Opinion
No. 312838
2013-10-15
In the Matter of ALLEN, Minors.
UNPUBLISHED
Livingston Circuit Court
Family Division
LC No. 2010-013569-NA
Before: SERVITTO, P.J., and WHITBECK and OWENS, JJ. PER CURIAM.
Respondent-father appeals as of right from a circuit court order that terminated his parental rights to his minor children, A.A. and G.A. The court terminated respondent's rights to A.A. pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), to G.A. pursuant to MCL 712A.19b(3)(c)(ii) (other conditions exist that have not been rectified), and to both children under MCL 712A.19b(3)(g) (failure to provide proper care and custody) and MCL 712A.19b(3)(j) (likelihood of harm if returned to parent). We affirm.
Respondent argues that the trial court erred in finding that there were statutory grounds for termination of his parental rights and that termination was in the children's best interests. We disagree.
First, the trial court did not clearly err in finding that the statutory grounds to terminate respondent's parental rights to A.A. and G.A. pursuant to MCL 712A.19b(3)(g) and (j), were established by clear and convincing evidence. See In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). There was ample evidence presented to support the trial court's finding that respondent could not provide proper care and custody for the children. MCL 712A.19b(3)(g). Despite the services respondent was provided, his criminality and substance abuse remain ongoing issues. He has been imprisoned most of A.A.'s life and all of G.A.'s life. The last time he was released from prison, he had an opportunity to be a father to A.A., but instead he committed retail fraud and was again incarcerated. At the time of the offense, he was caring for another minor child. While in prison, respondent has demonstrated an inability to comply with the rules of a restricted societal setting (i.e., prison), as evidenced by his misconducts for alcohol possession, fighting, and refusing to follow orders. His attempt to distinguish prison misconduct from criminal activity is of no consequence. Indeed, the fact that he continues to violate normative rules of behavior while in prison, a highly controlled environment, tends to raise doubts about his ability to conform to the rules of non-prison society. In sum, his continuing criminal behavior and misconduct in prison have not only impacted his ability to be present in the lives of his children, they raise serious questions about the stability of any familial environment and relationship he might hope to construct outside of prison.
Respondent relies on In re Mason, 486 Mich 142; 782 NW2d 747 (2010). There, our Supreme Court ruled that, "[t]he mere present inability to personally care for one's children as a result of incarceration does not constitute grounds for termination." Id. at 161. This comment was made in the context of a discussion on whether MCL 712A.19b(3)(h) had been established. Here, termination was not predicated on this provision. Moreover, the trial court in the case at hand did not terminate respondent's parental rights merely because he was incarcerated. Rather, the court reasoned that his continuing criminal behavior and prison misconduct supports the conclusion that it is unlikely he will change the conditions of his life to be able care for his children.
Further, respondent has also failed to adequately address his substance abuse issues. Although respondent has completed some substance abuse treatment while in prison, the evidence is that he has not benefitted from this treatment, as he has received two prison misconducts for alcohol possession. "[I]t is not enough to merely go through the motions; a parent must benefit from the services offered so that he or she can improve parenting skills to the point where the children would no longer be at risk in the parent's custody." In re Gazella, 264 Mich App 668, 676; 692 NW2d 708 (2005), superseded by statute on other grounds as stated in In re Hansen, 285 Mich App 158, 163; 774 NW2d 698 (2009), vacated on other grounds 486 Mich 1037 (2010). Finally, respondent has been unable to obtain gainful employment, both inside and outside of prison that would allow him to properly care for the children. Respondent's failure to address these concerns raises a question about his willingness to do so. And even if it is assumed he desires to properly provide and care for his children, his inability to do is the operative consideration.
As for MCL 712A.19b(3)(j), respondent focuses on the absence of evidence that he ever physically harmed A.A. during his brief time as her caregiver. However, a trial court may consider the potential for emotional harm to the children caused by a parent's conduct. In re Hudson, 294 Mich App at 268. Respondent's ongoing pattern of substance abuse and criminal activity has already deprived the children of a normal home, and early and critical bonding time with him. His inability to refrain from criminal activity and adequately address the identified barriers to parenting demonstrates that the children would be subject to a very real risk of emotional harm if placed in respondent's care.
Accordingly, the trial court did not clearly err in finding a statutory basis to terminate parental rights under MCL 712A.19b(3)(g) and (j). Because "[o]nly one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights," we decline to address the other two grounds for termination. In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). Next, the preponderance of the evidence establishes that termination of respondent's parental rights was in the children's best interests. In re Moss, 301 Mich App 76, 90; ___ NW2d ___ (2013). In making its best-interests determination, the court addressed the emotional ties between respondent and the children, his ability to provide proper guidance, affection, food, clothing, and medical care, as well as his moral fitness and the children's need for stability. The court also considered, and dismissed, the possibility of placing the children with a relative. The court made it clear that it did not doubt that respondent loved the children. However, for the reasons discussed above, he has not shown that his affection has spurred either the capacity or the desire to rectify the circumstances of his life to render him a fit parent. Thus, the trial court did not clearly err in finding that termination of respondent's parental rights was in the children's best interests.
Affirmed.
Deborah A. Servitto
William C. Whitbeck
Donald S. Owens