IN RE COLON MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of J.S.C. and R.C. III, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
April 13, 2010
Petitioner-Appellee,
v
No. 293845
Oakland Circuit Court
Family Division
LC No. 04-688108-NA
ROBERTO COLON II,
Respondent-Appellant.
Before: JANSEN, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
Respondent appeals by right the trial court order terminating his parental rights to the
minor children under MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.
The trial court did not clearly err in finding that statutory grounds existed to terminate
respondent’s parental rights. On appeal from termination of parental rights proceedings, this
Court reviews the trial court’s findings under the clearly erroneous standard. MCR 3.977(J); In
re Sours, 459 Mich 624, 633; 593 NW2d 520 (1999). To terminate parental rights, the trial court
must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been
met by clear and convincing evidence. In re McIntyre, 192 Mich App 47, 50; 480 NW2d 293
(1991).
There was clear and convincing evidence to support all three statutory grounds for
termination. At the adjudication, respondent was incarcerated. At the termination hearing,
respondent was again incarcerated, albeit for the lesser crime of violating the curfew imposed as
part of his parole. Regardless of the crime, his incarceration prevented respondent from
completing or complying with the requirements of the parent/agency agreement. Despite early
progress, after two years of services and opportunities, respondent was essentially in the same
position as when this proceeding began. Failure to comply with the requirements of the
parent/agency agreement is evidence of respondent’s failure to provide proper care and custody
for the children. In re JK, 468 Mich 202, 214; 661 NW2d 216 (2003); In re Trejo, 462 Mich
341, 360-363; 612 NW2d 407 (2000). He had not obtained employment and refused to accept
several offers of steady employment because he did not “like” the jobs offered. Thus, he turned
down opportunities for steady income, required in order to provide proper care and custody for
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his children. Respondent demonstrated that he did not benefit from the programs and services
offered to him when he reverted to his criminal lifestyle and used cocaine, absconded from
parole, drove a car without permission, and stayed out after his curfew. Finally, the fact that
respondent had no history of child abuse was not sufficient to conclude that his children would
not be harmed if returned to his care. Respondent demonstrated that he could not take care of
himself, let alone two minor children. His willful disregard for the rules of his parole resulted in
a return to prison at the time of the termination hearing. Respondent’s conduct supported the
court’s conclusion that there was a reasonable likelihood that the children would be harmed if
placed in respondent’s care.
Respondent contends that he was denied his due process rights because the DHS and the
court failed to provide him with an initial service plan. Respondent’s failure to preserve this
issue for appeal by an objection in the trial court requires him to demonstrate plain error that
affected his substantial rights. See People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).
Respondent bases his due process argument on In re Rood, 483 Mich 73, 95-96; 763 NW2d 587
(2009), where the court held, in pertinent part, “Within 30 days of the child’s placement, and
before the court may enter an order of disposition in a proceeding under § 2(b), the petitioning
agency -- here the DHS -- must provide an initial service plan.” This holding is supported by the
requirements in MCR 3.965(E)(1), MCL 712A.13a(8)(a), and MCL 712A.18f(2).
However, even if respondent was not provided with an “initial service plan” within 30
days of the children’s placement, he has wholly failed to demonstrate how this purported plain
error affected his substantial rights. “‘The fundamental requisite of due process of law is the
opportunity to be heard.’” In re Rood, 483 Mich at 92, citing Grannis v Ordean, 234 US 385,
394; 34 S Ct 779; 58 L Ed 1363 (1914). Here, respondent was notified of every hearing. He was
present at every hearing, either by telephone or in person, and was represented by an attorney at
every stage in the proceedings. Respondent was incarcerated when the children were removed
from the mother. While incarcerated, he was presented with a parent/agency agreement, which
he signed. It was apparent that he knew what was required in the parent/agency agreement as
evidenced by the programs that he attended while incarcerated. Immediately upon his release,
respondent was provided with visitation and services with the goal of reunification. Throughout
these proceedings, the DHS provided services, referrals, and visitation with the children to
respondent, except for those times when respondent was incarcerated. Respondent has not
explained how the failure by the DHS to present him with an initial service plan while he was
incarcerated unfairly prejudiced him or interfered with his ability to comply with his treatment
plan or to be reunified with his children.
Respondent also contends that the DHS failed to provide reasonable services directed
toward reunification. A claim that the respondent was not provided reasonable services directed
toward reunification is relevant to the sufficiency of the evidence for termination of parental
rights. In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005); In re Newman, 189 Mich
App 61, 66-69; 472 NW2d 38 (1991). The record reflects that the DHS made every effort
toward reunification. Similarly, there is no evidence to support respondent’s claim that he was
treated as “an irksome barrier in the road to termination.” The court extended these proceedings
for over two years to give respondent a chance to demonstrate his progress. However,
respondent went back to his criminal lifestyle and was sent back to prison. His parental rights
were terminated because, once he was no longer in a controlled environment, respondent made
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poor choices, reverted back to his criminal lifestyle, and failed to comply with the requirements
of his parent/agency agreement as well as his parole.
Finally, the trial court did not err in finding that termination of respondent’s parental
rights was in the best interests of the children. The trial court’s decision regarding the children’s
best interests is reviewed for clear error. In re Trejo, 462 Mich at 356-367. At the termination
hearing, respondent was essentially in the same position as he was at the adjudication, and there
was no reasonable likelihood that he could rectify the conditions within a reasonable time. The
children, who had special needs, had been in foster care for over three years. Respondent may
have had good intentions but he deprived himself of the opportunity to demonstrate his parenting
potential when he participated in continued criminal conduct. He never reached the level of
unsupervised visits with the children. Respondent demonstrated that he did not have the
determination and fortitude to properly care for his children and to think of their needs. The
children needed and deserved permanency.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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