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UNPUBLISHED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 S. J. HRYMECKI, Minor. November 9, 2021
No. 357145
Bay Circuit Court
Family Division
LC No. 19-012944-NA
Before: SWARTZLE, P.J., and SAWYER and LETICA, JJ.
PER CURIAM.
Respondent-father appeals as of right the trial court’s March 30, 2021 order terminating
his parental rights to the minor child, SJH.1 Respondent-father’s parental rights were terminated
pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g)
(failure to provide proper care and custody), (h) (parent is imprisoned for such a period that the
child would be deprived of a normal home for more than two years), and (j) (reasonable likelihood
of harm if returned to parent). We affirm.
I. BACKGROUND
This case began when emergency personnel were called to a motel room because SJH’s
mother was found unconscious as a result of a drug overdose while SJH was present in the room.
Respondent-father was incarcerated at the time that this occurred, so SJH was placed in foster care.
Respondent-father remained incarcerated for the duration of the case with an earliest release date
of September 2022. Respondent-father participated in services that were available to him, but the
onset of the pandemic and his incarceration limited his options. When SJH’s mother failed to
comply with or benefit from the case service plan, the Department of Health and Human Services
(DHHS) sought termination of the parental rights of both parents.
1
The parental rights of SJH’s mother were also terminated pursuant to this order, but she is not a
party to this appeal.
-1-
II. DISCUSSION
Respondent-father first argues that petitioner failed to establish the statutory grounds for
termination by clear and convincing evidence. We disagree. We review for clear error a trial
court’s finding “that a ground for termination has been proven by clear and convincing
evidence . . . .” In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012) (quotation
marks and citations omitted).
We note that we cannot affirm the lower court’s finding that petitioner established MCL
712A.19b(3)(g) because the court, in so finding, applied an outdated version of this statutory
provision. MCL 712A.19b(3)(g) was amended effective June 12, 2018. See 2018 PA 58. Under
the version of the statute in effect before these proceedings were initiated, termination was
appropriate if “[t]he 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.” MCL 712A.19b(3)(g) (emphasis
added). However, under the current version of the statute, which was in effect at the time of the
termination order, termination is appropriate if “[t]he parent, although, in the court’s discretion,
financially able to do so, 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.” MCL 712A.19b(3)(g) as amended by 2018 PA 58
(emphasis added). Because the court applied the previous version of the statute, it has not been
established whether respondent was financially able to provide for the minor children’s care and
custody. However, “[o]nly one statutory ground need be established by clear and convincing
evidence to terminate a respondent’s parental rights, even if the court erroneously found sufficient
evidence under other statutory grounds.” In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).
Therefore, this error is not dispositive.
The termination of respondent-father’s parental rights was appropriate under MCL
712A.19b(3)(c)(i), which provides:
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 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.
Termination pursuant to subsection (c)(i) is appropriate when “the totality of the evidence”
supports a finding that the parent “had not accomplished any meaningful change in the conditions”
that led to adjudication. In re Williams, 286 Mich App 253, 272; 779 NW2d 286 (2009).
Additionally, the court must find that “there is no reasonable likelihood that the conditions will be
-2-
rectified within a reasonable time considering the child’s age.” MCL 712A.19b(3)(c)(i). The
determination of what constitutes a reasonable time includes both how long the parent will take to
improve the conditions and how long the child can wait for the improvements to occur. In re
Dahms, 187 Mich App 644, 648; 468 NW2d 315 (1991).
At the outset of this case, the primary barrier to reunification with respondent-father was
his incarceration and corresponding inability to provide care for SJH. Substance abuse, mental
health, and stability were also identified as barriers to reunification. The termination trial was
concluded approximately 16 months after the initial petition was filed, and the circumstances
surrounding SJH’s removal had essentially gone unchanged. Respondent-father remained
incarcerated, and his earliest release date was not until September 1, 2022—approximately 17
months after the date of termination. Stability also remained an issue as respondent-father had
failed to maintain communication with SJH and would need to find housing and employment upon
his release from incarceration. Finally, while respondent-father appeared to be doing the best that
he could to work on his mental health and substance abuse issues while incarcerated, it was
impossible for DHHS to assess whether he would be able to maintain any meaningful progress
when in the community and outside the prison setting. Respondent-father’s earliest release date
was not until September 1, 2022, and at that point respondent-father would need to find housing
and employment while demonstrating continued sobriety and stability. Meanwhile, SJH was less
than five years old, had been in foster care for most of his life, and had formed strong bonds with
his foster family. Multiple witnesses testified that they supported termination of respondent-
father’s parental rights because SJH needed permanence and stability. Finally, it is undisputed
that more than 182 days elapsed between the initial dispositional order and the termination trial,
as is required by this provision.
Because respondent-father’s incarceration was the primary barrier to reunification, it is
important to note that incarceration cannot be the sole basis for termination of parental rights. An
incarcerated parent “can achieve proper care and custody through placement of the child with a
relative.” In re Baham, 331 Mich App 737, 754; 954 NW2d 529 (2020) (quotation marks, citation,
and alteration omitted). However, respondent-father failed to do so. Respondent-father argues
that he anticipated that SJH would be cared for by respondent-mother and that he could not have
anticipated that she would relapse. Regardless of whether this is true, the fact that respondent-
father may have attempted to provide for SJH’s care does not change that he failed to do so.
Respondent-father did have a sister who expressed willingness to care for and perhaps adopt SJH.
However, respondent-father never actually directed placement with his sister. In fact, he testified
that he had never even spoken with his sister about the possibility of her taking custody of SJH.
Respondent-father also had a cousin who, of her own volition, requested placement of the child,
but she eventually retracted this request.
Because we affirm the court’s finding that petitioner established MCL 712A.19b(3)(c)(i)
we need not address whether the court’s findings concerning the other grounds were erroneous.
Respondent-father next argues that the court erred by finding that termination of his
parental rights was in SJH’s best interests. We disagree. We review a trial court’s finding that
termination is in the child’s best interests for clear error. Olive/Metts, 297 Mich App at 40.
-3-
If the trial court finds that a statutory ground for termination of parental rights has been
established, it must order termination of parental rights only if it finds that doing so is in the best
interests of the child. MCL 712A.19b(5); Olive/Metts, 297 Mich App at 40. In making this
finding, the trial court may consider factors such as “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.” Id. at 41-42. (citations omitted). Other factors that the trial
court can consider include the parent’s compliance with the service plan and the parent’s visitation
history. In re White, 303 Mich App 701, 713-714; 846 NW2d 61 (2014). The trial court may
choose termination of parental rights over placement with a relative if it finds that doing so is in
the best interests of the child. Id. at 43. A best-interests analysis focuses on the child rather than
the parent. In re Moss, 301 Mich App 76, 87; 836 NW2d 182 (2013). “[W]hether termination of
parental rights is in the best interests of the child must be proved by a preponderance of the
evidence.” Id. at 90.
The trial court’s finding that termination of respondent-father’s parental rights was in the
best interests of SJH was supported by the record. SJH did not have a strong bond with respondent-
father, and SJH’s foster mother was not certain that SJH even understood that respondent-father
was his biological father. This problem was exacerbated by the fact that respondent-father
contacted SJH only three times during the pendency of this case. DHHS was unable to assess
respondent-father’s parenting ability because of his incarceration, but even respondent-father
acknowledged that the foster parents had done an excellent job caring for SJH. SJH was very close
with his foster family and referred to his foster parents as mom and dad. Finally, the caseworker
and SJH’s therapist each testified that termination was in SJH’s best interests because he needed
permanence and finality, and the foster parents, who had been caring for SJH for most of his life,
were willing to adopt SJH.
Affirmed.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Anica Letica
-4-