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UNPUBLISHED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 T. V. RILEY, Minor. October 28, 2021
No. 356618
Bay Circuit Court
Family Division
LC No. 18-012619-NA
Before: STEPHENS, P.J., and SAWYER and SERVITTO, JJ.
PER CURIAM.
Respondent, the father of TVR, appeals as of right the trial court’s order terminating his
parental rights under MCL 712A.19b(3)(c)(i) (conditions which led to adjudication continue to
exist and are unlikely to be rectified within reasonable time), and (g) (failure to provide proper
care or custody and no reasonable expectation of such care or custody within reasonable time).
We affirm.
During the first year and few months of TVR’s life, respondent and TVR’s mother
(“Mother”) cared for him, but often left TVR and his older half siblings1 with his maternal
grandmother (“Grandmother”) for extended periods with little or no notice. Respondent worked
and provided some financial support for the family at times, and worked in the home to care for
the family. Respondent and Mother both had a history of substance abuse issues, and they began
using significant amounts of cocaine together when TVR was about a year old. Mother also would
disappear at times to get high and then sleep for days. Respondent had been charged with domestic
violence offenses involving Mother, and was also jailed on various charges at least three times in
the first year and a half of TVR’s life. When court involvement began in this case, respondent was
in jail on domestic violence charges and had left TVR in Mother’s care. TVR and his half siblings
were officially placed with Grandmother by petitioner after Mother left TVR alone in a car on a
hot day for about 30 minutes while Mother tried to steal liquor.
Respondent was released from prison about four months after court involvement began.
He visited TVR twice, and the visits went well. However, respondent met Mother, used cocaine
1
TVR’s half siblings are the children of Mother, but not of respondent.
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with her, and was rearrested within a week of his release. He spent two days in jail. On release,
respondent learned Mother was sleeping with his cousin, beat his cousin up, cut off his electronic
monitoring device, and absconded to avoid arrest. Respondent evaded arrest for nearly six months.
During this time period, he tried to stay connected to TVR through unsanctioned FaceTime calls
and visit attempts, but respondent did not contact petitioner to continue his work toward
reunification.
Respondent was rearrested on April 24, 2019, and sentenced to prison, with an earliest
release date of April 23, 2021. In prison, respondent participated in the available prison
programming, including substance abuse and domestic violence prevention programs and job
training. Respondent emphasized that he was fully committed to learning from and utilizing these
services to avoid the mistakes of his past and that he would devote himself on release to doing
everything necessary to reunifying with TVR. Mother participated in visits and services
inconsistently for some time but eventually ceased all involvement in the case. A guardianship
was put in place for Grandmother to care for TVR’s older half siblings. However, petitioner
recommended termination of respondent’s and Mother’s parental rights to TVR, so that TVR could
be adopted by Grandmother.
The trial court found that there were grounds for termination of respondent’s parental rights
under both MCL 712A.19b(3)(c)(i) and (g), and found that termination was in TVR’s best
interests. TVR was just under four years old when respondent’s parental rights were terminated.
Respondent’s earliest release date was just over two months away. On appeal, respondent argues
that it was clearly erroneous for the trial court to find statutory grounds for termination, and to find
that termination was in TVR’s best interests.
This Court reviews the trial court’s “factual findings and ultimate determinations on the
statutory grounds for termination,” as well as its “determination regarding the children’s best
interests” for clear error. This Court finds clear error when it is “definitely and firmly convinced
that [the trial court] made a mistake.” In re White, 303 Mich App 701, 709-710, 713; 846 NW2d
61 (2014). In applying the clear error standard, “ ‘regard is to be given to the special opportunity
of the trial court to judge the credibility of the witnesses who appeared before it.’ ” In re Schadler,
315 Mich App 406, 408-409; 890 NW2d 676 (2016) (citation omitted). “We review de novo the
interpretation and application of statutes and court rules.” In re Mason, 486 Mich 142, 152; 782
NW2d 747 (2010).
To terminate a person’s parental rights, the trial court must first find that at least one of the
statutory grounds for termination has been established by clear and convincing evidence. In re
Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000), superseded in part by statute on other grounds
as stated in In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013). The trial court found that
there was clear and convincing evidence to establish statutory grounds for termination under MCL
712A.19b(3)(c)(i) and (g). Those provisions state:
(3) The court may terminate a parent’s parental rights to a child if the court finds,
by clear and convincing evidence, 1 or more of the following:
* * *
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(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.
* * *
(g) The 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)(c)(i) and (g).]
It is appropriate to analyze MCL 712A.19b(3)(c)(i) and (g) together, because “each of these
grounds requires clear and convincing proof that the parent has not provided proper care and
custody and will not be able to provide proper care and custody within a reasonable time.” In re
Mason, 486 Mich at 164-165 (holding that its analysis of grounds for termination under MCL
712A.19b(3)(h) applied equally to analysis of MCL 712A.19b(3)(c)(i) and (g)); see also In re
Pops, 315 Mich App 590, 594 n 1; 890 NW2d 902 (2016) (noting that, under Mason, it was
appropriate to consider prongs (c)(i) and (g) together).
Respondent argues that the trial court erred by finding clear and convincing evidence
establishing termination grounds under MCL 712A.19b(3)(c)(i) and (g) because respondent was
soon to be released from prison, and he had made progress in prison on addressing the issues
identified by petitioner as barriers to respondent’s ability to care for TVR. There was evidence
respondent completed a Phase Two Substance Abuse program in prison, as well as attending NA
and AA meetings, attending Michigan Intensive Domestic Violence Program classes, and
attending vocational training. There was evidence that respondent abstained from drug use in
prison and was likely to be released on April 23, 2021. Respondent testified at length about his
plans for quickly building a stable life in which he could care for TVR, and the supports that he
would have in place to achieve that goal.
However, there was also ample evidence casting doubt on respondent’s ability to follow
through on his plans and remain in the community without using drugs, reoffending, and further
destabilizing TVR’s young life. When respondent was released into the community in October
2018, after two positive visits with TVR, respondent quickly used cocaine, was jailed for two days,
released again, beat up his cousin for sleeping with Mother, cut off his electronic monitor, and
went on the run. While respondent was working during this period and trying to get his “money
situated,” he did not send money for TVR’s care. Respondent tried to stay connected to TVR
through unsanctioned FaceTime calls and visit attempts, but respondent did not contact petitioner
to continue his work toward reunification. For almost six months after disappearing, while the
instant case was ongoing, respondent made a daily choice to prioritize avoiding prison over
working toward reunification with his son. This failure to prioritize TVR came after respondent
assured the trial court that he wanted to be part of TVR’s life and would do everything necessary
to be reunited with TVR.
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Respondent argues that a parent’s rights should not be terminated simply because of his
incarceration, see In re Mason, 486 Mich at 146 (“Incarceration alone is not a sufficient reason for
termination of parental rights.”). However, respondent’s behavior when released separates this
case from Mason. The respondent in Mason was in prison throughout the case, but respondent in
this case was released twice, and both times made choices casting doubt on the reasonable
likelihood that respondent will be able to provide proper care and custody of TVR in a reasonable
time when next released. Moreover, in Mason, our Supreme Court was particularly concerned
about the lack of opportunity for the respondent to participate in the proceedings or to receive
services. See id. at 168. Respondent in this case has not argued that he was denied services, and
he participated in the proceedings throughout the case, except when he was evading arrest.
The trial court recognized respondent’s rights could not be terminated purely because he
was incarcerated or because of his criminal history. Instead, the trial court emphasized
respondent’s “continuing pattern of behavior” wherein he appeared ready and willing to step up
and change his ways while incarcerated, but did not actually do so when given the chance in the
community. There was evidence that respondent had completed a Phase Two Substance Abuse
program when he was in prison in the past and respondent had previously taken domestic violence
prevention classes. However, respondent had continued to be involved in domestic violence, and
had relapsed and used drugs extensively after these programs. Respondent was jailed multiple
times during the first year and few months of TVR’s life, and went through $8,000 worth of
cocaine in a month with Mother about the time TVR turned one. Respondent then left TVR in
Mother’s care despite his knowledge of her propensity to use drugs and disappear or sleep for days.
Given respondent’s past behavior, combined with his behavior both times he was released
during the course of this case, there was no error in the trial court’s conclusion that respondent was
unlikely to provide proper care and custody for TVR within a reasonable time. Respondent
explained that he was older and more motivated in following through this time because of his
desire to reunify with TVR. The trial court was not convinced by respondent’s explanations of
why things would be different this time, and “ ‘regard is to be given to the special opportunity of
the trial court to judge the credibility of the witnesses who appeared before it.’ ” In re Schadler,
315 Mich App at 408-409 (citation omitted).
Moreover, the trial court emphasized that TVR was very young, and had already spent most
of his life waiting for respondent to provide stability. This is a proper consideration. Matter of
Dahms, 187 Mich App 644, 648; 468 NW2d 315 (1991) (“The trial court’s decision to terminate
appropriately focused not only on how long it would take respondent to improve her parenting
skills, but also on how long her three children could wait for this improvement.”).2 The trial court
did not clearly err by finding that there was no reasonable likelihood respondent would, within a
reasonable time considering TVR’s age, be able to demonstrate his ability to stay in the community
long-term and provide a safe, stable home for TVR without being reincarcerated or returning to
2
Matter of Dahms, 187 Mich App at 645, concerned only MCL 712A.19b(3)(c)(i). However, as
already noted, it is proper to analyze MCL 712A.19b(3)(c)(i) and (g) together. See In re Pops,
315 Mich App at 594 n 1.
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drug use. As such, the trial court did not clearly err in determining that there was clear and
convincing evidence supporting grounds for termination under MCL 712A.19b(3)(c)(i) and (g).
Respondent also argues that termination was not in TVR’s best interests. The best-interest
phase is focused on the child, not the parent, and the parent no longer has a liberty interest in
parenting his child at this phase. In re Trejo, 462 Mich at 355-356. In determining whether
termination is in a child’s best interests, the trial 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 a parent’s history of domestic violence, 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 (citation omitted).]
The court may also consider psychological evaluations, the child’s age, and a parent’s history. In
re Jones, 286 Mich App 126, 131; 777 NW2d 728 (2009).
Respondent argues that the trial court gave insufficient weight to the existence of a bond
between TVR and respondent before removal, and to the letters and cards respondent sent TVR
while incarcerated. The bond between parent and child is clearly one of the appropriate factors
for courts to consider during the best-interest analysis. See, e.g., In re White, 303 Mich App at
713-714. The trial court in this case did consider respondent’s bond with TVR, but determined
that respondent was “a stranger” to TVR, while TVR was strongly bonded to Grandmother. There
is ample evidence in the record to support these findings, and there was no error in the trial court’s
consideration of TVR’s bond with respondent.
Respondent also argues generally that he made progress in prison programs and was likely
to be soon released at the time of termination. The trial court noted these facts, but found they
were outweighed by other factors. The trial court emphasized TVR’s need for permanence and
stability given his young age and the significant disruption which marked the beginning of his life.
The trial court stated, “In his short life, the child has never had stability or permanency with his
parents.” In contrast, Grandmother had provided consistent support and stability, and was willing
to adopt TVR. The trial court considered that TVR’s need “to be in a stable permeant [sic]
placement is far greater” than TVR’s need “to know his Father.” The trial court is entitled to give
“strong weight to the children’s need for safety and stability.” See id. at 714. There was no clear
error in the trial court’s best-interest decision.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ David H. Sawyer
/s/ Deborah A. Servitto
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