IN RE NATHAN LEE GREEN MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of T.M.A. and N.L.G., Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
September 17, 2009
Petitioner-Appellee,
v
No. 290820
Berrien Circuit Court
Family Division
LC No. 2007-000039-NA
COURTNEY ARENT,
Respondent-Appellant,
and
TERAM BYRD and LEE GREEN,
Respondents.
In the Matter of T.M.A., Minor.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 290821
Berrien Circuit Court
Family Division
LC No. 2007-000039-NA
TERAM BYRD,
Respondent-Appellant,
and
COURTNEY ARENT,
Respondent.
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___________________________________________
In the Matter of N.L.G., Minor.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 290822
Berrien Circuit Court
Family Division
LC No. 2007-000039-NA
LEE GREEN,
Respondent-Appellant,
and
COURTNEY ARENT,
Respondent.
Before: Sawyer, P.J., and Cavanagh and Hoekstra, JJ.
PER CURIAM.
In these consolidated appeals, respondent Courtney Arent appeals the termination of her
parental rights to her two children pursuant to MCL 712A.19b(3)(c)(i), (g) and (j), respondent
Lee Green appeals the termination of his parental rights to his son pursuant to §§ 19b(3)(g) and
(j), and respondent Teram Byrd appeals the termination of his parental rights to his daughter
pursuant to §§ 19b(3)(a)(ii), (g), and (j). We affirm.
We review a trial court’s finding that a statutory ground for termination was proven by
clear and convincing evidence for clear error. MCR 3.977(J); In re JK, 468 Mich 202, 209; 661
NW2d 216 (2003).
The trial court did not clearly err in finding that § 19b(3)(c)(i) was proven by clear and
convincing evidence with respect to respondent Arent, whose no contest plea to the original
petition provided the basis for the trial court’s exercise of jurisdiction over the children.
Although the original petition did not specifically refer to anger issues, it did refer to respondent
Arent’s substance abuse problem, and a psychological evaluation introduced at the initial
dispositional hearing linked respondent Arent’s drug abuse to her emotional issues. Thus, we
find no clear error in the trial court’s consideration of emotional issues in its evaluation of
§ 19b(3)(c)(i). A court may apprise itself of all relevant circumstances when evaluating the
conditions that led to the adjudication. In re Jackson, 199 Mich App 22, 26; 501 NW2d 182
(1993). Also, a court properly may consider evidence admitted at one hearing in all subsequent
hearings, because child protection proceedings are treated as a single, continuous proceeding. In
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re LaFlure, 48 Mich App 377, 391; 210 NW2d 482 (1973). Further, considering the evidence
that respondent Arent resumed using illegal drugs after displaying difficulty in controlling her
anger in front of the children in 2008, we find no clear error in the trial court’s finding that the
conditions that led to the adjudication continued to exist and were not reasonably likely to be
rectified within a reasonable time considering the children’s ages.
The trial court also did not clearly err in finding that § 19b(3)(g) was established by clear
and convincing evidence with respect to respondent Arent. The evidence showed that
respondent Arent regressed in her participation in services in 2008. Housing was the only area
where she had made progress. “[A] parent must benefit from services offered so that he or she
can improve parenting skills to the point where the children will no longer be at risk in the
parent’s custody.” In re Gazella, 264 Mich App 668, 676; 692 NW2d 708 (2005). Further, the
trial court did not clearly err in finding that § 19b(3)(j) was also established. Respondent Arent’s
regression in 2008 with respect to her participation in services and her continuing substance
abuse showed that the children would be at risk of harm if returned to her home. See In re
Gazella, supra at 676; see, also, In re Trejo, 462 Mich 341, 346 n 3; 612 NW2d 407 (2000)
(failure to substantially comply with court-ordered case service plan is evidence that returning
the child to the parent may cause a substantial risk of harm to the child’s physical or mental wellbeing).
Accordingly, we reject respondent Arent’s arguments that the statutory grounds for
termination were not established by clear and convincing evidence.
We similarly reject respondent Green’s arguments that the evidence did not support
termination of his parental rights under §§ 19b(3)(g) and (j). We agree with respondent Green
that, because he was not the subject of the earlier adjudication proceeding, legally admissible
evidence was required to establish the statutory grounds for termination as applied to him. MCR
3.977(1)(b); In re CR, 250 Mich App 185, 201-202; 646 NW2d 506 (2001). However, the mere
existence of hearsay evidence does not warrant reversal. Id. at 207. Respondent Green’s mere
assertion that various reports in respondent Arent’s case would be hearsay as applied to him is
insufficient to establish error. An appellant may not merely announce a position and leave it for
a reviewing court to discover and rationalize the basis of the claim. Mitcham v Detroit, 355
Mich 182, 203; 94 NW2d 388 (1959). In any event, we find no error requiring reversal.
Where a parent does not have custody of a child, parental fitness may only be evaluated
in other ways, such as attendance at court-ordered parenting classes, continued contact with the
child and caseworkers, and attendance at court hearings. In re Sours, 459 Mich 624, 638; 593
NW2d 520 (1999); see, also, In re JK, supra at 214. Here, while the caseworker gave favorable
testimony at the June 11, 2008, review hearing regarding respondent Green’s compliance with
drug screens and parenting time, the caseworker testified at the later termination hearing that
respondent Green thereafter regressed to the point where he was no longer participating in
parenting time or other services, or even maintaining contact with her to inquire about his child.
Further, while respondent Green did not testify at the termination hearing, his attorney
conceded that respondent Green was not then in a position to care for his child. Considering the
record as a whole, we find no clear error in the trial court’s finding that § 19b(3)(g) was proven
by clear and convincing evidence, nor are we persuaded that this finding was not supported by
legally admissible evidence. Further, considering the evidence regarding respondent Green’s
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lack of commitment to his son, as shown by his regression after the June 11, 2008, review
hearing, the trial court did not clearly err in finding that § 19b(3)(j) was also established by clear
and convincing evidence.
Lastly, respondent Byrd challenges both the existence of a statutory ground for
termination and the trial court’s assessment of his daughter’s best interests. We review both of
these issues for clear error. See In re JK, supra at 209. The evidence that respondent Byrd failed
to participate in services at the beginning of the case, despite being given an opportunity to do
so, and did nothing toward obtaining custody for more than 91 days, supports the trial court’s
determination that § 19b(3)(a)(ii) was sufficiently established.
We similarly find no clear error in the trial court’s finding that §§ 19b(3)(g) and (j) were
both established by clear and convincing evidence with respect to respondent Byrd. This case is
distinguishable from In re Dahms, 187 Mich App 644; 468 NW2d 315 (1991), and In re
Newman, 189 Mich App 61, 66; 472 NW2d 38 (1991), both of which involved circumstances
where there was evidence of the respondents’ actual participation in services. Further, unlike In
re Newman where the respondents were refused services, the evidence in this case showed
respondent Byrd’s lack of commitment to his daughter by his failure to participate in services
that were offered, and then, an inability to participate in services when he was incarcerated for
violating his parole. He was still incarcerated at the time of the termination hearing in February
2009, and his release date was uncertain. His daughter had already been in foster care for
approximately 23 months at the time of the termination hearing. Respondent Byrd was unable to
provide a home for her to achieve a stable living environment, but only proposed changing her
current placement. The evidence clearly showed that respondent Byrd would be unable to
provide proper care and custody within a reasonable time considering his daughter’s age.
We also reject respondent Byrd’s argument that the evidence that supported termination
under § 19b(3)(j) was based on conjecture. Considering respondent Byrd’s incarceration and the
other proofs, the trial court did not clearly err in finding that there was a reasonable likelihood
that the child would be harmed if placed in his care.
Finally, the record does not support respondent Byrd’s argument that the trial court failed
to apply the best interests standard in MCL 712A.19b(5), as amended by 2008 PA 199, effective
July 11, 2008. Consistent with the amended statute, the trial court affirmatively found that “it is
in the best interests of the minor child . . . to terminate the parental rights of the legal father
Teram Byrd.” We find no clear error in this finding. See MCR 3.977(J); In re JK, supra at 209.
Thus, the trial court did not err in terminating respondent Byrd’s parental rights to the child.
Affirmed.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Joel P. Hoekstra
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