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UNPUBLISHED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 BOURBEAU, Minors. December 22, 2022
No. 360286
Oakland Circuit Court
Family Division
LC No. 2015-832568-NA
Before: HOOD, P.J., and SWARTZLE and REDFORD, JJ.
PER CURIAM.
Respondent appeals as of right1 the order terminating his parental rights to his two minor
children, AJB and CMB, under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication
continue to exist) and (j) (reasonable likelihood of harm). We affirm.
I. BACKGROUND
Respondent and his ex-wife, MB,2 are the parents of two children: AJB and CMB. In 2015,
petitioner, the Michigan Department of Health and Human Services (MDHHS), filed petitions
relating to each child seeking removal. Among other allegations, MDHHS alleged that respondent
and MB engaged in domestic violence in AJB’s presence, that respondent verbally and physically
abused AJB, that, because of inadequate supervision, CMB sustained injuries caused by AJB, that
respondent’s home—where he lived with his own parents—was not appropriate for the children,
and that CMB had been living with his maternal grandmother almost since his birth.
1
This case is before us for the second time. Previously, this Court affirmed the termination of
respondent’s parental rights. In re Bourbeau, unpublished per curiam opinion of the Court of
Appeals, issued October 14, 2021 (Docket No. 356222), vacated and remanded by 969 NW2d 344
(Mich, 2022). As explained later, however, the Supreme Court vacated this Court’s judgment and
remanded to us for a “new appeal.” In re Bourbeau, 969 NW2d 344 (Mich, 2022).
2
MB was initially a respondent in this proceeding. In 2017, however, she agreed to termination
of her parental rights, and she is not a party on appeal.
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Respondent pleaded no contest, and the trial court assumed jurisdiction. The initial case
service plan, adopted by the trial court in October 2015, provided respondent with supervised
visitation with the children. The plan also required him to locate and maintain appropriate housing,
maintain a legal source of income, participate in drug and alcohol screening, and participate in
anger-management and individual therapy.
In October 2016, MDHHS filed a supplemental petition to terminate respondent’s and
MB’s parental rights under MCL 712A.19b(3)(c)(i), (g), and (j). It alleged that respondent was
not making enough progress on his case service plan. Particularly, he failed to obtain suitable
housing, comply with and benefit from anger-management services, undergo a forensic
assessment, submit to drug screens, and benefit from parenting classes. After several days of
hearings between January 2017 and October 2017, the trial court declined to terminate
respondent’s parental rights. By that time, respondent had obtained suitable housing and
maintained gainful employment. There was also no evidence of drug use, despite 26 drug screens.
Although there were some initial concerns, respondent also consistently attended parenting-time
visits, completed parenting classes, and participated in therapy and anger-management services.
According to his therapist, Dr. James Eisenstadt, Ph.D., respondent was benefiting from those
services. The trial court concluded that MDHHS failed to establish grounds for termination under
MCL 712A.19b(3)(c)(i) and (g) because respondent had resolved some of the issues (such as
obtaining housing and maintaining employment) leading to the adjudication, and had made
objective and positive gains in other areas (such as parenting skills and anger management).
Consequently, the trial court rejected MDHHS’s assertion that respondent would not be able to
resolve the remaining issues, nor provide proper care and custody within a reasonable time
considering the children’s ages.
In contrast, the trial court found that termination was warranted under MCL 712A.19b(3)(j)
because respondent was not fully compliant with his parent-agency agreement and had not fully
resolved all his issues. Although the trial court found grounds for termination under
MCL 712A.19b(3)(j), the trial court determined that termination was not in the children’s best
interests. The court found that that the children shared a bond with respondent and that respondent
was making progress toward reunification. Thus, the trial court did not terminate respondent’s
parental rights in 2017.
Dispositional review hearings resumed in December 2017 and continued through
May 2019. At the hearing in December 2017, the court adopted an updated case service plan under
which services aimed at reunification continued, including supervised parenting-time visits, a new
parenting education program, and therapy with Dr. Eisenstadt. Respondent was also required to
maintain suitable housing and continue to provide proof of employment. Substance-abuse
monitoring requirements were, however, removed from the updated case service plan. The
children remained in their respective placements.
Initial reports of respondent’s compliance and benefit from the new plan were positive. In
February 2018, for example, the trial court noted that respondent showed “fairly significant
compliance” and indicated “we’re going down a very positive path . . . .” In 2018, respondent
received more expanded parenting time, including visits that were supervised by a designee (either
respondent’s girlfriend or brother) rather than MDHHS or an agency. At a review hearing in
February 2019, however, Jefferson Bach, a newly-assigned foster-care worker, reported that there
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had been “multiple” Children’s Protective Services (CPS) allegations made against respondent
involving allegations of physical abuse against both children. This included a total of 12
complaints in the preceding year. Because of safety concerns, MDHHS moved the visits back to
being supervised by MDHHS and Catholic Charities, an agency.
In May 2019, MDHHS filed a second supplemental petition, again seeking to terminate
respondent’s parental rights under MCL 712A.19b(3)(c)(i), (g), and (j). In relevant part, it alleged
that respondent failed to benefit from the updated case service plan regarding parenting and anger
management, as demonstrated by his continued use of physical discipline and times when he “lost
his temper” with the children. Citing the CPS complaints against respondent, MDHHS alleged it
had “serious concerns” about respondent’s parenting skills. Asserting that respondent failed to
rectify the parenting-skills and anger-management issues that led to adjudication, MDHHS also
alleged that the children faced a risk of harm if returned to respondent’s care.
The termination hearings in this case were held over 20 days, beginning in August 2019
and ending in February 2020. In late November 2020, the trial court issued an 85-page written
opinion regarding termination of respondent’s parental rights. Regarding reunification efforts, the
trial court concluded that MDHHS fulfilled its obligation to make reasonable efforts. Rejecting
respondent’s contention that the caseworkers failed to make reasonable efforts because they were
biased against him, the court instead found that respondent had failed to benefit from those efforts.
The trial court declined to terminate respondent’s parental rights under MCL 712A.19b(3)(g)
because MDHHS failed to present any evidence regarding respondent’s financial ability to provide
care and custody for the children.3 Nevertheless, the trial court found statutory grounds for
termination under MCL 712A.19b(3)(c)(i) and (j). The trial court also concluded that termination
was in the children’s best interests. Later, in December 2020, the trial court entered a separate
order, terminating respondent’s rights to both children.4
In February 2021, respondent appealed to this Court by delayed leave granted, and a panel
of this Court affirmed the termination of respondent’s parental rights. See In re Bourbeau,
unpublished per curiam opinion of the Court of Appeals, issued October 14, 2021 (Docket
No. 356222), vacated and remanded by 969 NW2d 344 (Mich, 2022). Proceeding in propria
persona, respondent sought leave to appeal in the Michigan Supreme Court. The Supreme Court
determined that respondent was denied the effective assistance of appellate counsel during his
previous appeal, and in lieu of granting leave, the Supreme Court vacated this Court’s judgment
and remanded to this Court for a “new appeal.” In re Bourbeau, 969 NW2d 344 (Mich, 2022).
The case is now before us again for the new appeal ordered by the Supreme Court.
3
Under MCL 712A.19b(3)(g), a trial court may terminate parental rights when “[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.” (Emphasis added.)
4
The trial judge who terminated respondent’s parental rights in 2020 was not the same judge who
denied termination in 2017. The case was assigned to multiple judges and referees over the course
of these lengthy proceedings.
-3-
II. STANDARDS OF REVIEW
This Court reviews for clear error a trial court’s decision whether reasonable efforts were
made. In re Sanborn, 337 Mich App 252, 258; 976 NW2d 44 (2021). We also review for clear
error the trial court’s decision that statutory grounds for termination have been proven by clear and
convincing evidence, as well as its determination that termination is in a child’s best interests. In
re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). “A trial court’s decision is
clearly erroneous if although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been made.” Id. “This
Court gives deference to a trial court’s special opportunity to judge the weight of the evidence and
the credibility of the witnesses who appear before it.” In re TK, 306 Mich App 698, 710; 859
NW2d 208 (2014).
“Once a statutory ground for termination has been proven, the trial court must find that
termination is in the child’s best interests before it can terminate parental rights.” In re Olive/Metts
Minors, 297 Mich App at 40. “[W]hether termination of parental rights is in the best interests of
the child must be proved by a preponderance of the evidence.” In re Moss, 301 Mich App 76, 90;
836 NW2d 182 (2013). If there are multiple children, and “if the best interests of the individual
children significantly differ,” the trial court should address the children’s best interests
individually. In re White, 303 Mich App 701, 715; 846 NW2d 61 (2014) (emphasis in original).
Unpreserved issues, on the other hand, “are reviewed for plain error affecting substantial
rights.” In re Sanborn, 337 Mich App at 258 (quotation marks and citation omitted). “To avoid
forfeiture under the plain error rule, three requirements must be met: 1) the error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” Id. (quotation marks and citation omitted). “Generally, an error affects substantial rights
if it caused prejudice, i.e., it affected the outcome of the proceedings. Id. (quotation marks and
citation omitted).
III. REASONABLE EFFORTS
On appeal, respondent argues that the trial court clearly erred by concluding that MDHHS
fulfilled its obligation to make reasonable efforts to reunify respondent with his children. We
disagree.
A. LEGAL STANDARDS FOR REASONABLE EFFORTS
Absent certain aggravated circumstances not at issue in this case, MDHHS “has an
affirmative duty to make reasonable efforts to reunify a family before seeking termination of
parental rights.” In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637 (2017). See also
MCL 712A.19a(2). Federal law similarly requires states to “make reasonable efforts . . . to
preserve and unify families in order both to prevent a child’s removal from his home and to make
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it possible for the child to safely return to his home.”5 In re Rood, 483 Mich 73, 104; 763 NW2d
587 (2009) (opinion by CORRIGAN, J.) (quotation marks and citations omitted). As part of its
reasonable efforts, MDHHS is required to “create a service plan outlining the steps that both it and
the parent will take to rectify the issues that led to court involvement and to achieve reunification.”
In re Hicks/Brown, 500 Mich at 85-86. See also MCL 712A.18f(3)(b) and (c). The plan must set
forth a “[s]chedule of services to be provided to the parent, child, and if the child is to be placed
in foster care, the foster parent, to facilitate the child’s return to his or her home or to facilitate the
child’s permanent placement.” MCL 712A.18f(3)(d). MDHHS must prepare an initial case
service plan “no later than 30 days after the [child’s] placement.” MCR 3.965(D)(1). See also
MCL 712A.13a(10)(a). “If a child continues in placement outside of the child’s home, the case
service plan shall be updated and revised at 90-day intervals . . . .” MCL 712A.18f(5).
It is not, however, enough for MDHHS to simply prepare and update case service plans.
MDHHS and the trial court must ensure that a parent has a “meaningful opportunity to comply
with a case service plan.” In re Mason, 486 Mich 142, 169; 782 NW2d 747 (2010) (emphasis
added). If MDHHS fails to make reasonable efforts, termination of a parental rights will be
premature. Id. At the same time, although MDHHS must “expend reasonable efforts to provide
services to secure reunification, there exists a commensurate responsibility on the part of
respondents to participate in the services that are offered.” In re Frey, 297 Mich App 242, 248;
824 NW2d 569 (2012).
B. CASE SERVICE PLANS
Respondent raises several challenges to the efforts made by MDHHS in this case. First,
respondent contests whether MDHHS fulfilled its obligation to prepare an initial case service plan
and to update that plan. More specifically, respondent notes that an initial case service plan does
not appear in the confidential file in this case and that the confidential file does not contain all the
updated case services plans that should have been prepared during the pendency of this case.
Although there are some subsequent plans in the record, respondent notes potential problems, such
as missing signatures from the plans, and respondent appears to challenge whether the updated
plans were duly presented to the trial court in 90-day intervals. This issue is unpreserved because
respondent failed to raise it in the trial court. See In re Atchley, ___ Mich App ___, ___; ___
NW2d ___ (2022) (Docket Nos. 358502 and 358503); slip op at 2.
5
As emphasized by respondent on appeal, in 2006, a class action was filed in federal court, alleging
systemic deficiencies in Michigan’s child-welfare practices. See Dwayne B v Granholm, Case No
2:06–CV–13548 (ED Mich), filed August 8, 2006. That lawsuit resulted in a settlement, approved
by the federal district court in 2008, to “advance the public interest by reforming and improving
the foster care system in Michigan.” Dwayne B v Granholm, opinion of the United States District
Court for the Eastern District of Michigan, issued October 24, 2008 (Case No. 06-13548). That
settlement agreement has since been modified, and monitoring of Michigan’s foster-care program
pursuant to the Dwayne B agreement remains ongoing. See State of Michigan, Child Welfare
Reform (accessed
December 1, 2022).
-5-
Respondent is correct that the confidential file in this case does not contain all the case
service plans that it should.6 That said, respondent’s claims of error relating to the missing case
service plans are unpreserved, and respondent has not shown plain error affecting his substantial
rights. Despite the absence of early case service plans from the record, the possibility of poor
recordkeeping, and other potential irregularities in the record,7 the record nevertheless supports
that respondent was provided with case service plans and that, ultimately, respondent was aware
of his obligations under the case service plans.
The court repeatedly addressed requirements for the case service plans on the record with
respondent present during the hearings throughout the case, beginning with adoption of the initial
plan at the initial dispositional hearing in 2015. The record contains written case service plans
signed by respondent, beginning in May 2018. And, in January 2020, during his testimony at the
termination hearing, respondent acknowledged that he received case service plans from
caseworkers throughout the case, including from Shelby Berkowski, who handled the case early
on, and later from Bach, who took over the case in 2018. Respondent specifically acknowledged
receiving and signing the initial case service plan. He also testified that, beginning in 2015, he
participated in services required in the plans, including therapy, parenting classes, and drug testing.
Overall, although there are written plans missing from the record, the court informed respondent
of his obligations under the case service plans and he participated in services as required by those
plans. Respondent, therefore, has not satisfied the plain-error standard for this unpreserved claim,
because he has not established that an error occurred.
6
MDHHS concedes that plans from 2015 through early 2017 are missing from the record. It
attempts to explain this omission by asserting that there was “an issue” during a “paper-to-
electronic recordkeeping transition” and that the plans exist somewhere in paper form. MDHHS
has not, however, provided this Court with any paper records to support this assertion, and there
is no evidence in the electronic record that has been presented for this Court’s review to support
that all the plans were properly included in the confidential file. See MCR 7.210(A) (“Appeals to
the Court of Appeals are heard on the original record.”). The only plan MDHHS identifies as
having been added to the electronic file at some point is what MDHHS asserts was the initial case
service plan in this case, signed by an MDHHS supervisor on September 2, 2015. If this is the
only initial case service plan, then it is facially lacking as it lists CMB as the only child and includes
no discussion of AJB whatsoever. Regardless, as MDHHS concedes, there are numerous missing
updated plans, and the initial plan relating to CMB does not cure these numerous defects. In short,
MDHHS’s “paper-to-electronic recordkeeping” explanation for the missing documents is not
supported by the record.
7
There are, for example, plans on which respondent’s signature does not appear. See In re Mason,
486 Mich at 156-157 & n 8 (discussing procedures in the Michigan Foster Care Manual regarding
parent’s signatures and noting the conspicuous absence of the respondent’s signature from the case
service plan).
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C. SERVICES PROVIDED
1. LEGITIMATE EFFORTS TOWARD REUNIFICATION
Respondent also challenges the adequacy of the services provided by MDHHS. He
generally asserts that the services were not “legitimate” or “actual.” i.e., he appears to challenge
the sincerity of MDHHS’s efforts and whether it truly had reunification in mind as the goal of the
case.8 He broadly characterizes Michigan’s foster-care system as “despicable and uncaring,
dangerous, and destructive of birth families,” and he contends that MDHHS could not “tolerate”
respondent’s progress in this case, choosing instead to scrutinize respondent “to the point of
absurdity” and to hold respondent to a “ridiculously high standard” with the aim of terminating his
rights. In the trial court, respondent presented evidence and argument to support this assertion.
For example, in his testimony, he described a lack of communication from MDHHS and his
frustration at not receiving more parenting time. He also discussed his sense of being judged and
criticized during parenting time rather than helped and advised, as well as the camaraderie he saw
between the caseworkers and the foster parents. Respondent also described comments by the foster
parents, and even caseworkers, suggesting that the goal in this case—from the outset—was
adoption and not reunification of the children with respondent. According to respondent’s
testimony, one of the caseworkers involved with the case early in the proceedings openly told
respondent that she could not wait for his rights to be terminated.
The trial court chose not to credit respondent’s testimony and rejected his theory that
MDHHS was biased against him. The trial court chose instead to credit the testimony of
caseworkers who asserted that they offered respondent “all reasonable services,” which included
parenting time, therapy, family therapy, and parenting classes. Deferring to the trial court’s
credibility assessment, see In re TK, 306 Mich App at 710, as we must, respondent has not shown
clear error on this basis.
Apart from his contention that MDHHS did not make legitimate efforts toward
reunification, respondent identifies a few specific areas in which he believes MDHHS failed to
make reasonable efforts. We address each in turn.
2. TRANSPORTATION ASSISTANCE
First, respondent asserts that MDHHS did not provide him transportation assistance. In
this regard, respondent testified at the January 13, 2020 termination hearing that MDHHS provided
transportation assistance for AJB’s foster parents, i.e., MDHHS transported AJB to visits. But,
according to respondent, MDHHS did not offer respondent transportation assistance, meaning that
if he had car trouble or issues with transportation, his visits were canceled unless he came up with
his own backup plan. This issue, which respondent did not raise until the termination hearing, is
8
Unlike most of respondent’s challenges to MDHHS’s efforts, this issue was raised by respondent
in the trial court; it was respondent’s theory of the case, beginning early in the proceedings, that
MDHHS was not actually attempting to engage respondent in services. This issue is preserved.
See In re Atchley, ___ Mich App at ___; slip op at 2.
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unpreserved because respondent failed to raise it in a timely manner, see In re Atchley, ___ Mich
App at ___; slip op at 2, and respondent has not shown plain error.
From the record, it is not clear that respondent actually needed transportation assistance.
Based on respondent’s testimony, it appears that he had a car, and he attended the majority of
parenting-time visits and other services in this case, suggesting that transportation was not an
obstacle for him. Although anyone can have car trouble, a mere possibility of car trouble does not
mean that the respondent needed transportation assistance. Moreover, even if MDHHS was remiss
in failing to aid respondent with transportation, given that respondent in fact attended almost all
the visits and services in this case, he has not shown that transportation assistance would have
allowed him to fair better. See In re Sanborn, 337 Mich App at 264. Accordingly, respondent
cannot show plain error on this basis.
3. INCLUSION IN CHILDREN’S APPOINTMENTS
Second, respondent is not entitled to relief on the basis that MDHHS failed to include him
on appointments for the children. Respondent raised this issue at a hearing on May 16, 2018, when
his attorney asked that respondent be allowed to attend appointments, such as medical and dental
visits, for the children. MDHHS did not object, and the trial court stated that respondent should
be given the details about appointments. In short, the issue was raised in the trial court and resolved
in respondent’s favor. Respondent did not thereafter challenge MDHHS’s efforts to keep
respondent apprised of the children’s appointments, and he offered no evidence that MDHHS
failed to include him. To the contrary, according to AJB’s foster mother, respondent was invited
to attend AJB’s medical appointments, dental appointments, and school meetings. Except for one
school meeting, respondent did not attend these events. The credibility of this testimony was for
the trial court to decide. See In re TK, 306 Mich App at 710. And, the record does not support
respondent’s claim that he was denied information about the children’s appointments, nor has he
shown that MDHHS failed to make reasonable efforts on this basis.
4. MEDICAL EVALUATIONS
Third, respondent argues that MDHHS failed to obtain appropriate medical evaluations for
the children to address various issues, including the children’s attention deficit hyperactivity
disorder (ADHD) diagnoses, possible autism, AJB’s extreme aggression and post-traumatic stress
disorder (PTSD) diagnosis, and attachment disorder diagnoses. According to respondent, the
social workers and other providers who testified were unqualified to meet the children’s needs,
and MDHHS should have instead sought medical intervention. Respondent failed to timely raise
this issue in the trial court, so the issue is unpreserved. See In re Atchley, ___ Mich App at ___;
slip op at 2. Respondent has not shown plain error on this basis.
As part of reasonable efforts, MDHHS must provide services to the parent and the child to
facilitate the child’s return to the home. See MCL 712A.18f(3)(d).9 In this case, MDHHS
9
See also MCL 712A.18(1)(f) (recognizing the trial court’s authority to order “medical, dental,
surgical, or other health care” during the dispositional phase of proceedings); MCL 722.958b(3)(i)
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presented evidence that the children received appropriate medical care, dental care, and
psychological services, including services to address the children’s diagnoses and aggression.
Respondent now claims those services were inadequate. There is, however, nothing in the record
to support that services that should have been offered to the children were denied them or that, had
additional services been offered, respondent would have fared better in his efforts toward
reunification. See In re Sanborn, 337 Mich App at 264. In short, respondent has not shown plain
error regarding this issue.
5. PRINCIPLES OF “PLACEMENT” AND “SERVICES”
Lastly, respondent cites two “principles” from the modified settlement in Dwayne B v
Granholm, Case No 2:06–CV–13548 (ED Mich), filed August 8, 2006, which respondent asserts
MDHHS violated in this case. The principles—which according to the settlement should guide
the interpretation of the agreement—relate to the placement of children and the necessity of
tailoring services to meet a family’s unique needs.10 Although respondent cites these provisions,
his argument regarding their significance in this case is not particularly well developed. To the
extent that respondent again challenges the services provided, as already discussed, the trial court
did not clearly err by concluding that MDHHS made reasonable efforts. Respondent has not shown
(requiring MDHHS to provide quality care to children in foster care, which must include “[a]ccess
to and receipt of information and services, including necessary medical, emotional, psychological,
psychiatric, and educational evaluations and treatment, as soon as practicable after identifying the
need for services by the screening and assessment process.”).
10
More fully, the principles cited by respondent state:
D. Placement: The ideal place for children is in their own home with their
own family. When [MDHHS] cannot ensure their safety in the family home, it
must place children in the most family-like and least restrictive setting required to
meet their unique needs and must place siblings together whenever possible.
[MDHHS] must strive to make the first placement the best and only placement.
* * *
F. Services: When [MDHHS] intervenes on behalf of children it must strive
to leave children and families better off than if there had been no intervention.
[MDHHS] must tailor services to meet the unique needs of each family member
and provide those services in a manner that is respectful of the child and the family.
Services should be outcome-based, data-driven, and continuously evaluated.
The modified settlement can be found online at Michigan, Child Welfare Reform, Modified
Settlement Agreement & Court Order (accessed December 1,
2022).
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plain error regarding services that he now claims could have been provided because he cannot
establish that he would have fared better. See In re Sanborn, 337 Mich App at 264.
Regarding the children’s placement, respondent appears to argue that MDHHS failed in its
responsibilities by not placing the children together. Respondent did not challenge the children’s
placement on this basis in the trial court. The issue is, therefore, also unpreserved, see In re
Atchley, ___ Mich App at ___; slip op at 2. Respondent has not satisfied the plain error standard
because he has not shown that the trial court erred, let alone made a clear error. By statute,
reasonable efforts must be made to place siblings removed from the home together unless “joint
placement would be contrary to the safety or well-being of any of the siblings.”
MCL 712A.13a(14)(a). It is clear from the early proceedings that the children were placed
separately because AJB, who had already injured CMB, posed a danger to CMB, and the maternal
grandmother with whom CMB had been living almost since his birth did not believe that she could
handle both children. Further, because of his aggressive behavior toward other children, AJB had
to be moved several times until he was ultimately placed in a foster home without other children
in the home. Respondent has not satisfied the plain error standard because he has not established
that the court made an error with the children’s separate placements.
In sum, respondent has not shown that the trial court clearly erred by concluding that
MDHHS made reasonable efforts toward reunification.
IV. STATUTORY GROUND UNDER MCL 712A.19B(3)(C)(i)
Respondent also argues that the trial court clearly erred by concluding that clear and
convincing evidence supported termination of his rights under MCL 712A.19b(3)(c)(i). We
disagree. The trial court did not clearly err in finding clear and convincing evidence supporting
termination of respondent’s parental rights under MCL 712A.19b(3)(c)(i). We acknowledge that
the court referenced “concerning,” but unsubstantiated CPS complaints. But ultimately the court
did not rely on those complaints. We also acknowledge that, when viewed in isolation, certain of
MDHHS and the court’s criticisms of respondent’s parenting style and discipline could be
attributed to “less than ideal” parenting, not warranting termination. But these incidents did not
occur in a silo. The court viewed them, as it should, in the context of respondent’s five-year-long
case. In that context, we do not find that the court clearly erred in finding that the conditions that
led to adjudication continued to exist with no reasonable likelihood of rectification. See MCL
712A.13)(c)(i).
“To terminate parental rights, a trial court must find by clear and convincing evidence that
at least one statutory ground under MCL 712A.19b(3) has been established.” In re Moss, 301
Mich App at 80. Only one statutory ground need be established to support the termination of
parental rights. In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). The trial court terminated
respondent’s parental rights, in part, under MCL 712A.19b(3)(c)(i), which states:
(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:
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(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 is appropriate under MCL 712A.19b(3)(c)(i) “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.” In re White, 303 Mich App at 710
(quotation marks, citation, and alteration omitted).
Here, the trial court did not clearly err by finding statutory grounds for termination under
MCL 712A.19b(3)(c)(i). The trial court identified the conditions leading to adjudication as
(1) domestic violence between respondent and MB; (2) physical and verbal abuse of AJB;
(3) failure to properly supervise CMB, leading to him being injured by AJB; and (4) failure to
provide “support” and “appropriate care” in a “safe environment” for CMB. It concluded that
respondent failed to rectify these conditions and would be unable to do so in a reasonable time.
The trial court found that respondent posed a risk of physical and emotional harm to the children
because he physically abused and yelled at them.
The trial court made factual findings regarding three specific incidents of physical abuse
that supported its conclusion that respondent failed to rectify the conditions leading to
adjudication. First, it relied on a September 2018 incident when respondent pushed AJB’s knee
into his face while putting on a shoe. Although there was testimony that is may have been an
accident, the court found that the shoe incident involved a deliberate instance of physical abuse
perpetrated by respondent. We defer to the trial court’s credibility determinations, see In re TK,
306 Mich App at 710, that this constituted an instance of deliberate physical abuse, committed by
respondent despite years of services and parenting classes. The trial court credited AJB’s hearsay
statements about the incident, as recounted by a caseworker, AJB’s therapist, and AJB’s foster
mother.11 AJB told these individuals that, while putting on AJB’s shoe, respondent pushed AJB’s
knee into his face. AJB also told his therapist that respondent did this “on purpose.” And AJB
had a mark on his face.
The second incident of physical abuse supporting the court’s finding, involved respondent
hitting CMB on his head causing CMB to fall to his knees in either late 2018 or early 2019. The
trial court credited hearsay statements made by CMB to Bach. According to Bach’s description
of CMB’s statements to Bach, respondent “hit” CMB on the head, CMB fell to his knees, and it
“really hurt.” Respondent also yelled at AJB and CMB during this incident. Although the details
about the incident are sparse, the trial court found this hearsay credible. This constitutes a second
instance of physical abuse, committed by respondent even after years of services and parenting
classes.
11
With limited exceptions, hearsay evidence may be admitted at a dispositional hearing when it is
based on the same statutory grounds that led to jurisdiction. See In re Mota, 334 Mich App 300,
312-313; 964 NW2d 881 (2020) (“Unlike the adjudicative [trial], at the initial dispositional hearing
the respondent is not entitled to a jury determination of the facts and generally, the Rules of
Evidence do not apply, so all relevant and material evidence is admissible.”).
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Finally, in July 2018, respondent yelled and swore at the children after CMB got out of his
car seat while the vehicle was moving. Respondent’s girlfriend, who supervised respondent’s visit
at the time, did not testify at the termination hearing. She reported the incident to Bach, who
testified. According to these hearsay statements, respondent pulled the vehicle to the side of the
road, and then yelled and swore at the children. The girlfriend reported being “scared.”
Respondent testified, and offered supporting testimony from Dr. Eisenstadt, that the incident
constituted nothing more than normal anger and fear by a parent in an emotional situation that
arose when CMB got out of his car seat in a moving car. Respondent is correct that yelling, and
even swearing, by a parent does not necessarily mean that a parent is unfit to care for his or her
children. See In re Kellogg, 331 Mich App at 256 (“A parent that yells and swears at his or her
child, stands over them, and invades their personal space can fairly be characterized as a less than
ideal parent. But that fact standing alone does not prove a parent’s unfitness . . . .”). But, the trial
court rejected this explanation for the incident, choosing instead to view the incident as a
“frightening” “verbal altercation,” involving “hostile conduct” by respondent. Deferring to the
trial court’s assessment of witness credibility and weight of the evidence, see In re TK, 306 Mich
App at 710, the July 2018 incident is reminiscent of incidents leading to the adjudication, including
a 2015 audio recording made by MB, in which respondent yelled at AJB. Despite years of services,
respondent has not addressed the anger-management and domestic-violence issues that led to the
adjudication. The relatively recent occurrence of these three incidents—during times when
respondent was not being supervised by MDHHS or Catholic Charities—support the trial court’s
conclusion that respondent has not fully rectified his anger-management, domestic-violence, and
abuse concerns that led to the adjudication, despite years of services.
Given the length of time this case has been pending—over five years—the trial court also
did not clearly err by concluding that there is no reasonable likelihood that the conditions would
be rectified within a reasonable time considering the children’s ages. See MCL 712A.19b(3)(c)(i).
The trial court’s finding, that respondent had ample time to “demonstrate meaningful progress on
correcting the conditions that led to adjudication regarding each child and has not done so,” was
supported by ample evidence. AJB and CMB were in foster care for over five years and the
testimony showed that, in that time, respondent failed to benefit from the various services offered
to him. Termination is appropriate in such circumstances. See In re White, 303 Mich App at 710
(indicating that termination is appropriate under MCL 712A.19b(3)(c)(i) “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.”).
We are not persuaded by respondent’s arguments that the trial court relied on improper
factors and faulty proofs from MDHHS. Respondent claims that the trial court (1) improperly
relied on unsubstantiated CPS complaints, (2) held respondent’s parenting skills to an unfair and
impossible standard, and (3) improperly relied on his corporal punishment as a basis for
termination. We address each of these claims.
First, we acknowledge that MDHHS noted that there were 11 CPS complaints against
respondent, which the trial court characterized as “concerning.” The court may not rely on
unproven allegations as a basis to terminate parental rights. See In re Jackisch/Stamm-Jackisch,
___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 357001); slip op at 5. And, here, the
court did not rely on those allegations. It expressed concern, but made specific factual findings
and credibility determinations about the three relatively recent incidents of abuse described above.
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Second, respondent argues that MDHHS held him to an unfair and perfecting standard,
nitpicking his parenting technique for isolated incidents of failing to bring food to visitations,
needing to be prompted to discipline the children, disciplining the children too often and too
harshly, and using overly complicated language with the children. Respondent is correct that a
parent’s rights cannot be terminated simply because he or she is “less than ideal.” See In re
Newman, 189 Mich App 61, 70; 472 NW2d 38 (1991) (“Respondents are less than ideal parents.
But this is not a perfect world.”). But the court did not appear to rely on these matters when finding
statutory grounds.
Third, respondent claims that he was punished for MDHHS’s unsupported claims that he
spanked the children during unsupervised visits. We acknowledge that the law permits parents to
use “reasonable force” to discipline a child. See MCL 750.136b(9) (stating that prohibitions on
child abuse did not prohibit parents and guardians from disciplining children, including “the use
of reasonable force”). Here, however, the trial court did not rely on unsupported claims or
“reasonable” spankings. It made specific findings regarding incidents of physical and verbal abuse
that occurred after years of attempting to rectify respondent’s issues.
The evidence supporting the court’s findings for the statutory grounds did not occur in a
vacuum. Rather, they occurred in the context of respondent’s years-long history with the trial
court and numerous unsuccessful attempts at correction and reunification. Deferring to the trial
court’s determinations regarding credibility and the weight of the evidence, the trial court did not
clearly err by finding clear and convincing evidence supported termination of respondent’s
parental rights under MCL 712A.19b(3)(c)(i).12
V. BEST INTERESTS
Lastly, respondent argues that the trial court clearly erred by concluding that termination
was in the children’s best interests. According to respondent, the children are bonded to him, and
their best interests will not be served by adoption and severing their bond with respondent,
particularly when they are not in the same foster placement. We disagree.
In determining a child’s best interests, the trial court should also weigh all the available
evidence and consider a wide variety of factors, including the child’s bond to the parent, the
parent’s parenting skills, and the child’s need for permanence, stability, and finality. In re White,
303 Mich App at 713. The possibility of adoption13 and the advantages of a foster home over the
12
Given our conclusion that the trial court did not clearly err in finding that clear and convincing
evidence supported termination of respondent’s parental rights under MCL 712A.19b(3)(c)(i), we
need address respondent’s arguments regarding MCL 712A.19b(3)(j). See In re Ellis, 294 Mich
App at 32.
13
On appeal, respondent argues that this Court should reevaluate caselaw, including In re White,
303 Mich App at 713-714, which respondent characterizes as “rubber-stamping” best-interest
findings in cases involving a possibility of adoption. Contrary to respondent’s arguments, this
precedent merely identifies the possibility of adoption as one of several relevant factors the trial
court should consider when evaluating a child’s best interests.
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parent’s home may also be considered. Id. at 713-714. Other relevant factors include a parent’s
history of domestic violence or abuse and concerns for a child’s safety and well-being if returned
to the parent’s care. See id.; In re VanDalen, 293 Mich App 120, 141; 809 NW2d 412 (2011). A
child’s placement with a relative weighs against termination under MCL 712A.19a(8)(a), and a
relative placement is a fact that must be considered when analyzing a child’s best interests. In re
Olive/Metts Minors, 297 Mich App at 43. Ultimately, the focus of the best-interest analysis is the
child, not the parent. In re Moss, 301 Mich App at 87.
Here, the trial court addressed AJB’s and CMB’s best interests, considering the relevant
factors. First, although there was conflicting evidence regarding the strength of the children’s
bond with respondent, the trial court credited testimony that AJB had a “very weak bond” with
respondent and that CMB had “little to no bond” with respondent. Deferring to the trial court’s
determinations regarding the weight and credibility of the evidence, the trial court did not clearly
err in its evaluation of the children’s respective bonds with respondent.
The trial court also found that both children needed permanency, stability, and finality,
which their respective placements were willing to provide. Regarding AJB, the court credited
testimony that from various witnesses indicating that termination of respondent’s parental rights
was in AJB’s best interests. It noted the testimony of Kathy Spatafore, an expert in clinical
psychology who conducted psychological evaluations on children and adults in cases involving
neglect and abuse, who testified that removing AJB from his foster home would be detrimental to
him. It also found that several witnesses “convincingly testified” that AJB “thrived” in his foster
home. Further, the trial court found that because AJB “suffer[ed] from severe emotional and
behavioral issues which require[] above-and-beyond attentive, hands-on, assistance,” he “need[ed]
to be placed in an environment which addresses his concerning behavior and assists him in
overcoming or managing his special needs.” It determined that his foster home “provided the most
stable and consistent home environment [he] ha[d] ever known.” Regarding CMB, the court noted
testimony that he was in “critical need” of permanence and removal from his placement with his
maternal grandmother would be “absolutely detrimental to him.” It also noted CMB’s special
emotional needs and his ADHD diagnosis. The court indicated that CMB required a caregiver
who could address these unique needs, as his maternal grandmother had done so his entire life.
We conclude that the trial court’s findings regarding the children’s need for permanency, stability,
and finality, were supported by a preponderance of the evidence.
The trial court also noted that respondent had a history of domestic violence, and the trial
court found that respondent continued to demonstrate “physical aggression” “through his deficient
parenting skills.” The trial court’s findings are supported by the two instances of physical abuse
and the incident when respondent yelled at the children in the car. According to the trial court’s
findings, the children were well cared for in their respective placements, and the children were
bonded to their caregivers. Further, the caregivers were interested in adoption. Unlike AJB, CMB
was placed with a relative—his maternal grandmother. The trial court expressly considered this
relative placement, but found that it did not outweigh the other factors supporting termination,
particularly when CMB was bonded to his grandmother as his primary caregiver, he needed
permanency, and respondent had a “very strained” relationship with the grandmother. Although
respondent disagrees with the trial court’s findings and presented evidence to support his belief
that termination was not in the children’s best interests, this Court defers to “a trial court’s special
opportunity to judge the weight of the evidence and the credibility of the witnesses who appear
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before it.” In re TK, 306 Mich App at 710. In doing so, we conclude that the trial court did not
clearly err by concluding that termination of respondent’s rights was in the children’s best interests.
We affirm.
/s/ Noah P. Hood
/s/ Brock A. Swartzle
/s/ James Robert Redford
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In Re Bourbeau Minors
Combined Opinion