stages of the proceeding, we conclude that respondent-mother has
failed to carry her burden of demonstrating prejudice. See In re Pederson, ___ Mich App at ___;
slip op at 13.
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Moreover, even if we were to conclude that respondent-mother’s substantial rights were
affected, respondent-mother would not automatically be entitled to reversal. Rather, “[r]eversal is
warranted . . . when the plain, forfeited error . . . seriously affected the fairness, integrity or public
reputation of judicial proceedings.” See Randolph, 502 Mich at 10. In this case, like in In re
Pederson, respondent-mother has not argued that she would not have pleaded to some of the
allegations in the petition if the trial court had informed her that the plea could be used as evidence
against her if termination proceedings commenced. See In re Pederson, ___ Mich App at ___;
slip op at 13. As already stated, respondent-mother was informed that her parental rights could be
terminated if she did not comply with the case service plan. After respondent-mother failed to
benefit from the case service plan for nearly two years, termination proceedings were initiated. As
discussed later, overwhelming evidence supported termination of respondent-mother’s parental
rights pursuant to MCL 712A.19b(3)(j) and that termination was in AF and KF’s best interests.
Based on this record, we conclude respondent-mother is not entitled to relief under plain-error
review.
2. RIGHT TO COUNSEL
Respondent-mother argues that the trial court erred by failing to ensure that she was
properly represented by a court-appointed attorney at each stage of the child protective proceeding.
Because this issue is unpreserved, we review for plain error affecting substantial rights. See In re
HRC, 286 Mich App 444, 450; 781 NW2d 105 (2009).
“This Court has explicitly recognized that the United States Constitution guarantees a right
to counsel in parental rights termination cases.” In re Williams, 286 Mich App 253, 275; 779
NW2d 286 (2009). In addition, MCL 712A.17c provides:
(4) In a proceeding under section 2(b) or (c) of this chapter, the court shall
advise the respondent at the respondent’s first court appearance of all of the
following:
(a) The right to an attorney at each stage of the proceeding.
(b) The right to a court-appointed attorney if the respondent is financially
unable to employ an attorney.
(c) If the respondent is not represented by an attorney, the right to request
and receive a court-appointed attorney at a later proceeding.
(5) If it appears to the court in a proceeding under section 2(b) or (c) of this
chapter that the respondent wants an attorney and is financially unable to retain an
attorney, the court shall appoint an attorney to represent the respondent.
Thus, in a proceeding under MCL 712A.2(b) or (c), an indigent parent is entitled to counsel
“at each stage of the proceeding.” MCL 712A.17c(4). The court rules similarly reflect a parent’s
right to counsel in a child protective proceeding. See MCR 3.915(B)(1).
In this case, respondent-mother first takes issue with the fact that she did not have appointed
counsel present during several hearings that took place in the Family Dependency Drug Court.
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Assuming without deciding that the term “each stage of the proceeding” includes hearings that are
held through the Family Dependency Drug Court, we fail to see how respondent-mother’s
substantial rights were affected by counsel not being present at certain hearings.6 Respondent-
mother was terminated from Family Dependency Drug Court in August 2017 as a result of her
failure to comply. This occurred after respondent-mother had checked into three inpatient
treatment facilities, one of which she left after a single day. After being terminated, respondent-
mother continued to use illegal substances and was charged with a felony. Respondent-mother
acknowledged at one of the termination hearings that she continued to use illegal substances until
July 2, 2018. Thus, even if respondent-mother is correct that some of her drug screenings were
“false positives” and that counsel could have assisted her in advocating for herself, the fact would
remain that respondent-mother admitted to using illegal substances almost 11 months after her
discharge from Family Dependency Drug Court and more than 20 months after the children were
taken into care.
Moreover, at the time of termination, almost 22 months had passed since respondent-
mother was discharged from the Family Dependency Drug Court. Everyone agreed that
respondent-mother had made progress with attending parenting time visitations and maintaining
her sobriety and that she was doing well in Felony Drug Court. However, as of March 29, 2018,
respondent-mother did not have independent housing, employment, or stable income; rather, she
planned to live with the children’s maternal grandmother, who is on the central registry. Moreover,
respondent-mother attributed her success to being involved in Felony Drug Court, which is a
regimented program, as opposed to her own skill set. Given respondent-mother’s history, her
failure to begin to make progress until nearly two years into the lengthy proceeding, and AF and
KF’s need for permanency, the trial court found that termination of respondent-mother’s parental
rights to AF and KF was proper. For the reasons discussed later in this opinion, this decision did
not amount to clear error. On this record, we fail to see how the result of the proceeding would
have been different had respondent-mother been provided with counsel at every Family
Dependency Drug Court hearing.
Next, respondent-mother correctly notes that counsel was not present during a May 25,
2017 statutory review hearing, which was held before a referee. However, we fail to see how
respondent-mother’s substantial rights were affected by counsel’s absence at this hearing. Indeed,
after hearing the caseworker’s report, the referee indicated that respondent-mother was making
“some progress.” After the hearing, the trial court entered an order, ordering that reasonable
reunification efforts would continue to be made and that respondent-mother would continue to
have supervised visitation with the children. Thus, respondent-mother’s parenting time was not
suspended and the permanency planning goal was not changed at the May 25, 2017 hearing.
Although respondent-mother’s parental rights to AF and KF were subsequently terminated, it was
not until more than two years after the May 25, 2017 hearing. Furthermore, while it is unclear
why counsel was not present at this hearing, respondent-mother was consistently provided with
counsel at every other hearing, including the preliminary hearings, statutory review hearings,
6
Notably, respondent-mother was provided with counsel before she was held in contempt and
ordered to serve jail time. She was also provided with counsel before she was terminated from the
program in August 2017.
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permanency planning hearings, pretrial hearings, and termination hearings. Consequently, we
conclude that respondent-mother is not entitled to relief under plain-error review.
3. INTERVIEWS
Next, respondent-mother argues that the trial court erred by conducting “unlawful in
camera interviews with” the children.
At the outset, we note that petitioner argues that respondent-mother has waived this
argument. We disagree. A waiver is the “intentional and voluntary relinquishment of a known
right.” Walters v Nadell, 481 Mich 377, 384 n 14; 751 NW2d 431 (2008). “A party who waives
a right is precluded from seeking appellate review based on a denial of that right because waiver
eliminates any error.” Hodge v Parks, 303 Mich App 552, 556; 844 NW2d 189 (2014) (quotation
marks and citation omitted). Waiver occurs when a party stipulates to a matter before the trial
court. Id. (stating that a party cannot stipulate to a matter before the trial court “and then argue on
appeal that the resulting action was erroneous” and holding that the agreement amounted to a
waiver that extinguished any error).
During a May 23, 2019 hearing, the trial court indicated on the record that, although its
opinion and order was not yet complete, it had found statutory grounds for termination of
respondent-mother’s parental rights. The trial court indicated that the attorneys would have a copy
of the opinion and order by May 28, 2019. The trial court then stated the following:
Trial Court: I did speak to the attorneys before we came out and I think in
terms of the best interest component of this that we agreed I believe on next
Thursday, May 30th, and I think the attorneys agree that I would interview the three
children in chambers, and we would set this up so that the parties would be able to
view the interview as well. Is that fair, counsel? I think that’s what the discussion
was and that’s what we agreed on?
Respondent-Mother’s Attorney: Yes, Your Honor.
Guardian Ad Litem: Yes, Your Honor.
Thus, respondent-mother, through counsel, agreed that the trial court could interview the
children in chambers. In so agreeing, respondent-mother was aware that “the parties” would be
able to view the interviews. However, there is no indication that respondent-mother was aware
that the guardian ad litem would be in chambers during the interviews and would be able to ask
the children questions. Indeed, the trial court’s brief logistical discussion only referenced the court
interviewing the children; the guardian ad litem was not included. Thus, respondent-mother only
agreed to the trial court interviewing the children in chambers with “the parties” being able to view
the interviews. The trial court never sought—and respondent-mother never gave—her agreement
about how the interviews would take place. Furthermore, it is unclear from the record whether
respondent-mother thought that “the parties” included her attorney or whether she believed that
her attorney would be present in chambers during the interviews and would be given the
opportunity to ask questions. Consequently, because the record only supports that respondent-
mother consented to the trial court interviewing AF and KF, we conclude that the issue was
forfeited instead of waived. See In re Ferranti, 504 Mich at 32-34. Therefore, our review is for
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plain error affecting substantial rights. See In re HRC, 286 Mich App at 450 (“Because [the]
respondents did not object to the trial court’s decision to conduct the interviews, our review is for
plain error affecting substantial rights.”).
Respondent-mother argues that the manner in which the interviews were conducted
violated her right to due process. “Parents have a significant interest in the companionship, care,
custody, and management of their children, and the interest is an element of liberty protected by
due process.” In re JK, 468 Mich at 210. The state may constitutionally terminate a parent’s
parental rights if it affords the parent fundamentally fair procedures, which includes proof by clear
and convincing evidence that termination is warranted. See Santosky v Kramer, 455 US 745, 753-
756; 102 S Ct 1388; 71 L Ed 2d 599 (1982). “A respondent is afforded the opportunity to present
evidence and witnesses at a hearing on the termination of parental rights and to confront and cross-
examine evidence and witnesses used against the respondent.” In re Trejo, 462 Mich 341, 355;
612 NW2d 407 (2000).
In this case, the trial court interviewed AF and KF in chambers. The guardian ad litem was
present in chambers during the interviews and was permitted to ask questions. Respondent-
mother’s counsel was not present during the interviews and was not provided with an opportunity
to ask AF or KF any questions. During the interviews, AF and KF made statements that were
relevant to the trial court’s best-interest determination. Consequently, we conclude that the trial
court plainly erred by only providing the guardian ad litem with the opportunity to question AF
and KF. See In re Ferranti, 504 Mich at 34 n 16 (noting that due process concerns would not have
been triggered had the trial court “examined the child on the record, in the presence of the parties
and counsel, and with the opportunity for examination of the witness”) (emphasis added). Given
the plain error, we must determine whether that error affected respondent-mother’s substantial
rights. We conclude that it did not.
During the interviews, AF stated that he did not want to return to respondent-mother’s care
and that he wanted to remain in his foster home. AF also indicated that he had seen respondent-
mother use a “vape.” Although KF stated that he wanted to return to respondent-mother’s care,
he also indicated that he would want to stay with his foster mother if he was unable to return to
respondent-mother’s care. It is clear from the trial court’s written opinion that the court partially
relied on the information obtained in the interviews when it issued its findings of fact and
conclusions of law relative to the determination of the children’s best interests. Nonetheless,
respondent-mother was aware of the questions that were asked of the children by the trial court
and the guardian ad litem, and the children’s responses because the interviews were recorded, able
to be viewed by those present in the courtroom, and transcribed into the record.7 Cf. In re HRC,
7
In Docket No. 349761, respondent-father argues in a cursory manner that he did not hear the
interviews and “therefore could not meaningfully respond to them.” However, there is no
indication that respondent-father’s attorney was not present in the courtroom and/or was unable to
question witnesses based on the children’s responses to the questions posed by the trial court and
the guardian ad litem. Moreover, evidence was presented through other witnesses that AF and KF
did not wish to be placed with respondent-father, that AF did not want to have communication
with respondent-father, and that AF and was afraid of respondent-father.
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286 Mich App at 455; In re Ferranti, 504 Mich at 34-35. Because the interviews took place at the
beginning of the best-interest portion of the termination hearing, respondent-mother was given the
opportunity to counter any damaging statements that were made during the interviews. Indeed,
respondent-mother attempted to do so.
Moreover, evidence of AF’s desire not to return to respondent-mother’s care was not just
introduced through the interviews. Rather, the caseworker, AF’s therapist, and AF’s foster mother
all testified that AF wanted to remain in the foster home. Additionally, and importantly, AF’s
therapist testified that AF would probably not “do well” in respondent-mother’s care and that he
would be emotionally damaged if he was not provided with consistency and permanency within a
short period of time. The therapist also noted that, although KF wanted to return to respondent-
mother’s care, he worried that there would be issues with housing and food if he returned to
respondent-mother’s care. The therapist opined that it would be harmful to separate AF and KF,
and the trial court relied upon the therapist’s testimony when holding that it was in AF and KF’s
best interests to terminate respondent-mother’s parental rights. Given the overwhelming evidence
in this case, we cannot say that that respondent-mother’s substantial rights were affected or that
the interviews “seriously affected the fairness, integrity or public reputation of judicial
proceedings.” See Randolph, 502 Mich at 10. Consequently, respondent-mother is not entitled to
relief on plain-error review.
4. STATUTORY GROUNDS
Respondent-mother argues that the trial court clearly erred by finding clear and convincing
evidence supporting the statutory grounds cited in support of termination. We find no clear error
warranting reversal.
“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 the reviewing court
is left with a definite and firm conviction that a mistake has been made,” with the reviewing court
“defer[ring] to the special ability of the trial court to judge the credibility of witnesses.” In re
LaFrance, 306 Mich App 713, 723; 858 NW2d 143 (2014).
We conclude that the trial court did not clearly err by finding that grounds for terminating
respondent-mother’s parental rights to AF and KF were established under MCL 712A.19b(3)(j).
MCL 712A.19b(3)(j) authorizes termination under the following circumstances:
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.
The harm contemplated under MCL 712A.19b(3)(j) includes emotional harm, as well as
physical harm. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011).
Throughout the proceeding, respondent-mother made impulsive and irrational decisions,
such as marrying a man whom she had only known for several months. Respondent-mother
acknowledged that her husband, who committed suicide during the proceeding, was abusing
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substances during their relationship. Respondent-mother did not demonstrate a commitment to
maintaining her sobriety until nearly two years into the proceeding despite being provided with a
myriad of services.8 Respondent-mother refused to take psychotropic medications until sometime
in 2019 despite being diagnosed with several mental health conditions that affected her ability to
parent during the proceeding. Respondent-mother also failed to consistently attend parenting time
visitations when she was free from incarceration. This was the case even though respondent-
mother was told that her inconsistency impacted the children’s behavior and mental health. While
respondent-mother’s attendance and timeliness ultimately improved, according to caseworkers,
this did not occur until after the second supplemental petition was filed. Even when respondent-
mother was at her best, she only saw the children twice each week for supervised parenting
visitations. In the time before termination, she continued to struggle with discipline and
boundaries.
Importantly, respondent-mother attributed her improvement to her participation in Felony
Drug Court, thereby demonstrating that respondent-mother had not yet learned to create her own
structure and that she required a strict environment to stay on track. When asked “what would
have happened had [she] not gone to the felony Drug Court,” respondent-mother responded “I
really couldn’t tell you.” Thus, although respondent-mother had demonstrated commendable
progress, she had done so only for a relatively short period of time and while she was a participant
in a highly structured program. Additionally, when the trial court determined that statutory
grounds for termination existed, respondent-mother had only been out of inpatient treatment for
six months.
Respondent-mother continued to demonstrate impulsive behavior in the time leading up to
termination. As of February 28, 2019, respondent-mother was living with a man to whom she
provided care in lieu of paying rent. Respondent-mother acknowledged that she did not have a
written lease agreement or any formal contract that entitled her to remain in that home.
Nonetheless, respondent-mother opined that AF, BF, and KF could live in that home, which only
contained three bedrooms. At the March 29, 2019 termination hearing, it was revealed that
respondent-mother intended to move in with the children’s maternal grandmother and the maternal
grandmother’s fiancé, who had not seen the children for the duration of the proceeding.
Respondent-mother acknowledged that she had not informed the caseworker of her intention to
move. Therefore, at the close of proofs in the statutory grounds portion for termination hearing,
the caseworker had not yet viewed the home.
In sum, although respondent-mother had made progress, evidence establishes that she was
inconsistent throughout the lengthy proceeding and continued to struggle with consistency and
rational decision making. At the February 28, 2019 hearing, respondent-mother testified that she
had to put herself first, that she was still building “a foundation,” and that she would require an
additional 90 days to acquire independent housing and stable employment. Testimony supported
8
Although respondent-mother testified that she had not “used” since July 2, 2018, and that the
September 29, 2018 drug screening was inaccurate, the trial court apparently found this testimony
to be incredible given that it noted that respondent-mother tested positive for substances on
September 29, 2018.
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that AF and KF were experiencing anxiety and behavioral issues because they required
permanency. Indeed, AF and KF were nine years old, had been in care for 2-1/2 years, and required
mental health treatment. If returned to respondent-mother, it is unclear if AF and KF would
continue to obtain their required mental health treatment given respondent-mother’s other
responsibilities and her lack of independent transportation. Importantly, AF expressed a clear
desire not to return to respondent-mother’s care.
We conclude that the record supports that there is a reasonable likelihood that AF and KF
would experience emotional harm if returned to respondent-mother given that she lacked the
ability to provide AF and KF with the consistency, permanence, and stability that they required at
the time of termination. Therefore, the trial court’s finding that termination of respondent-
mother’s parental rights was proper under MCL 712A.19b(3)(j) 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 specifically consider the additional grounds upon
which the trial court based its decision. In re HRC, 286 Mich App at 461.
5. BEST INTERESTS
Respondent-mother argues that the trial court erred by finding that termination of her
parental rights was in AF and KF’s best interests. We disagree.
“The trial court must order the parent’s rights terminated if the Department has established
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 children’s best
interests.” In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). We review the trial court’s
best-interest determination for clear error. Id.
This Court focuses on the children—not the parents—when reviewing best interests. In re
Trejo Minors, 462 Mich at 356. “In making its best-interest determination, the trial court may
consider the whole record, including evidence introduced by any party.” In re Medina, 317 Mich
App 219, 237; 894 NW2d 653 (2016) (quotation marks and citation omitted).
[T]he court should consider a wide variety of factors that may include 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. The trial court may also consider . . . the parent’s compliance with
his or her case service plan, the parent’s visitation history with the child, the
children’s well-being while in care, and the possibility of adoption. [In re White,
303 Mich App at 713-714 (quotation marks and citations omitted).]
Although the record supports that respondent-mother was bonded with AF and KF, the
record also supports that respondent-mother was inconsistent with attending visitations throughout
a majority of the lengthy proceeding. Respondent-mother was incarcerated at times during the
proceeding, which resulted in her being unable to visit the children for periods of time. This
occurred despite respondent-mother being warned that inconsistency affected the children’s
mental health and behavior at school. At times during the visitations, respondent-mother struggled
to discipline the children, lacked boundaries, and had inappropriate conversations with the
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children. Additionally, respondent-mother was never able to have unsupervised parenting time
with AF and KF. Indeed, for most of the proceeding, respondent-mother only had one parenting
time for one hour each week. Importantly, AF repeatedly indicated that he did not want to return
to respondent-mother’s care. Thus, although respondent-mother shared a bond with AF and KF at
the time of termination, the record supports that the bond was not healthy for the children. See In
re CR, 250 Mich App 185, 197; 646 NW2d 506 (2002), overruled on other grounds by In re
Sanders, 495 Mich 394 (2014) (holding that the fact that there was a “serious dispute” on the
record concerning whether the respondent “had a healthy bond of any sort with her children”
supported that termination of her parental rights was in the children’s best interests).
Additionally, the parent-child bond is only one factor for the trial court to consider. In re
Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012). As discussed above, respondent-
mother lacked commitment for a vast majority of the proceeding and was unable to provide
consistency, stability, and permanency at the time of termination. Indeed, at the time of
termination, respondent-mother lacked stable income and housing, was attempting to maintain her
tenuous sobriety, and had been charged with assault and battery.
Meanwhile, AF and KF were doing well in their placement, where they had the opportunity
to achieve permanency and stability. The record supports that AF and KF were bonded to their
foster parents, with whom they had been placed since May 24, 2017. AF expressed that he wanted
to remain in the foster home and was “very adamant that he want[ed] to be adopted.” Although
KF wanted to be reunified with respondent-mother, he believed that it would be a “win situation
either way if he went home to his mom or stayed” in the foster home. Importantly, AF and KF’s
therapist testified that AF risked permanent psychological damage if he was not provided with
consistency, permanency, and stability in the very near future. As of the May 30, 2019 best-
interest hearing, AF had been suspended from school because he had threatened to bring a gun to
school and shoot a classmate’s parent. AF’s foster mother attributed this behavior to extreme
stress.
Although respondent-mother is correct that the trial court found that it was not in BF’s best
interests for respondent-mother’s parental rights to be terminated to him, this argument is
inapposite. When deciding best interests, “the trial court has a duty to decide the best interests of
each child individually.” In re Olive/Metts, 297 Mich App at 42. In this case, the trial court clearly
considered each child’s individual needs and determined that the needs of BF, AF, and KF differed.
This finding is supported by the record.
BF is 21 months older than AF and KF. During the proceeding, BF repeatedly expressed
that he missed his family. BF’s therapist testified that BF was not happy in his foster home, that
he wanted to return to respondent-mother’s care, and that it would be damaging for him to not
return to respondent-mother’s care. In contrast, AF and KF were content in their foster home, and
AF indicated that he wanted to be adopted. According to AF’s therapist, it was in AF’s best
interests to remain in his foster home; the therapist noted that AF began shaking and tearing up
when the possibility of returning to respondent-mother’s care was broached. Testimony supported
that AF and KF’s foster parents were dedicated to their care and were interested in adopting them.
Although the trial court’s decision resulted in AF and KF being separated from BF, they had been
placed in separate homes for a vast majority of the proceeding. AF and KF’s therapist also believed
that AF and KF should not be separated because they relied on each other for support and that they
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were not especially bonded with BF. Importantly, AF indicated that he did not want to live in the
same home as BF. This evidence is supported by the testimony of AF and KF’s foster mother.
Moreover, all of the children had mental health issues and had not been in respondent-
mother’s care since October 13, 2016. Respondent-mother was still in the process of completing
Felony Drug Court and securing steady employment and income. Additionally, respondent-
mother testified that she needed to put herself first in order to maintain her sobriety and that she
was still building “a foundation.” Given this testimony and respondent-mother’s history, it is
unlikely that respondent-mother would have been able to continue making progress while caring
for all of the children and their extensive needs. Indeed, during most of the proceeding,
respondent-mother struggled with managing all three of the children during the one-hour parenting
times. Additionally, given respondent-mother’s transportation issues throughout the proceeding,
it is unclear if respondent-mother would be able to bring all of the children to school and to their
mental health appointments. For these reasons, we conclude that the trial court did not clearly err
by finding that termination of respondent-mother’s parental rights to AF and KF was in their best
interests.
B. RESPONDENT-FATHER (DOCKET NO. 349761)
1. STATUTORY GROUNDS
Respondent-father argues that the trial court clearly erred by finding that statutory grounds
existed to terminate his parental rights to AF and KF. We conclude that the trial court did not
clearly err by finding that grounds for terminating respondent-father’s parental rights were
established under MCL 712A.19b(3)(c)(i), which provides 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 either of the following:
(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.
This Court has previously held that termination was proper under (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 at 272.
In this case, at the time of termination, “182 or more days” had “elapsed since the issuance
of [the] initial dispositional order” with respect to respondent-father. See MCL 712A.19b(3)(c)(i).
Furthermore, the record establishes that respondent-father had not accomplished any meaningful
change in the condition that led to adjudication, i.e., his inability to provide proper care and custody
to AF and KF.
Respondent-father had not been actively involved in AF and KF’s lives since he became
incarcerated in 2013 for unarmed robbery, possession of a firearm during commission of a felony,
felon in possession of firearm, and larceny of a firearm. He continued to be incarcerated
throughout the lengthy proceeding. Although respondent-father could have provided for AF and
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KF’s care and custody during the proceeding “by voluntarily granting legal custody to his relatives
during [the] remaining term of [his] incarceration,” In re Mason, 486 Mich 142, 163; 782 NW2d
747 (2010), none of the relatives that respondent-father named were able or willing to provide
appropriate care. Consequently, AF and KF remained in foster care throughout the proceeding.
Additionally, while respondent-father attempted to provide emotional support to AF and KF by
sending them letters and by engaging in telephone conversations with them, AF did not enjoy these
interactions. Indeed, he expressed fear that respondent-father was going to “take” him. Thus, the
totality of the evidence amply supports that respondent-father had not accomplished any
meaningful change in the condition that led to adjudication. See In re Williams, 286 Mich App at
272.
Furthermore, the record clearly establishes that there was no reasonable likelihood that the
condition that led to adjudication would “be rectified within a reasonable time considering the
child[ren]’s age[s].” See MCL 712A.19b(3)(c)(i). At the time of termination, the earliest that
respondent-father would be released from prison was March 2020, and he had not named any
family members who were able and/or willing to care for the children.
Respondent-father testified that he would have to locate housing and employment after he
was released from prison. He also acknowledged that he would not be able to obtain financial
support from family members. Although respondent-father testified that he had job skills, it is
unclear what type of employment respondent-father would be able to obtain given his criminal
history. Additionally, there is no evidence that respondent-father had ever provided substantial
support for his children. AF and KF, who had been in care for 2-1/2 years of their young lives,
desperately required consistency, permanency, and stability. Given AF and KF’s need for
permanency, they could not wait an indefinite amount of time for respondent-father to be able to
provide them with proper care and custody. See, e.g., In re Dahms, 187 Mich App 644, 647-648;
468 NW2d 315 (1991) (holding that, because the Legislature did not intend for children to be left
in foster care indefinitely, it is proper to focus on how long it will take a respondent to improve
and on how long the involved children can wait). The trial court’s finding that termination was
proper pursuant to 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.9
See In re HRC, 286 Mich App at 461.
In reaching this conclusion, we reject respondent-father’s argument that termination was
improper because he was “provided insufficient services.” Because this issue is unpreserved, In
re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012), our review is limited to plain error
affecting respondent-father’s substantial rights, Randolph, 502 Mich at 10.
9
Although respondent-father cites In re Mason to support that termination was improper, the facts
in In re Mason are distinguishable from the facts herein. The respondent in In re Mason had
directed placement of the children with his mother during the proceeding, had employment and
appropriate housing set up for when he was released from prison, had financially provided for the
children in the past, and had a relationship with the children before the child protective proceeding
was initiated. In re Mason, 486 Mich at 147-148, 150-151.
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In arguing that he was provided with insufficient services, respondent-father fails to explain
or rationalize what services petitioner could have provided to him while he was incarcerated.
Indeed, as noted by the trial court, it could not order the Michigan Department of Corrections to
provide services to respondent-father if the services were not available in the prison. Even so, the
record supports that respondent-father was able to participate in some services. Importantly,
respondent-father testified at the termination hearing that he was able to participate in a parenting
class and that he had benefitted from the parenting class. Respondent-father also testified that he
had participated in substance abuse classes and had taken classes that would assist him with getting
employment once he was released from prison. Additionally, aside from the Family Dependency
Drug Court hearings, respondent-father participated in all of the hearings via video and/or
telephone, and he was able to have weekly telephone contact with AF and KF beginning in 2017.
Respondent-father was also provided with counsel, and the record supports that the caseworker
kept in contact with respondent-father after the trial court obtained jurisdiction and that the
caseworker contacted the prison to determine what services were available to respondent-father.
Moreover, the trial court did not terminate respondent-father’s parental rights because he did not
participate in services. Cf. In re Mason, 486 Mich at 150, 163. Rather, the trial court terminated
respondent-father’s parental rights because he could not provide proper care or custody for the
children. Consequently, we conclude that respondent-father has failed to establish plain error
affecting his substantial rights.
2. BEST INTERESTS
Respondent-father argues that the trial court erred by finding that termination of his
parental rights was in AF and KF’s best interests. We disagree.
“In making its best-interest determination, the trial court may consider the whole record,
including evidence introduced by any party.” In re Medina, 317 Mich App at 237 (quotation marks
and citation omitted).
[T]he court should consider a wide variety of factors that may include 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. The trial court may also consider . . . the parent’s compliance with
his or her case service plan, the parent’s visitation history with the child, the
children’s well-being while in care, and the possibility of adoption. [In re White,
303 Mich App at 713-714 (quotation marks and citations omitted).]
In this case, respondent-father became incarcerated in 2013 when AF and KF were very
young. AF and KF did not remember respondent-father being involved in their lives and even
asked one of the caseworkers to describe what respondent-father looked like to them. Although
respondent-father attempted to emotionally connect with AF and KF via telephone calls and letters,
the record supports that these communications were “superficial.” AF repeatedly expressed that
he did not want to communicate with respondent-father. During the weekly telephone call, AF
would often leave the room, play with a loud toy “to interrupt the phone call,” or not “talk at all.”
AF also would have behavioral issues at school after the weekly telephone calls and had requested
that his foster parents wait outside the bathroom while he showered because he was afraid that
respondent-father would “take” him. AF also exhibited anxiety about what would happen in
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March 2019 because he was aware that respondent-father was eligible for parole at that time.
Although KF interacted with respondent-father during the phone calls, he rarely talked about him
and did not seem to believe that he would ever be placed with respondent-father. Thus, while it is
clear that respondent-father loves AF and KF, the evidence does not support that AF and KF were
bonded to him.10
Given the amount of time that they had spent in care, AF and KF required consistency,
stability, and permanency. Respondent-father, who was imprisoned throughout the proceeding,
was unable to provide this to them at the time of termination. Indeed, respondent-father’s attempts
to have them placed with relatives were unsuccessful and it was unknown when or if respondent-
father would be granted parole. Meanwhile, AF and KF were doing well in their pre-adoptive
placement, where they had the opportunity to achieve permanency and stability. The record
supports that the children were bonded to their foster parents and that AF wished to be adopted.
The record further supported that it would be harmful to separate AF and KF. Although the trial
court determined that it was not appropriate to terminate respondent-father’s parental rights to BF,
BF’s needs were different from that of AF and KF for the reasons already discussed in Docket No.
349545. See In re Olive/Metts, 297 Mich App at 42. Moreover, BF remembered respondent-
father from before he was imprisoned and expressed happiness that he was having contact with
respondent-father during the proceeding. For these reasons, we conclude that the trial court did
not clearly err by finding that termination of respondent-father’s parental rights to AF and KF was
in their best interests.
Affirmed in both dockets.
/s/ Anica Letica
/s/ Michael J. Riordan
/s/ Thomas C. Cameron
10
Respondent-father complains that his letters were withheld from the children at times during the
proceeding. However, respondent-father does not cite any authority to support that termination
was improper as a result of this. To the extent that respondent-father argues that the withholding
of the letters resulted in his bond being damaged with AF and KF, the record supports that the lack
of bond was related to the fact that respondent-father had been incarcerated for a majority of AF
and KF’s young lives.
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