Opinion
No. 354685
04-29-2021
In re A.D. SMITH, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ingham Circuit Court Family Division
LC No. 17-000047-NA Before: JANSEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court's order terminating his parental rights to his son, AS, under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (c)(ii) (other conditions exist that cause the child to come within the court's jurisdiction), and (j) (reasonable likelihood that the child will be harmed if returned to parent). We affirm.
I. BACKGROUND
Defendant was sentenced to prison for firearms-related felonies in December 2015. Shortly thereafter, on February 19, 2016, AS was born. Respondent executed an affidavit of parentage about a month later. Initially, AS lived with AS's mother, AV, along with AV's three other children. On January 6, 2017, AV was arrested, and all four children were removed from AV's care. The children were placed in non-relative foster homes. According to a January 7, 2017, note in the case service plan, AV apparently informed the case worker at the time that Diana Scott, respondent's mother, might be a possible placement for AS. A few days later, AV also provided the names of other relatives, including Melissa Keck and AV's mother SanJuanita Gonzalez. The case worker mailed information about the case to respondent in prison, but apparently had difficulty directly contacting him. Further notes indicated that the agency was trying to place the children together, but had difficulty identifying a placement that could take all four children at once or identifying safe relative placement options. In mid-2017, Gonzalez contacted the case worker seeking placement of all four children. The agency explored Gonzalez as an option until Gonzalez moved to Florida in November 2017.
We have not been able to find in the record an explanation of exactly how, if at all, Keck is related to any of the children. Keck was otherwise described as a non-relative by case workers and as "fictive kin" in another document. --------
Meanwhile, a supplemental petition was filed on September 12, 2017, seeking jurisdiction over AS as to respondent. Respondent entered a plea of admission to portions of the petition, admitting to his criminal history and lack of relationship with AS due to his incarceration. The trial court recommended that respondent receive supervised visitation upon his release. Respondent was paroled on February 20, 2018, whereupon he engaged in services and mostly appeared to benefit; however, he inconsistently complied with drug testing and provided positive drug screens. On July 23, 2018, AV's parental rights were terminated. According to a note in one of respondent's parent agency treatment plan reports, a case worker asked respondent in late 2018 to identify at least one "committed back up care provider" who was willing to pass a background check, noting that "[a] network of aunts and uncles who have not firmly committed to back up care provision is not an appropriate care plan." Despite respondent's continued drug use, he began receiving overnight visits with AS in January 2019, and AS was placed with him on February 12, 2019.
Respondent was repeatedly instructed by the agency and the trial court that he needed to desist from using drugs. Drug use also constituted a violation of the terms of his parole. Unfortunately, defendant continued to miss drug screens or to test positive for marijuana or cocaine. On April 23, 2019, a show-cause hearing was held due to respondent's drug use, at which the trial court declined to remove AS from respondent's care, but the court again ordered respondent not to use or possess any controlled substances. A few days later, respondent was arrested for a misdemeanor domestic violence incident, and he was jailed for eleven days for a parole hold. AS was removed from his care at that time and placed with Keck, because two of AS's siblings were already placed with Keck. Keck had expressed a desire to adopt the siblings, and she expressed a willingness to also adopt AS.
At some point after respondent's release from jail, the case worker became aware of some of respondent's relatives being interested in having AS placed with them. Respondent's cousin, Latasha Scott, and Diana both testified that they made inquiries to the agency. At an August 8, 2019, hearing, the case worker testified that respondent was living with his aunt, who had an appropriate home and was willing to let AS also reside with her. The agency still believed reunification with respondent was the most appropriate goal, but the lawyer-guardian ad litem asked the trial court to order termination proceedings. The trial court declined to order termination, but it ordered AS to remain in his current placement. Respondent's aunt, Lowanda Martin, later admitted that she never expressed any desire to have AS placed with her.
On September 12, 2019, respondent was again arrested for a parole violation and was returned to prison. He was originally expected to remain incarcerated for 90 days. The trial court ordered petitioner to file a supplemental termination petition. Petitioner did so, seeking to terminate respondent's parental rights because respondent had failed to overcome the barriers to reunification and AS could not yet be returned to respondent's care despite being in care for more than 36 months. Contrary to initial expectations, respondent was not released back on parole until February 20, 2020. He was discharged from parole four months later. The trial court held a bench trial, following which it ordered respondent's parental rights terminated. This appeal followed.
II. STANDARDS OF REVIEW
In order to terminate parental rights, a trial court must find that a statutory ground has been established by clear and convincing evidence, and it must find by a preponderance of the evidence that termination is in the best interests of the child. In re Moss, 301 Mich App 76, 80, 90; 836 NW2d 182 (2013). The trial court's findings regarding statutory grounds are reviewed for clear error. Id. at 80. A trial court's factual findings whether reasonable efforts for reunification had been made are also reviewed for clear error. See In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). Finally, this Court also reviews the trial court's ruling that termination is in the child's best interests for clear error. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." Moss, 301 Mich App at 80 (citation and quotation marks omitted).
However, a parent must preserve their claim that reasonable efforts were not made by objecting or asserting in the trial court that the services then-presently being provided were not adequate. In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). Unpreserved claims are reviewed for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Id. at 9.
III. REASONABLE EFFORTS
Respondent argues that petitioner failed to make reasonable efforts to reunify him with AS. Specifically, respondent argues that insufficient efforts were made to place AS with a relative, which would have weighed against termination, and that he was not provided with adequate specialized psychological services as recommended by Dr. Randall Haugen. Because respondent did not raise these issues in the trial court until the end of the proceedings, if at all, they are not preserved for appeal. In any event, we disagree.
"Under Michigan's Probate Code, the Department 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; 93 NW2d 637 (2017). "As part of these reasonable efforts, the Department must 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." Id. at 85-86. "The adequacy of the petitioner's efforts to provide services may bear on whether there is sufficient evidence to terminate a parent's rights." In re Rood, 483 Mich 73, 89; 763 NW2d 587 (2009). "While the [DHHS] has a responsibility to 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 Laster, 303 Mich App 485, 495; 845 NW2d 540 (2013) (quotation omitted).
Respondent argues that the trial court erred in finding that reasonable efforts had been made to reunify him with AS because petitioner failed to adequately investigate whether there were relatives with whom AS could have been placed. Further respondent contends that, if AS had been placed with a relative, the relative placement would have weighed against termination of his parental rights.
Under MCL 722.954a(2), upon removal, "the supervising agency shall, within 30 days, identify, locate, notify, and consult with relatives to determine placement with a fit and appropriate relative who would meet the child's developmental, emotional, and physical needs." MCL 722.954a(5) provides:
Before determining placement of a child in its care, a supervising agency shall give special consideration and preference to a child's relative or relatives who are willing to care for the child, are fit to do so, and would meet the child's developmental, emotional, and physical needs. The supervising agency's placement decision shall be made in the best interests of the child.Further, reasonable efforts must be made to "[p]lace siblings removed from their home in the same foster care, kinship guardianship, or adoptive placement, unless the supervising agency documents that a joint placement would be contrary to the safety or well-being of any of the siblings." MCL 722.954a(5) and MCL 712A.13a(14)(a).
AS was removed from AV's care and placed in a nonrelative foster care home in March 2017 while respondent was incarcerated. The caseworker, Crystal Chaffee, testified that she contacted respondent in prison and asked if he had any relatives with whom AS could be placed. Respondent never identified a relative with whom AS could be placed. Chaffee testified that, although she had contact with respondent's mother, Diana Scott, after AS was removed from AV's care, Diana never indicated that she was interested in having AS placed with her. The foster-care supervisor, Courtney Schamehorn, testified that she worked on this case from January 2019 to August 2019, and during that time period she recalled respondent's family members reaching out to inquire about having placement of AS, but the agency was hesitant to move AS again because he was placed with his siblings and the goal was still reunification with respondent. Respondent's cousin, Latasha Scott, and Diana both testified that, after AS was removed from respondent's care when respondent returned to jail, they had both made efforts to contact the caseworkers to inquire as to whether AS could be placed with them.
The court found that although there was evidence in the file that a member of respondent's family requested, in July 2019, to have AS placed with the family member, requests to have AS placed with the family should have occurred prior. The trial court stated that, although AS was not in relative care, he was placed with his siblings, where he had been for over a year.
Because respondent did not timely raise this issue in the trial court, other than the request for relative placement in July 2019, it is not clear specifically when Diana and Latasha sought to have AS placed with them. The evidence indicates that when AS was initially removed from AV's care in March 2017, respondent did not provide any relatives with whom AS could be placed. We note that the agency did make some efforts to place the children with their maternal grandmother until the maternal grandmother moved to Florida; furthermore, the record reflects some ambiguity about the nature of Keck's relationship to the children. In any event, deficiencies in the agency's efforts at relative placement were mooted when AS was actually placed with respondent, so respondent cannot show that any deficiencies prior to that placement affected the outcome of this matter. See In re Frey, 297 Mich App at 247; In re Utrera, 281 Mich App at 8. In May 2019, when AS was removed from respondent's care, AS was placed in Keck's foster home, where two of his siblings were already placed and might be adopted. Under MCL 722.954a(5) and MCL 712A.13a(14)(a), the agency was required to make reasonable efforts to place AS with his siblings. In light of the competing obligations, the emergency nature of that placement, and the need to avoid excessively reshuffling AS's environment, we are not persuaded that this placement was unreasonable. Thus, respondent did not establish that petitioner failed to make reasonable efforts to reunify him with AS on this ground.
Respondent also argues that petitioner failed to provide him with specialized services as recommended by Dr. Haugen. Dr. Haugen opined that traditional psychotherapy would likely be unhelpful for respondent, and respondent's personality likely made him more vulnerable to alcohol and substance abuse. He therefore recommended that respondent would benefit from cognitive behavior therapy to help him learn to set short- and long-term goals, a program like Narcotics Anonymous to provide external support, and parent training that emphasized a collaborative approach to discipline. Respondent argues that petitioner failed to refer him to any such services, citing In re Hicks/Brown, in which the petitioner failed to provide adequate services to accommodate the respondent's disability as required by the ADA. In re Hicks/Brown, 500 Mich at 83-85. Here, respondent was provided with extensive services throughout the case after his first release from prison. Respondent contends that he would have benefitted from more specialized services, but he fails to show that they would have affected the outcome of the proceedings. See In re Frey, 297 Mich App at 247; In re Utrera, 281 Mich App at 8.
Respondent was provided extensive services to address his substance abuse. Respondent was referred for drug screens throughout the pendency of the proceedings, except during a period when drug screens were suspended because of COVID-19. Following the suspension, the caseworker, Byron Hills, notified respondent that he could continue to submit to drugs screens on June 5, 2020, but respondent chose not to submit. Despite continuing to test positive for marijuana and cocaine, respondent was permitted parenting time with AS, as well as to be reunified with AS for three months. Respondent was referred to a substance abuse assessment and a substance abuse program. Respondent also completed outpatient therapy to address substance abuse. Respondent was provided in-home services through Families Together Building Solutions. Further, he was provided services through the Highfields Program, which helped respondent achieve a more structured life by focusing on daily skills, parenting skills, and employment. The Highfields Program also assisted respondent in setting goals and addressing substance abuse. Schamehorn testified that, when respondent continued to illustrate that he abused substances, the court ordered respondent to submit to another substance abuse assessment. Respondent was referred, but failed to attend. "[T]here exists a commensurate responsibility on the part of respondents to participate in the services that are offered." In re Laster, 303 Mich App at 495. Respondent failed to engage in the substance abuse services provided to him and failed to establish that he could benefit from those provided. Thus, respondent failed to establish that, if he had been provided more specialized services to address his substance abuse, the outcome of the proceedings would have been different.
IV. STATUTORY GROUNDS
Respondent argues that the trial court erred in finding a statutory basis to terminate his parental rights under MCL 712A.19b(3)(c)(i), (c)(ii) and (j). We disagree.
A. MCL 712A.19b(3)(c)(i)
The trial court did not err by terminating respondent's parental rights to AS pursuant to MCL 712A.19b(3)(c)(i). A trial court may terminate parental rights pursuant to MCL 712A.19b(3)(c)(i) if 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds that "[t]he 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."
On September 29, 2017, the court entered the order of disposition as to respondent. Therefore, more than 182 days had passed at the time the court terminated respondent's parental rights. On appeal, respondent argues that his "criminality" was not a basis for jurisdiction; rather, respondent entered a plea to jurisdiction indicating that he was "unavailable due to incarceration," and the court took jurisdiction under MCL 712A.2(b)(2), for "an unfit home environment . . . by reason . . . of criminality." Thus, respondent contends that the trial court incorrectly relied on his failure to rectify his "criminality" as grounds for terminating his parental rights under MCL 712A.19b(3)(c)(i) because "criminality" was not a basis for jurisdiction. Moreover, respondent argues that the trial court could not rely solely on his past criminal behavior to terminate his parental rights, and that there was ample evidence that he provided AS a fit home when he was not incarcerated.
It is correct that a court cannot rely solely on incarceration or a criminal history to terminate a respondent's parental rights. In re Mason, 486 Mich at 165 (stating that "just as incarceration alone does not constitute grounds for termination, a criminal history alone does not justify termination"). However, the trial court did not rely solely on respondent's criminal history or incarceration to terminate his parental rights. As an initial matter, respondent did not enter a plea indicating that he was "unavailable due to incarceration." Rather, respondent admitted to the following allegations for jurisdiction: (1) in 2011, respondent was convicted for carrying a concealed weapon, (2) in December 2014, respondent was charged with felony-firearm, and he was sentenced in December 2015, with the earliest possible release date being August 2018, and (3) respondent had not established a relationship with AS because he was incarcerated. Thus, respondent had a criminal history, resulting in his incarceration, which in turn resulted in respondent not having established a relationship with AS. Therefore, respondent's criminality was a basis for finding sufficient grounds to take jurisdiction, but it was not the only basis. Rather, the court also found that respondent had no relationship with AS since he had been incarcerated since before AS was born.
At the termination hearing, the trial court found that respondent had failed to rectify the two conditions that led to jurisdiction—criminality and lack of a relationship with AS. In April 2018, two months after he was released from prison, respondent tested positive for cocaine on two occasions, which, as a parole violation, resulted in respondent being jailed for ten days. Respondent started to participate and benefit from services, enough to have AS returned to his care in February 2019. However, respondent continued to test positive for drugs, and he was expressly warned by the trial court to desist from further drug use. In April 2019, only three months after AS was returned to his care, respondent was arrested for a misdemeanor domestic violence assault and battery. Respondent failed to notify his caseworker of his arrest and incarceration. When the case worker and trial court learned that respondent had been incarcerated, AS was placed with Keck, as noted above. Although reunification remained the goal at that time, respondent was again arrested and incarcerated from September 2019 to February 2020. The court suspended parenting time on March 5, 2020, because there had been a significant period of time that AS had not seen respondent and it could have been damaging to AS to be reintroduced to respondent only to have respondent's rights terminated in the near future. When respondent's parental rights were terminated on August 7, 2020, he had not seen AS since September 10, 2019.
Tragically, we agree that there was ample evidence that respondent and AS were bonded, that respondent loved and cared deeply for AS, and respondent's care did not appear to pose any danger of physical harm to AS. Nevertheless, the trial court did not clearly err in concluding that the conditions that led to the adjudication continued to exist. At the time respondent's parental rights were terminated, he had not seen AS in nearly one year. AS was 4½ years old and during the pendency of his life he had only lived with respondent for three months. AS was not able to be returned to respondent's care because of respondent's continued criminal activity and incarceration, which in turn resulted in respondent being unable to establish a stable and consistent relationship with AS. Put more simply, respondent displayed a persistent pattern of choosing illegal drugs over his child despite repeated instructions and considerable lenity, and thereby absenting himself from his child's life.
The court also found that the conditions that led to the adjudication would not be rectified within a reasonable time considering AS's age. The trial court's finding is not clearly erroneous. AS was only returned to respondent for three months before he had to be removed because respondent was incarcerated. At the time respondent's parental rights were terminated, respondent had been placed in a foster home for more than a year, and had not seen respondent in almost a year because respondent had failed to establish that he could consistently care for AS because of criminal behavior and multiple terms of incarceration. We recognize that marijuana is no longer illegal in Michigan, but cocaine remains illegal, and respondent's protestations that his positive tests for cocaine were a setup defy plausibility. Given AS's age, there is no reasonable likelihood that the conditions that led to the jurisdiction would be rectified within a reasonable time.
Only a single statutory ground needs to be established to support termination of parental rights under MCL 712A.19b(3). In re Martin, 316 Mich App 73, 90; 896 NW2d 452 (2016). However, we find no error in the trial court's other stated grounds for termination.
B. MCL 712A.19b(3)(c)(ii)
A trial court may terminate parental rights under MCL 712A.19b(3)(c)(ii) if
[o]ther conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.The court found that, other than the conditions that led to adjudication, other conditions existed including, respondent's substance use and his failure to maintain consistent housing and employment because of his terms of incarceration.
Respondent testified positive for cocaine twice in April 2018, once in March 2019, and once in July 2019. Respondent also tested positive for marijuana on multiple occasions over the pendency of the case. After being released from prison in February 2018, respondent completed a substance abuse assessment. However, when he continued to test positive for substances, in April 2019, the court ordered that respondent submit to another substance abuse assessment. Respondent was referred for a second substance abuse assessment, but he failed to complete the assessment. Respondent also missed several drug screens throughout the course of the proceedings. The trial court took into consideration the fact that, because of COVID-19, respondent was unable to submit to drug screens from February 2020 to June 2020. However, respondent admitted that Hills contacted him and informed him that he could reinitiate drug screens on June 5, 2020. Respondent did not submit to any drug screens between June 5, 2020, and the time his rights were terminated on August 7, 2020, because respondent was "so discouraged" at that point.
Thus, despite being referred to substance abuse assessments and ordered by the court to refrain from using any controlled substances, the evidence established that respondent used substances throughout the course of the proceedings. At the time respondent's rights were terminated, he had chosen to no longer submit to drug screens. Implicitly, he had also chosen to continue using drugs instead of seriously pursuing reunification with AS. Accordingly, there was no indication that his substance use had been rectified. Moreover, on the basis of respondent's failure to remain substance free for any consistent period throughout the proceedings and his decision to no longer submit to drug screens, there was no reasonable likelihood that this condition would be rectified within a reasonable time considering AS's age.
The court also found that respondent had failed to maintain consistency in housing and employment because of his multiple terms of incarceration. The court noted that respondent had made progress in his services at times during the proceedings, but in May 2019, "things fell apart." Specifically, the court found that, because respondent was incarcerated from September 2019 to February 2020, he was not maintaining consistent housing and employment. Although respondent had multiple different living arrangements and jobs throughout the course of the proceedings, because respondent was incarcerated multiple times throughout the proceedings, including for a term of six months, his housing and employment were not consistent for significant periods of time. Thus, he could not create a stable environment for AS. We recognize that respondent made laudable efforts, but as noted, despite being expressly warned that he needed to choose between drugs or AS, defendant consistently chose drugs. On the basis of the proceedings as a whole, it was not clearly erroneous for the trial court to find that there was no reasonable likelihood that this condition would be rectified within a reasonable time considering AS's age.
C. MCL 712A.19b(3)(j)
The trial court did not err in finding clear and convincing evidence to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(j). The trial court may terminate parental rights pursuant to MCL 712A.19b(3)(j) if the court finds by clear and convincing evidence that "[t]here 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." Under MCL 712A.19b(3)(j), harm can be either physical or emotional. In re Hudson, 294 Mich App at 268.
Respondent argues that the trial court erred in terminating his parental rights under MCL 712A.19b(3)(j) because there was no evidence that respondent was ever physically abusive to AS, that he ever would be physically abusive to AS, or that AS was ever harmed while in respondent's care. We agree that there is no evidence respondent posed a physical danger to AS, but as noted, risk of emotional harm may also be considered under MCL 712A.19b(3)(j). In re Hudson, 294 Mich App at 268. There was a reasonable likelihood that AS could be emotionally harmed if returned to respondent's care. As stated earlier, AS was 4½ years old at the time respondent's parental rights were terminated, but he had only lived with respondent for three months of his life. Although there had been a bond between AS and respondent, AS had not seen respondent in almost a year when respondent's parental rights were terminated. In addition, respondent had been in placement with his foster family for more than a year. He was provided with all of his needs in the foster home. Importantly, AS was also placed with some of his siblings. Thus, there is a reasonable likelihood that AS could have been emotionally harmed if removed from a stable home that he shared with his siblings at his age. Moreover, because of respondent's history of substance abuse and incarceration, there was a reasonable probability that AS could experience emotional instability if returned to respondent's care only to be removed once more. Therefore, the trial court did not clearly err in terminating respondent's parental rights under MCL 712A.19b(3)(j).
V. BEST INTERESTS
Respondent argues that the trial court erred when it determined that it was in AS's best interests to terminate his parental rights. We disagree.
"If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). "In deciding whether termination is in the child's best interests, the court may consider 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." In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). In addition, the trial court may consider, as appropriate, the parent's history of committing domestic violence, the parent's compliance with a case service plan, the parent's history of interaction with the child, and the child's experiences in foster care, including the possibility of adoption. See In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).
The court found that, since May 2019, respondent had failed to benefit from services, which makes his parenting ability "highly suspect." The court found that AS needed permanency, finality, and stability because he was 4½ years old, and other than three months, he had been in nonrelative care most of his life. The court also found that AS was in a foster home that provided for his needs, and he was placed with his siblings.
These findings were supported by a preponderance of the evidence. Respondent was offered multiple services, and although he initially engaged and appeared to benefit, respondent was incarcerated twice in 2019, which resulted in AS being removed from his care and respondent not being able to exercise parenting time during his periods of incarceration. In addition, AS was living with his siblings, and the foster family provided AS with the permanency, finality, and stability that he needed. We also note that respondent was arrested, albeit apparently not charged, for committing domestic violence. As also noted, Keck had indicated a willingness to adopt AS and his siblings.
The trial court found that, although there was evidence of a bond between respondent and AS, respondent had not seen AS in nearly a year, which would diminish the bond. Respondent argues that any diminution in that bond was not caused by himself, but by the lawyer-guardian ad litem moving to suspend his parenting time. Respondent accurately observes that termination may not be based on a condition intentionally caused by petitioner. See In re B & J, 279 Mich App 12, 19-20; 756 NW2d 234 (2008). In that case, the petitioner reported the respondents to United States Immigration and Customs Enforcement, which deported the respondents, and the trial court thereafter found that the respondents' deportation precluded them from being able to provide proper care for the children. Id. at 15-17. This Court held that the "[p]etitioner was not entitled to seek termination of [the] respondents' parental rights under [MCL 712A.19b(3)(g)] in this case because [the] petitioner, itself, intentionally set out to create that very ground for termination." In re B & J, 279 Mich App at 19.
The situation in this matter is clearly distinguishable, because although the LGAL did move to suspend respondent's parenting time, the reason for that motion was that respondent's own conduct caused him to be incarcerated, which is not a circumstance created by the LGAL or by petitioner. Indeed, respondent does not even argue that petitioner or the LGAL took actions that created a condition that led to a specific ground for termination. Respondent only argues that the trial court should not be able to use that period of time against him regarding a lack of bond with AS. We disagree. The LGAL filed the motion to suspend parenting time because respondent had been incarcerated again; and reintroducing AS to respondent after not seeing him for six months, while a petition to terminate respondent's rights was pending, could confuse and harm AS. Furthermore, AS had previously exhibited concerning behaviors during parenting time. Therefore, although the LGAL moved to suspend parenting time, respondent's behavior and continued incarceration led to the LGAL needing to take measures to protect AS. In addition, there is no indication that the LGAL filed the motion to suspend respondent's parenting time for the purpose of making it easier to terminate respondent's rights. Thus, the trial court did not err in finding that it was in AS's best interests to terminate respondent's parental rights.
Affirmed.
/s/ Kathleen Jansen
/s/ Amy Ronayne Krause
/s/ Michael F. Gadola