17.7Statutory Standards for Termination of Parental Rights Under Juvenile Code–§19b(3) Factors

A court may terminate a parent’s parental rights to his or her child if the court finds by clear and convincing evidence that one or more of the factors listed under MCL 712A.19b(3) exist. MCL 712A.19b(3); MCR 3.977(E)(3); MCR 3.977(F)(1)(b); MCR 3.977(H)(3)(a).

Note: The court must also find that the termination of parental rights is in the child’s best interests. See Section 17.8 for a detailed discussion of the requirements for the best interest step.

A court may terminate one parent’s parental rights without terminating the other parent’s parental rights. In re Marin, 198 Mich App 560, 566 (1993) (use of singular “parent” throughout MCL 712A.19b(3) indicates legislative intent to allow termination of one parent’s parental rights).

A court may not terminate parental rights to a child unless at least one statutory ground is proven with regard to that child. In re SLH, 277 Mich App 662, 674 (2008) (where the trial court only made findings with respect to one child, the order terminating a respondent-father’s parental rights to two other children “must be set aside”).

It is a violation of a parent’s due process rights for a state or state agency to “deliberately take[] action with the purpose of ‘virtually assur[ing] the creation of a ground for termination of parental rights,’ and then proceed[] to seek termination on that very ground. In re B & J, 279 Mich App 12, 19-20 (2008) (the DHHS violated respondent-parents’ due process rights when it reported them as illegal immigrants to federal officials then sought termination on the ground that they were unable to care for their children because they had been deported).

A.Termination on Grounds of Desertion–§19b(3)(a)

Under MCL 712A.19b(3)(a), the court may terminate a parent’s parental rights if it finds by clear and convincing evidence that “[t]he child has been deserted under either of the following circumstances:

(i) The child’s parent is unidentifiable, has deserted the child for 28 or more days, and has not sought custody of the child during that period. For the purposes of this section, a parent is unidentifiable if the parent’s identity cannot be ascertained after reasonable efforts have been made to locate and identify the parent.

(ii) The child’s parent has deserted the child for 91 or more days and has not sought custody of the child during that period.”

1.Evidence Supported Termination Under §19b(3)(a)

Termination under §19b(3)(a)(ii) was supported by clear and convincing evidence where the respondent-father had moved out-of-state, did not provide support for his children, failed to visit the children since they were removed from the mother’s home (although he did have some phone-contact with them), and failed on two occasions to “make himself available for [a court-ordered] assessment of the suitability of his home,” despite receiving ample notification of the visits. In re Laster, 303 Mich App 485, 492 (2013).

Termination under §19b(3)(a)(ii) was supported by clear and convincing evidence where the respondent-mother “failed to make any substantial effort to communicate with [the child] or obtain assistance in regaining custody of [the child] for a period well beyond the [91-day] statutory period.” In re TM (After Remand), 245 Mich App 181, 193-194 (2001), overruled on other grounds by In re Morris (Morris III), 491 Mich 81 (2012)¹ (respondent-mother’s efforts to obtain custody of her child years earlier was irrelevant).

Termination under §19b(3)(a)(ii) was supported by clear and convincing evidence where the respondent-noncustodial parent failed to appear at hearings, failed to provide support, and had not seen his son for over two years. In re Mayfield, 198 Mich App 226, 230, 235 (1993).

“The plain language of MCL 712A.19b(3)(a)(ii) does not require that the requisite 91-day period of abandonment occur after a judicial determination of paternity has been made.” In re L S Knipp, ___ Mich App ___, ___ (2024) (the respondent-father contended that the 91-day period of desertion under §19b(3)(a)(ii) did not begin to run until paternity was established). The Knipp Court noted that, in the context of MCL 712A.19b(3)(g)—failure to provide proper care or custody for the child under certain circumstances—”this Court has stated that the actions of a putative father occurring before he perfects paternity may be considered for purposes of terminating parental rights.” Knipp, ___ Mich App at ___ (quotation marks and citations omitted). According to Knipp, the same approach applies to termination of parental rights under §19b(3)(a)(ii). Knipp, ___ Mich App at ___. Termination under §19b(3)(a)(ii) was supported by clear and convincing evidence where respondent-father had not had any contact with his 17-month-old son since the child’s birth even though he suspected he was the father. Knipp, ___ Mich App at ___. Further, even after respondent’s paternity was established, he did nothing to seek custody of, or parenting time with, the child, and he provided no support to the child. Id. at ___. The Knipp Court concluded that “the trial court did not err by considering respondent’s conduct after being ordered to determine paternity, but before a judicial determination of paternity was made, in determining whether 91 days had elapsed as required by MCL 712A.19b(3)(a)(ii).” Knipp, ___ Mich App at ___.

2.Evidence Did Not Support Termination Under §19b(3)(a)

Termination under §19b(3)(a)(ii) was not supported by clear and convincing evidence where “[a]lthough [the] respondent-mother had previously left [her] children with their maternal grandmother for an extended period of time, that occurred approximately one and a half years before the filing of the termination petition. And after that time, [the] respondent-mother did have contact with the children and did participate in some, although very few, of the court hearings and required services.” In re Laster, 303 Mich App 485, 492 (2013).

B.Termination on Grounds of Physical Injury or Sexual Abuse–§19b(3)(b)

Under MCL 712A.19b(3)(b), the court may terminate a parent’s parental rights if it finds by clear and convincing evidence that “[t]he child or a sibling^[2] of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:

(i) The parent’s act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent’s home.

(ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent’s home.

(iii) A nonparent adult’s^[3] act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse by the nonparent adult in the foreseeable future if placed in the parent’s home.”

Sections 19b(3)(b)(i)-(iii) are interpreted in the context of each other; thus, the application of §19b(3)(b)(ii), is no broader than (b)(i) or (b)(iii). In re LaFrance, 306 Mich App 713, 725 (2014). “[U]nder these provisions[,] . . . for physical injury to fall within the MCL 712A.19b(3), it must be caused by a ‘parent’s act’ or a ‘nonparent adult’s act’ and not merely contributed to by a unintentional omission.” Id. at 725.

Termination of a parent’s parental rights under §19b(3)(b) is permissible “even in the absence of definitive evidence regarding the identity of the perpetrator when the evidence does show that the respondent or respondents must have either caused or failed to prevent the child’s injuries.” In re Ellis, 294 Mich App 30, 35-36 (2011) (trial court properly terminated both parents’ parental rights under §19b(3)(b) and §19b(3)(k) where the trial court concluded that one parent must have abused the child while the other parent failed to prevent the child abuse when the child suffered “numerous non-accidental injuries that likely occurred on more than one occasion[,]” and the child’s parents lived together and shared in the child care responsibilities as the child’s sole caregivers).

1.Termination Under §19b(3)(b)(i)

For purposes of terminating parental rights under §19b(3)(b)(i), “[i]t is [] appropriate for a trial court to evaluate a respondent’s potential risk to the other siblings by analyzing how the respondent treated another one of his or her children, albeit a child the respondent gave up for adoption. Though no legal relationship exists in such a situation, the reality is that respondent is still the biological [parent] of the child who was given up for adoption and that child is the biological half-sibling of the respondent’s other children.” In re Hudson (Sword-Pope), 294 Mich App 261, 266 (2011) (respondent-mother was convicted of first-degree criminal sexual conduct relating to sexual activity she had with her 14-year-old biological son whom she had given up for adoption at birth, but reconnected with through MySpace).

a.Evidence Supported Termination Under §19b(3)(b)

Termination of the respondent-father’s parental rights to his daughter under §19b(3)(b)(i) was supported by clear and convincing evidence where “[t]he evidence . . . established that [the father] had . . . [committed] an act of [CSC] involving penetration[]” against her. In re Schadler, 315 Mich App 406, 409 (2016) (noting that “medical findings corroborated [the daughter’s] statements, and [the father’s] explanation of the circumstances was not consistent with the statements or the medical findings”).

Termination under §19b(3)(b)(i) was supported by clear and convincing evidence where, in a separate proceeding, the respondent-father pled guilty to first-degree criminal sexual misconduct for sexually abusing his stepdaughter, who was the minor children’s half-sister. In re Jenks, 281 Mich App 514, 517-518 (2008) (stating that the respondent-father’s plea constituted sufficient evidence that “a reasonable likelihood [existed] that the minor children would suffer injury or abuse in the foreseeable future if placed in respondent’s home”).

Termination under §19b(3)(b)(i) was supported by clear and convincing evidence where the testimony at trial indicated that the respondent-father had sexually abused his oldest daughter from the age of three, fractured her arm, fractured his son’s skull with a blunt object, and that he had locked his twin daughters in a closet for approximately 12 hours without food or water to conceal them from investigators. In re Vasquez, 199 Mich App 44, 51-52 (1993).

b.Evidence Did Not Support Termination Under §19b(3)(b)

Termination under §19b(3)(b)(i) was not supported by clear and convincing evidence where although “[t]here was testimony that before the removal of the children, one of the children was sexually abused by the daughter of [the] respondent-mother’s girlfriend[,] . . . [the] respondent-mother ended that relationship and moved out of the house before adjudication occurred, which was approximately 18 months before the termination hearing, and there was no evidence that [the] respondent-mother associated with other known abusers.” In re Laster, 303 Mich App 485, 492 (2013).

Termination under §19b(3)(b)(i) was not supported by clear and convincing evidence where “there was no evidence that the children incurred abuse while in the care of [the] respondent-father.” In re Laster, 303 Mich App at 492.

2.Termination Under §19b(3)(b)(ii)

“[§19b(3)(b)(ii)] is intended to address the parent who, while not the abuser, failed to protect the child from the other parent or nonparent adult who is an abuser.” In re LaFrance, 306 Mich App 713, 725 (2014). Thus, §19b(3)(b)(ii) is not grounds for termination where the child was injured by the respondent-parent’s “negligent failure to respond to an accidental injury or naturally occurring medical condition” when the accidental injury or naturally occurring medical condition was “not caused by an ‘act’ of a parent or other adult.” In re LaFrance, 306 Mich App at 724-725 (holding that §19b(3)(b)(ii) did not apply where the child’s dehydration, resulting kidney failure, and other complications were the result of the respondent-father’s “failure to respond” to the child’s virus-related symptoms, which were not caused by an act of a parent or other adult).⁴

Where a case involves termination of a parent’s parental rights under §19b(3)(b)(ii) to multiple children, the statute “d[oes] not require that there be clear and convincing evidence that the children [are] at risk from the same abuser[; r]ather, [§19b(3)(b)(ii)] addresses the harm occasioned by a parent who is unwilling or unable to protect his or her children from abuse.” In re Gonzales/Martinez, 310 Mich App 426, 432 (2015).

a.Evidence Supported Termination Under §19b(3)(b)(ii)

Termination under §19b(3)(b)(ii) was supported by clear and convincing evidence where “[the] respondent[-mother] did not believe her children’s revelations about [her boyfriend abusing them despite there being evidence supporting] the abuse, . . . [the] respondent[-mother] ‘did nothing to stop’ the abuse after [one of her] child[ren] told [her] about it[, and] . . . [the] respondent[-mother] had the opportunity to prevent the abuse, but failed to do so.” In re Gonzales/Martinez, 310 Mich App 426, 431-432 (2015). “Th[is] evidence established that [the] respondent[-mother] placed her desire to be with her boyfriend–despite his abuse–over the needs of her children, and there was evidence that she would likely continue placing her personal desires over her children’s welfare.” Id. at 432.

Termination under §19b(3)(b)(ii) was supported by clear and convincing evidence where the respondent-mother failed to stop the respondent-father from physically harming their child, Andrew, when he hit Andrew’s finger with a hammer and tied him to a chair in her presence; although the respondent-mother filed for a personal protection order and divorced the respondent-father, she continued to place her children in danger by associating with known sex offenders, leaving her children with them, and allowing one of the sex offenders to live with her. In re Archer, 277 Mich App 71, 74-75 (2007).

Termination under §19b(3)(b)(ii) was supported by clear and convincing evidence where the respondent-mother continued to allow her children to stay at the home of an adult acquaintance known as “Uncle Lenny” after her children reported that he was sexually abusing them. In re Brown/Kindle/Muhammad, 305 Mich App 623, 636-637 (2014). The respondent-mother confronted “Uncle Lenny,” who was a friend of a friend and whose full name and address she did not know, about the alleged abuse; however, “Uncle Lenny” denied abusing the children, and the respondent-mother continued to allow the children to stay with him despite disclosures about the abuse from all three of her children. Id. at 636. The Court noted that it was clear that the respondent-mother “was in a position to prevent the abuse and failed to do so and that the children would have been at risk of harm in her care, justifying termination under [§19b(3)(b)(ii)].”

b.Evidence Did Not Support Termination Under §19b(3)(b)(ii)

Termination of the respondent-mother’s parental rights under §19b(3)(b)(ii) was not supported by clear and convincing evidence where she ended her relationship with the abusive respondent-father approximately 18 months before the termination hearing, and although her new boyfriend was abusive, her children were not present when the boyfriend assaulted her, the boyfriend did not have a history of abusive behavior, and he was attending violence counseling.⁵ In re Sours, 459 Mich 624, 634-636 (1999) (stating that these facts did not support a finding that it was reasonably likely the children would be harmed in the foreseeable future if placed in the respondent-mother’s home, as required by §19b(3)(b)(ii)]).

3.Termination Under §19b(3)(b)(iii)

Termination under §19b(3)(b)(iii) was supported by clear and convincing evidence where the respondent-mother continued to allow her children to stay at the home of an adult acquaintance known as “Uncle Lenny” after her children reported that he was sexually abusing them. In re Brown/Kindle/Muhammad, 305 Mich App 623, 636-637 (2014). The respondent-mother confronted “Uncle Lenny,” who was a friend of a friend and whose full name and address she did not know, about the abuse. Id. at 636. However, “Uncle Lenny” denied abusing the children, and the respondent-mother continued to allow the children to stay with him despite disclosures about the abuse from all three of her children. Id. The Court noted that it was clear that the respondent-mother “was in a position to prevent the abuse and failed to do so.” Id.

C.Termination on Grounds of Failure to Rectify Conditions Following Court’s Assumption of Jurisdiction–§19b(3)(c)

Under MCL 712A.19b(3)(c), the court may terminate a parent’s parental rights if it finds that “[t]he parent was a respondent in a proceeding brought under [the Juvenile Code], 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.

(ii) Other 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.”

1.Termination Under §19b(3)(c)(i)

a.Evidence Supported Termination Under §19b(3)(c)(i)

Termination under §19b(3)(c)(i) supported the Court of Appeals conclusion that “the trial court did not clearly err in finding that petitioner made reasonable efforts to reunify respondent-father with his child.” In re A Atchley, ___ Mich App ___, ___ (2022). Respondent-father asserted that fixing his phone and transportation problems would have allowed him to “better participate in the services offered.” Id. at ___. The evidence related to the respondent-father was contradictory—he “frequently complained about his telephone [but] never asked for assistance in obtaining a phone.” Id. at ___. Despite the respondent-father’s phone problems, the caseworker “nevertheless communicated frequently with him both in person and via text messages.” Id. at ___. “Further, the record reflect[ed] that respondent-father’s phone issues were not so significant as to prevent him from frequently participating in court proceedings using Zoom, a video conferencing app.” Id. at ___. “Respondent-father missed multiple visits [with his child], seemingly without regard to whether they were in-person or over Zoom.” Id. at ___. The petitioner made repeated accommodations in response to respondent-father’s requests. Id. at ___. Respondent-father did not cooperate with the substance-abuse or domestic-violence providers—“he continued to miss drug screens and to test positive for amphetamines and methamphetamines, and THC.” Id. at ___. In addition, respondent-father failed to engage with services or respond to referrals aimed at addressing domestic violence. Id. at ___. Respondent-father’s parental rights were properly terminated under MCL 712A.19b(3)(c)(i), because no evidence indicated that he could, within a reasonable time given the child’s age, be able to rectify the conditions that resulted in the child’s removal.   Atchley, ___ Mich App at ___.

In Atchley, ___ Mich App at ___, termination of parental rights was appropriate where respondent-mother argued that the COVID-19 pandemic required that reasonable efforts be “more extensive than what might normally be required” and “that the ‘standard amount of time’ was inadequate to provide her with a ‘true opportunity for reunification.’” Id. at ___. “However, she [did] not identify what additional services should have been provided or detail how the services provided throughout the case were inadequate.” Id. at ___. Respondent-mother claimed she needed more time but did not produce “any evidence indicating that the trial court erred by finding that she would be unable to rectify the conditions leading to adjudication within a reasonable time considering the age of her child.” Id. at ___. Further, respondent-mother “completed a substance-abuse assessment, but did not follow through with the recommendations.” Id. at ___. “She did not follow through with referrals for mental-health counseling” and failed to attend any sessions when she did schedule them. Id. at ___. Respondent-mother failed to comply with the drug-screening, “tested positive, missed drug screens, or refused to submit to the screens.” Id. at ___. According to the Court, “even in light of the pandemic, [it discerned] no clear error in the trial court’s finding that petitioner made reasonable efforts to reunify respondent-mother with the child.” Id. at ___. “[D]espite being provided with services that specifically accounted for the pandemic—including mobile drug screening and telehealth visits—respondent-mother had made virtually no progress toward reunification.” Id. at ___. Evidence indicated that there was no reasonable likelihood that respondent-mother could rectify the conditions resulting in the child’s removal. Id. at ___.

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence “that respondent could not provide proper supervision to the children and would not be able to do so within a reasonable time given the children’s ages.” In re Jackisch, 340 Mich App 326, 337 (2022).⁶ In Jackisch, the Court detailed the respondent’s “poor prognosis for ever becoming an independent parent.” Id. at 337. The Court noted that respondent struggled (1) “to properly supervise the children during parenting time,” (2) “to handle multiple children at once,” (3) “to engage with [her children] during visits,” frequently ignoring one child when focused on another child, (4) to show that she benefited from more than three years of services, (5) to provide proper discipline and instead initiated inappropriate discipline that increased “the children’s behavioral problems,” (6) “to understand the children’s emotional cues,” (7) “to follow through with the direction of therapists regarding [one child’s] care,” and (8) to acknowledge the severity of one child’s behavior. Id. at 336, 337. In addition, respondent supplied the children with inappropriate sweets, which was contrary to one child’s dental problems, neglected one child’s medical needs, initially failed to show up for mental health counseling, and sometimes failed to refill her mental health prescriptions. Id. at 330, 331. “Overall, respondent showed a consistent pattern of failing to understand, appreciate, and respond appropriately to the medical and mental health needs of herself and her children.” Id. at 337-338.

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where “[r]espondent[-mother] had made little, if any, progress in addressing the main reasons the court took jurisdiction over the child”; “[t]here [were] numerous references to respondent’s having been told multiple times by the court, the agency and the [Guardian Ad-Litem (GAL)] that neither she nor her child were to associate with [the minor child’s alleged biological father],” and “[d]espite respondent’s denials, substantial evidence was presented that respondent had continued to voluntarily associate with [the minor child’s alleged biological father] and had allowed the child to be around him”; respondent’s therapist “testified that [respondent] continued to lack insight, . . . was unable or unwilling to take responsibility for her actions, . . . show[ed] an increase in her rage and inability to control herself[, and] . . . opined that respondent’s continued poor decisions in choosing relationships with abusive men presented a risk to the child’s safety[; and r]espondent’s caseworker expressed these same concerns, and noted that respondent had obtained a second psychological evaluation, which indicated that she was likely to have problems with anger management, impulsiveness, and acting out.” In re Kaczkowski, 325 Mich App 69, 76-79 (2018).

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where the respondent-mother “made minimal progress” toward rectifying the conditions that led to her child’s removal when she failed to seek employment and instead “provided a number of excuses as to why she could not work, . . . did not provide petitioner with any documentation of her job search,” “belie[ved] that she did not need to work,” and had no intentions of working; she failed to seek suitable housing and instead moved into an apartment that did not have handicap-accessible ramps to accommodate her handicap child and refused petitioner’s offer to help find suitable housing; she “failed to address the main barriers that her mental health posed to the child’s care” when she “met with a number of therapists over the course of the case, but failed to provide the caseworker with a release for her most current mental-health provider so that petitioner could track her progress, . . . there [was] no indication that respondent benefited from any of these services, . . . [she] refused to address the issues that caused [her child’s] removal, and continued to act with hostility toward the child’s medical providers and foster parents” (hostility that resulted in an altercation in the hospital and a suspension of her parenting time); and she failed to show any “progress toward demonstrating her ability to care for the child’s extensive medical needs” when she “missed 30 of the child’s 62 scheduled doctor appointments, surgeries, or other procedures and [she] continued to be confrontational with medical personnel and their treatment recommendations,” and admitted to having “inadequate training regarding the minor child’s feeding tube.” In re Smith, 324 Mich App 28, 47-49 (2018).⁷

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where although the respondent-mother “made significant progress with the parenting aspect of her service plan[,]” her psychological evaluation indicated that she was “emotionally immature and likely to engage in relationships with exploitive men who would put her children at a risk of harm[,]” to which her oldest daughter “was particularly vulnerable to abuse and harm because of her autism[,]” and “[d]uring the two-year pendency of this case, [she] continued to invite men into her home[, one of which] had a criminal background[, and] the other only left [her home] after the police were called.” In re White, 303 Mich App 701, 712 (2014).

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where “[i]n the approximately two years that the children were in the court’s temporary custody, [the] respondent-mother failed to obtain suitable housing[,] . . . she provided multiple false addresses to the agency[,] . . . there was evidence [during the termination hearing] that [she] was living in a shelter[, and a]lthough she testified that she would be obtaining a three-bedroom home once she received an income tax refund, given her inability to obtain suitable housing during the duration of the reunification plan, there [was] no indication that this would occur within a reasonable time.” In re Laster, 303 Mich App 485, 493 (2013).

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where “[the] respondent-father had not provided for the children and there was no evidence that he had obtained suitable housing, considering he twice failed to participate in [a court-ordered] assessment of the suitability of his home,” despite receiving ample notification of the visits. In re Laster, 303 Mich App at 493.

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where “[the] respondent[-parents] failed to comply or benefit sufficiently from their participation in services in accordance with the court-ordered treatment plans” when the respondent-mother, “[a]fter completing a 30-day inpatient substance abuse program, . . . experienced a relapse in her drug use[,]” she was “arrested three times on charges of retail fraud and home invasion[,]” and she “admitted that her participation in the home invasion was based on her intention to steal prescription drugs[;]” “[the] respondent[-]father was incarcerated for one-half of the time th[e] case remained open[;]” both respondent-parents “missed numerous drug screens,” and “[a]t the time of the final hearing, neither [respondent-]parent was physically available to care for the child[;]” and “the trial court was legitimately concerned with the ability of [the] respondent[-parents] to remain clean, sober, and out of prison for sufficient blocks of time in order to be available to provide adequate care for their minor child.” In re Frey, 297 Mich App 242, 244-245 (2012) (“[t]he primary condition leading to the adjudication in this matter was [the] respondent[-parents’] failure to resolve issues pertaining to [the] respondent[-father’s] alcohol abuse and [the] respondent[-mother’s] substance abuse[, and] . . . during the pendency of the proceedings, issues came to light pertaining to [the] respondent[-parents’] inability to provide adequate housing and financial support for the minor child, and that [the] respondent[-parents] were involved in criminal activity”).

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where despite the respondent-mother’s efforts to treat her longstanding drug addictions, she continued to battle them, she was not able to complete a drug treatment program, she was unemployed and lacked housing, “she would require a lengthy period of assessment, counseling, and supervision before reunification with her child could be considered[, and] . . . the two years [the child] already had spent in foster care, her entire life, constituted too long a period to await the mere possibility of a radical change in respondent[-]mother’s life.”]” In re Williams, 286 Mich App 253, 272-273 (2009) (conditions leading to adjudication were respondent-mother’s longstanding drug addiction, repeated failure to complete drug treatment program, and failure to provide adequate housing or find employment).

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where the respondent-father failed to follow the parent-agency agreement of submitting to regular alcohol screens and continued to drink, the children’s school attendance was still an issue, neither respondent-parent was able to adequately manage resources, and the respondent-parents only showed a slight benefit from ten years of services, including intensive services provided before this case began. In re Foster (Tommy), 285 Mich App 630, 631-633 (2009) (conditions leading to adjudication were the underlying conditions “surrounding the temporary wardship over [the child’s] older siblings[;]” “[t]he underlying conditions included respondent[-]father’s drinking, the children’s poor school attendance, and respondent[-parents’] inability to manage their household and finances despite receiving extensive services, which resulted in two evictions and a recurring lack of food).

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where the respondent-mother had not made progress toward finding adequate housing for the children and she was not likely to do so in the foreseeable future; she continued to miss drug screens despite the court’s warnings, which had resulted in the suspension of her visitation with the children; and even if she had been afforded an extended period of time to rectify the conditions, as might be necessary with the older children, there was not a reasonable likelihood that she would have been able to do so within a reasonable time. In re LE, 278 Mich App 1, 27-28 (2008) (as related to §19b(3)(c)(i), conditions leading to adjudication were respondent-mother’s failure to provide adequate housing or employment, and her longstanding substance abuse problem).

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where the respondent-mother did not demonstrate that she could provide adequate housing, missed roughly half of the scheduled visitations, continued an abusive relationship, and did not undergo counseling. In re AH, 245 Mich App 77, 87-88 (2001) (conditions leading to adjudication were previous child protection petitions filed with respect to respondent-mother’s other children, respondent-mother’s arrests for domestic violence, respondent-mother’s relationship with a man who had substance abuse issues and was listed as a perpetrator of child abuse or neglect, and respondent-mother’s history of mental illness combined with her failure to take appropriate medication).

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where the respondent-mother failed to find and maintain suitable housing for her three children and failed to establish a custodial plan for the children before the “best interests phase” of the termination hearing. In re Trejo, 462 Mich 341, 357-360 (2000) (conditions leading to adjudication were respondent-mother’s failure to provide adequate housing and care for her children).

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where the respondent-mother failed to find adequate housing for her children, failed to provide numerous drug screens, had a continuing pattern of missing drug treatment therapy sessions, and relapsed while her children were under the court’s jurisdiction, and where two years elapsed between the filing of the supplemental petition and the termination hearing. In re Powers, 244 Mich App 111, 118-119 (2000) (conditions leading to adjudication were respondent-mother’s failure to provide adequate housing for her children and her alcohol and drug abuse).

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where the respondent-mother’s alcoholism left her unable to care for her two sons, one of whom suffered from fetal alcohol syndrome, and although she attended (but did not complete) inpatient treatment programs and participated in counseling, the respondent-mother continued to drink while her children were under the court’s jurisdiction. In re Conley, 216 Mich App 41, 43-44 (1996) (condition leading to adjudication was respondent-mother’s alcohol addiction).

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where the respondent-mother’s “incarceration[] continued to exist and there was no reasonable likelihood that the condition could be rectified within a reasonable time.” In re McIntyre, 192 Mich App 47, 51 (1991) (condition leading to adjudication was respondent-mother’s extended incarceration). The Court also found that the respondent-mother’s planned placement of the child with a relative was inappropriate, and termination was proper “because permanent custody was in the best interest of the children[.]” In re McIntyre, supra at 52.

Termination under §19b(3)(c)(i) was supported by clear and convincing evidence where the two-to-three-year time period necessary for the respondent-mother’s rehabilitation was unreasonable given the ages and “pervasive behavior disorders” of the children: “two of the children would frequently act like wild dogs, barking incessantly and eating off their plates without using utensils[,] [t]he youngest child demonstrated signs of impaired socialization, indicating an impoverished home environment, and the oldest demonstrated behavior indicative of sexual abuse.” In re Dahms, 187 Mich App 644, 646-648 (1991) (respondent-mother claimed she was denied “reasonable time” within which to rectify the conditions leading to adjudication, as required by §19b(3)(c)(i)).

Termination under §19b(3)(c)(i) of the respondent-father’s parental rights to his youngest child was supported by clear and convincing evidence where the respondent-father admittedly failed to “notice something amiss with, or otherwise attend to, his youngest child as she went several hours without taking nourishment or fluid[,]” which resulted in a life-threatening condition due to dehydration, the respondent-father had persistent substance-abuse problems, and the respondent-father failed to “participate in, or benefit from, services relat[ed] to caring for a child with cerebral palsy, or to attend most of that child’s medical appointments[,]” all of which heightened concerns that the medical neglect could recur. In re LaFrance, 306 Mich App 713, 728-729 (2014)

Termination under §19b(3)(c)(i) of the respondent-mother’s parental rights to her youngest child was supported by clear and convincing evidence where she tested positive for methadone and THC during her pregnancy with that child, admitted using opiates for years, demonstrated behavior while in the hospital for the delivery that caused medical staff to question her ability to care for a newborn, and “even after the infant’s cerebral palsy diagnosis, [the] respondent-mother failed to attend virtually all of the dozens of medical appointments for the baby, failed to attend programs intended to educate her about that condition, and refused to sign paperwork to facilitate the child[] receiving physical therapy.” In re LaFrance, 306 Mich App at 729. “[T]he failure to participate in services directly linked to the ability to care for a special needs, or medically fragile, child bears directly on issues of neglect.” Id. at 729-730.

b.Evidence Did Not Support Termination Under §19b(3)(c)(i)

Termination of the respondent-mother’s parental rights under §19b(3)(c)(i) was not supported by clear and convincing evidence where “[t]he conditions that led to mother’s adjudication was her use of marijuana during her pregnancy,” but “by the termination hearing, there was no evidence that mother’s use of medical marijuana was having any negative effect on her ability to parent or causing any risk of harm to [the child].”⁸ In re Richardson, 329 Mich App 232, 252 (2019). “The concerns expressed in the proceedings . . . were based more on the referee’s speculation that mother’s use of medical marijuana might lead to creating a harmful environment for [the child] even though the overwhelming evidence related to mother’s current medical marijuana use and parenting skills indicated just the opposite. . . . There must be facts within the record demonstrating that the parent’s acts are actually harming or presenting an articulable risk of harm to the child, and the trial court cannot simply presume a risk of harm from its own prior experiences or personal disapproval of a parent’s choices. . . . Rather, in this case, the record reveal[ed] that the referee essentially placed the burden on mother to demonstrate her fitness as a parent and her ability to provide proper care and custody, which is an unconstitutional means of deciding whether to terminate parental rights.” Richardson, 329 Mich App at 254-255.

There was not clear and convincing evidence under §19b(3)(c)(i) “that father was harming or presenting an articulable risk of harm to [the child], either based on his own actions or based on his plan of relying on [the child’s] mother to care for the child in their joint home while he worked.” Richardson, 329 Mich App at 257. The father’s parental rights were “terminated essentially because of mother’s medical marijuana use[, but] . . . there was no evidence to suggest that [the child’s] mother presented a current risk of harm to the child despite her use of medical marijuana.” Id. at 256. In addition, “the referee appeared to fault father for the nature of his work schedule and how it interfered with his ability to participate in various services[, but] . . . [f]ather testified that he was concerned about keeping his job, which ‘looked very good for [his] parole officer’ and would allow him to remain out of prison, . . . [that] he would be laid off for a period of time in the winter, during which time he could participate in more services[, and] . . . there was evidence that father had shown improvement in his parenting skills during his parenting time visits . . . following his release [from incarceration].” Id. at 256. The referee supported his decision by referencing to drug tests for father that were positive for marijuana and cocaine[, b]ut father denied using these drugs, testified about the loose adherence to procedures at the drug- testing facility, and testified that he had [] to complete drug screens as part of his parole and did not have any parole violations.” Id. at 257.

Termination of the respondent-father’s parental rights under §19b(3)(c)(i) was not supported by clear and convincing evidence because his “incarceration alone [was] not a sufficient reason for termination of parental rights[]” where he provided proper care and custody through the child’s placement with the child’s grandmother (she having acted as the child’s caregiver since birth) during his incarceration (“petitioner[-DHHS] improperly determined that the grandmother’s criminal history barred her outright from [becoming a licensed foster care provider]”);⁹ and the respondent-father although “unable to make significant progress on his case service plan while incarcerated[,]” demonstrated that he “did participate in services meaningfully while he was not incarcerated.” In re Pops, 315 Mich App, 590, 598, 599 (2016) (emphasis added).

Termination of the respondent-mother’s parental rights under §19b(3)(c)(i) was not supported by clear and convincing evidence where the condition that led to adjudication—the father’s abuse and the respondent-mother’s failure to protect the children from it—did not exist 182 days or more after the initial dispositional hearing. In re Sours, 459 Mich 624, 636-637 (1999) (the respondent-mother took steps to protect her children from the abuse by ending her relationship with the abusive father approximately 18 months before the termination hearing).¹⁰ 

Termination under §19b(3)(c)(i) was not supported by clear and convincing evidence where the DHHS never gave the respondent-parents adequate instruction on how to maintain a clean home. In re Newman, 189 Mich App 61, 65-71 (1991) (as related to §19b[3][c][i], conditions leading to adjudication were heating the home with an inappropriate device, the home was unsanitary, and the children were dirty, hungry, and had lice).

Termination under §19b(3)(c)(i) of the respondent-parents’ parental rights to their three older children was not supported by clear and convincing evidence where, although the respondent-parents failed to “gain control over their substance-abuse habits[,]” there was no evidence “that either respondent[-parent] had ever abused or neglected any of their three older children.” In re LaFrance, 306 Mich App 713, 730 (2014). Although the court did not clearly err by terminating the respondent parents’ respective parental rights to the older children’s younger sibling, the doctrine of anticipatory neglect did not apply in relation to whether their parental rights to the older children should also be terminated because the older children did not require special medical care like their younger sibling, the respondent-parents cared for the older children from birth without incident, the only allegation of neglect and abuse related to the youngest child, and “drug use alone, in the absence of any connection to abuse or neglect, cannot justify termination solely through operation of the doctrine of anticipatory neglect.” Id. at 730-731.

2.Termination Under §19b(3)(c)(ii)

a.Evidence Supported Termination Under §19b(3)(c)(ii)

Clear and convincing evidence supported termination of respondent-mother’s parental rights under §19b(3)(c)(ii) because “it became evident that [respondent-]mother lacked the requisite parenting skills and emotional stability to care for the child, who had several medical conditions that required particular care.” In re Sanborn, 337 Mich App 252, 273 (2021). The respondent-mother “admitted that she was homeless and that her homelessness affected her ability to care for the child[.]” Id. at 274. The respondent-mother had been offered services by the DHHS and had been given a reasonable opportunity to rectify the conditions, i.e., improve her parenting skills and emotional stability, and had failed to do so. Id. Although the respondent-mother consistently participated in the services, she was unable to demonstrate sufficient benefits as a result of her participation. Id. The trial court did not err when it concluded that the respondent-mother was unlikely to rectify the issues within a reasonable time given the child’s age. Id. at 274-275.

Termination under §19b(3)(c)(ii) was appropriate because clear and convincing evidence showed that the minor children would suffer emotional harm if returned to respondents, and according to uncontroverted expert testimony, that any child in respondents’ care would suffer “‘a very high, long-term chronic risk for neglect[.]’” In re Pederson, 331 Mich App 445, 457-458, 474 (2020) (alteration in original). In addition, evidence established that respondents’ prognoses were poor even with treatment, they were unable to work, they had tens of thousands of dollars in outstanding debts, they were frequently incarcerated and fined for a variety of petty crimes, and they were repeatedly unable to accept responsibility for their actions. Id. at 474. All of these issues were “conditions ‘other’ than those that led to adjudication because respondents made no admissions concerning those conditions in their jurisdictional plea.” Id. at 475. While respondents were given an opportunity to rectify these conditions, they failed to do so. Id. This fact combined with the children’s ages and the expert’s testimony that “it would take respondents years to address their psychological issues under optimal circumstances,” supported a conclusion “that there was no reasonable likelihood that respondents would be able to rectify these conditions within a reasonable time[.]” Id. at 473, 474.

Termination under §19b(3)(c)(ii) was supported by clear and convincing evidence where the respondent-mother “had been given notice, repeatedly, of the programs she would have to participate in and the changes that she would have to make in order to have her children returned[,]” but the respondent-mother instead after her first five children were removed and a sixth child was born, neglected the sixth child by “fail[ing] to keep a medical appointment, utiliz[ing] the services of a home-care nurse, and properly medicat[ing] the [sixth] child or us[ing] the required apnea monitor[ when] [s]he hid the sickly child under a blanket for fifteen minutes without the apnea monitor attached[, and] [m]ost significantly, after the removal of her [sixth child], she admitted not making any contact with her children, the [DHHS], or the court [for approximately four months], and stated that she ‘turned to alcohol’ during this period.”¹¹ In re Sours, 459 Mich 624, 637-640 (1999).

b.Evidence Did Not Support Termination Under §19b(3)(c)(ii)

Termination was not supported by clear and convincing evidence where there was insufficient evidence to establish as the “other condition” under §19b(3)(c)(ii) a lack of bonding or attachment between the respondent-mother and the child following the child’s placement in foster care. In re JK, 468 Mich 202, 211-212 (2003). The trial court erroneously relied on a single therapist’s minimal observation of the respondent-mother’s and the child’s interaction over a “fully knowledgeable staff of persons^[12] who had worked directly with the respondent[-mother] over an extended period[.]” In re JK, supra at 211-212. In addition, the respondent-mother was not given “‘a reasonable opportunity’ to rectify the alleged bonding and attachment issue” where “the trial court ignored the fact that, immediately after the [DHHS] filed the petition for termination of parental rights, visitation was automatically suspended for several months pursuant to MCL 712A.19b(4)[, and t]he [respondent-mother’s] counselor was then notified only two months before trial to address the bonding and attachment issue with the respondent[-mother].” In re JK, supra at 212-213.

D.Termination on Grounds of Substantial Failure to Comply With Limited Guardianship Placement Plan–§19b(3)(d)

Under MCL 712A.19b(3)(d), the court may terminate a parent’s parental rights if it finds by clear and convincing evidence that “[t]he child’s parent has placed the child in a limited guardianship under . . . MCL 700.5205, and has substantially failed, without good cause, to comply with a limited guardianship placement plan described in . . . MCL 700.5205, regarding the child to the extent that the noncompliance has resulted in a disruption of the parent-child relationship.”¹³

A respondent meets the “good cause” requirement when he or she can show “‘a legally sufficient or substantial reason’” for his or her noncompliance with the limited guardianship placement plan. In re Utrera, 281 Mich App 1, 10-11, 22 (2008). “Termination is therefore appropriate pursuant to MCL 712A.19b(3)(d) if a respondent fails to substantially comply with a limited guardianship plan without a ‘legally sufficient or substantial reason,’ and this noncompliance results in a disruption of the parent-child relationship.” In re Utrera, supra at 22. In In re Utrera, supra at 22-24, the respondent-mother asserted that her mental illness constituted good cause for her failure to comply with the limited guardianship placement plan. The Court of Appeals held that “[b]ecause respondent[-mother’s] asserted cause for noncompliance with the transition plan, i.e., her mental illness, is the very condition that impairs her ability to care for the child, it cannot constitute a legally sufficient or substantial reason[,]” and without a showing of good cause, clear and convincing evidence supported termination of the respondent-mother’s parental rights under §19b(3)(d) where the respondent-mother’s failure to comply with the limited guardianship plan resulted in an eight-month gap in visitation. In re Utrera, 281 Mich App at 22-24.

E.Termination on Grounds of Substantial Failure to Comply With Court-Structured Guardianship Placement Plan–§19b(3)(e)

Under MCL 712A.19b(3)(e), the court may terminate a parent’s parental rights if it finds by clear and convincing evidence that “[t]he child has a guardian under . . . MCL 700.1101 to [MCL] 700.8206, and the parent has substantially failed, without good cause, to comply with a court-structured plan described in . . . MCL 700.5207 and [MCL] 700.5209, regarding the child to the extent that the noncompliance has resulted in a disruption of the parent-child relationship.”¹⁴

F.Termination on Grounds of Parent’s Failure to Support, Visit, Contact, and Communicate With Child Who Has Guardian–§19b(3)(f)

Under MCL 712A.19b(3)(f), the court may terminate a parent’s parental rights if it finds by clear and convincing evidence that “[t]he child has a guardian under . . . MCL 700.1101 to [MCL] 700.8206, and both of the following have occurred:

(i) The parent, having the ability to support or assist in supporting the minor, has failed or neglected, without good cause, to provide regular and substantial support for the minor for a period of 2 years or more before the filing of the petition or, if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the petition.

(ii) The parent, having the ability to visit, contact, or communicate with the minor, has regularly and substantially failed or neglected, without good cause, to do so for a period of 2 years or more before the filing of the petition.”¹⁵

G.Termination on Grounds of Failure to Provide Proper Care or Custody–§19b(3)(g)

Under MCL 712A.19b(3)(g), the court may terminate a parent’s parental rights if it finds by clear and convincing evidence that “[t]he 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.” “‘A parent’s failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody.’” In re Kaczkowski, 325 Mich App 69, 77 (2018), quoting In re White, 303 Mich App 701, 710 (2014).

Termination of both parents’ parental rights under MCL 712A.19b(3)(g) “is permissible even in the absence of determinative evidence regarding the identity of the perpetrator when the evidence shows that respondents must have either caused the intentional injuries or failed to safeguard the children from injury.” In re Vandalen, 293 Mich App 120, 141 (2011) (trial court properly terminated both respondent-parents’ parental rights under §19b(3)(g) and §19b(3)(j) where the trial court concluded that one parent must have abused the children while the other parent failed to protect the children from the abuse when the respondent-parents’ two infant children “suffered unexplained, serious, non-accidental injuries consistent with intentional abuse while in respondent[-parents’] sole care and custody[]” and “the extent and seriousness of the injuries to both children were consistent with prolonged abuse and clearly demonstrated a pattern of abuse in respondent[-parents’] home indicating a substantial risk of future harm[]”).

It is harmless error for a trial court to terminate a respondent’s parental rights under §19b(3)(h)¹⁶ where those parental rights clearly could have been terminated under §19b(3)(g).¹⁷ In re Perry, 193 Mich App 648, 650-651 (1992) (despite the court’s potential misinterpretation of the first element of §19b(3)(h), the two remaining elements of §19b(3)(h) were sufficient to warrant termination under §19b(3)(g)¹⁸ and “[a]lthough the termination petition was brought solely under [§19b(3)(h)], respondent[-father] was given adequate notice of the proofs that he would have to present to overcome termination under [§19b(3)(g)][]”).

1.Evidence Supported Termination Under §19b(3)(g)

MCL 712A.19b(3)(g) was amended by 2018 PA 58, effective June 12, 2018, to include an additional step in the analysis. The cases decided pre-amendment have been left in this book to assist a reader with the first part of the analysis.The pre-amended cases are included under a separate heading following the post-amended cases.

a.Post-Amended §19b(3)(g) Cases

The respondent’s parental rights were properly terminated under §19b(3)(g) because the court found by clear and convincing evidence that the “respondent could not provide proper care and custody for the children and would not be able to because of a continued failure to adequately address her mental health needs and the court had not seen any improvement.” In re Smith-Taylor, 339 Mich App 189, 203 (2021), rev’d on other grounds ___ Mich ___ (2022). Evidence supporting the trial court’s conclusion included the respondent’s continued display of “unstable and erratic behavior throughout the proceedings.” Id. at 203. Evidence showed that “respondent was taken to [the hospital] after threatening the children’s father with a knife,” fled the hospital when she arrived there, was found by police a few days later on the freeway, incoherent, and with one child in the car, was hospitalized but failed to take her medications after her discharge and did not participate in after-care services, was arrested several times, was involved in altercations with members of her family, and “was aggressive with providers during her parenting visits.” Id. at 203, 204. In addition, the respondent and the children’s father had a history of domestic abuse and one of their children was severely injured while in the father’s care; nonetheless the “respondent made it clear to the court that she would separate from the father only until the completion of the proceedings and she would not divorce him.” Id. at 204. Finally, evidence showed that the respondent did not fully understand the extent of the injuries sustained by the child while in the father’s care, nor did she understand the long-term care the child would require as a result of the severe injuries. Id. at 205, 207.

b.Pre-Amended §19b(3)(g) Cases

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-mother’s “continued voluntary contact with [the minor child’s alleged biological father] despite being [court] ordered to refrain from contact and after being made aware [that he was prohibited from having contact with minors for a prior conviction in Oklahoma for child molestation], support[ed] a finding that she ha[d] not benefited from her service plan,” and “testimony [was given by respondent’s therapist and caseworker] that respondent ha[d] continued mental health issues, including anger management issues, and that she refuse[d] to consider psychotropic medications as an option for achieving emotional stability.” In re Kaczkowski, 325 Mich App 69, 77-78 (2018).

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-mother “failed to comply with many of the terms of her treatment plan and made only minimal progress on other terms.” Specifically, “the child had extensive medical needs and required constant care,” and the respondent-mother did not adequately participate in the child’s medical care where she “missed 30 of the child’s 62 scheduled doctor appointments, surgeries, or other procedures, . . . continued to be confrontational with medical personnel and their treatment recommendations, . . . claimed to have inadequate training regarding the minor child’s feeding tube,” and moved into an apartment that did not have handicap-accessible ramps to accommodate her handicap child and refused petitioner’s offer to help find suitable housing. Accordingly, “[g]iven the child’s fragile medical condition, there existed a reasonable likelihood that the child would have suffered serious physical harm if returned to respondent’s home.” In re Smith, 324 Mich App 28, 47-50 (2018).¹⁹

Termination of the respondent-father’s parental rights to his daughter under §19b(3)(g) was supported by clear and convincing evidence where “[t]he evidence . . . established that [the father] had . . . [committed] an act of [CSC] involving penetration[]” against her. In re Schadler, 315 Mich App 406, 409 (2016) (noting that “medical findings corroborated [the daughter’s] statements, and [the father’s] explanation of the circumstances was not consistent with the statements or the medical findings”).

Termination under §19b(3)(g) was supported by clear and convincing evidence where “[the] respondent[-mother] failed to comply with the terms of her agency agreement[,] . . . tested positive for cocaine, had called [her child] a liar with respect to the allegations of sexual abuse, . . . had been charged with retail fraud[,] . . . was found passed out in the home of the 83-year-old man she was living with after consuming alcohol and pills[,] . . . [and] there was evidence that [the] respondent[-mother] was not consistent in attending counseling and treatment sessions, was unemployed and only received a small amount of monthly income in the form of social security disability, and failed to adequately address her mental health issues.” In re Gonzales/Martinez, 310 Mich App 426, 332-333 (2015). Although “the time between the imposition of the parent-agency agreement and termination was only 13 weeks, [the] respondent[-mother’s] actions demonstrated that she was unable to alter her behavior and provide a stable home.” Id. at 433.

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-mother was living in a shelter at the time of the termination hearing and had a history of transient housing and rarely had hot water or heat. In re Brown/Kindle/Muhammad, 305 Mich App 623, 637 (2014). The respondent-mother also had an “extensive CPS history[,]” and three of six complaints were substantiated, including complaints for physical neglect and poor living conditions, a complaint due to one of her children testing positive for marijuana at birth, and one for unspecified physical neglect. Id. Further, the respondent-mother admitted that she smoked marijuana daily. Id. Accordingly, the Court concluded that “[c]onsidering [the] respondent’s history of inadequate housing and reliance on other people to raise the minor children, the trial court did not clearly err when it found that respondent was not in a position to provide the children with proper care or custody[.]” Id.

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-mother “had a history of inviting men with criminal backgrounds into her home[,] [she] continued to invite men into her home throughout the pendency of the case, demonstrating that she did not benefit from her service plan[,]” and her psychological evaluation indicated that she was “emotionally immature and likely to engage in relationships with exploitive men who would put her children at a risk of harm[,]” to which her oldest daughter “was particularly vulnerable to abuse and harm because of her autism.” In re White, 303 Mich App 701, 712 (2014).

Termination under §19b(3)(g) was supported by clear and convincing evidence where “[the] respondent[-mother] [] unsuccessfully participated in several domestic violence classes[,] [] refused to extricate herself from [the mutually abusive] relationship with [her current boyfriend,]” and had a “long history of engaging in domestic violence and [] repetitive selection of violent, abusive partners.” In re Dearmon/Harverson-Dearmon, 303 Mich App 684, 700 (2014).

Termination under §19b(3)(g) was supported by clear and convincing evidence where “[t]he court took jurisdiction of the children because [the] respondent-mother failed to provide a safe and suitable home for her children[; s]he left [her children for an extended period of time] with their maternal grandmother, whose parental rights had been previously terminated and whose home had no running water[;] . . . [she] had still failed to obtain suitable housing [by the termination hearing][;] . . . she was unable to provide legal documentation of her income, despite two requests made by the agency[; s]he [] failed to attend the majority of her court hearings, parenting classes, weekly therapy sessions, and parenting time visits[; s]he lived across the state from her children[;] . . . she had not had phone contact with her daughter [for over a year, though she had phone contact with her son every weekend; and] . . . [she] did not participate in weekly drug screens, and of the two drug screens she did participate in . . ., one tested positive for alcohol.” In re Laster, 303 Mich App 485, 493-494 (2013).

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-father “did not provide support for [his] children, he failed to make himself available for a [court-ordered] home assessment [of the suitability of his home on two occasions despite ample notification of the visits], he did not participate in other voluntary services, such as therapy and parenting classes, and he had not visited [his] children while this case was pending.” In re Laster, 303 Mich App at 494.

Termination under §19b(3)(g) was supported by clear and convincing evidence. In re Moss, 301 Mich App 76, 82 (2013). The respondent-mother’s “substance abuse affect[ed] her ability to provide proper care and custody for [her] children” when “she used drugs in the presence of [her] children[,] . . . took them with her to purchase drugs on at least one occasion[, and]” was “living at a homeless shelter with [her] children, and there was no evidence that she would be able to provide suitable housing for the children in the reasonably foreseeable future.” Id. at 81. Moreover, “there [was not] a reasonable expectation that [the] respondent[-mother] would be able to provide proper care and custody within a reasonable amount of time considering the children’s ages[,] [the respondent-mother] ha[d] a long history of mental illness that [she struggled] to manage[,]^[20] [such as] . . .repeated[] [] psychotic episodes, including auditory hallucinations in which she was told to harm her children.” Id.

Termination under §19b(3)(g) was supported by clear and convincing evidence where despite the respondent-mother’s efforts to treat her longstanding drug addictions, she continued to battle them, she was not able to complete a drug treatment program, she was unemployed and lacked housing, “she would require a lengthy period of assessment, counseling, and supervision before reunification with her child could be considered[, and] . . . the two years [the child] already had spent in foster care, her entire life, constituted too long a period to await the mere possibility of a radical change in respondent[-]mother’s life.”]” In re Williams, 286 Mich App 253, 272-273 (2009).

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-mother had not made progress toward finding adequate housing for the children and that she was not likely to do so in the foreseeable future; she continued to miss drug screens despite the court’s warnings, which had resulted in the suspension of her visitation with the children; and even if she had been afforded an extended period of time to rectify the conditions, as might be necessary with the older children, there was not a reasonable likelihood that she would have been able to do so within a reasonable time. In re LE, 278 Mich App 1, 27-28 (2008).

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-mother failed to find and maintain adequate housing for her three children and failed to progress in therapy. In re Trejo, 462 Mich 341, 360-363 (2000).

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-mother allowed known sex offenders to interact with her children, failed to take steps to ensure that sexual assaults would not occur, and had a history of failing to protect her children from physical abuse. In re Archer, 277 Mich App 71, 75-76 (2007).

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-mother “maintained suitable employment and separated from her abusive boyfriend” but only “minimally complied” with the provisions of a court-ordered “family plan” (guardianship plan), especially with respect to parenting time. In re BZ, 264 Mich App 286, 297-301 (2004).

Termination under §19b(3)(g) was supported by clear and convincing evidence where testimony established that the respondent-mother’s emotional and cognitive problems would make her an ineffective parent no matter how well she was assisted by a third party. In re IEM, 233 Mich App 438, 451-453 (1999), overruled on other grounds by In re Morris (Morris III), 491 Mich 81 (2012).²¹

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-mother attempted to murder her child to prevent visitation with the noncustodial parent, the respondent-mother was serving an 8-25 year sentence for this, and the evidence showed that the respondent-mother’s serious emotional problems would continue to exist in the future. In re Huisman, 230 Mich App 372, 384-385 (1998), overruled in part on other grounds by In re Trejo, 462 Mich 341 (2000).²²

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-father was incarcerated for most of his children’s lives, resumed criminal behavior and drug use while not incarcerated, and expert witnesses testified to his poor parenting skills, his lack of cooperation in court-ordered counseling to improve those skills, and his inability to improve those skills within a reasonable time. In re Hamlet (After Remand), 225 Mich App 505, 516-517 (1997), overruled in part on other grounds by In re Trejo, 462 Mich 341 (2000).²³

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-mother was diagnosed as a paranoid schizophrenic, repeatedly left the children alone in the home, “would probably have more difficulty as the children grew older[,] and . . . could not cope with five young children, three of whom had health or behavioral problems requiring special attention.” In re Jackson (Shereathea Rebecca), 199 Mich App 22, 26-28 (1993).

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-father had not maintained contact with his child since he and the child’s mother divorced, he had a drinking problem and an extensive criminal record, and where he was released from prison but reoffended within two weeks and would be incarcerated for at least another year. In re Systma, 197 Mich App 453, 457 (1992).

Termination under §19b(3)(g) was supported by clear and convincing evidence where the respondent-mother’s apartment was littered with trash and feces, she was repeatedly evicted from other apartments, and she left the children unattended for extended periods and neglected their physical needs, and she failed to successfully complete parenting classes. In re King, 186 Mich App 458, 463-464 (1990).

Termination under §19b(3)(g) of the respondent-father’s parental rights to his youngest child was supported by clear and convincing evidence where the respondent-father admittedly failed to “notice something amiss with, or otherwise attend to, his youngest child as she went several hours without taking nourishment or fluid[,]” which resulted in a life-threatening condition due to dehydration, the respondent-father had persistent substance-abuse problems, and the respondent-father failed to “participate in, or benefit from, services relat[ed] to caring for a child with cerebral palsy, or to attend most of that child’s medical appointments[,]” all of which heightened concerns that the medical neglect could recur. In re LaFrance, 306 Mich App 713, 728-729 (2014).

Termination under §19b(3)(g) of the respondent-mother’s parental rights to her youngest child was supported by clear and convincing evidence where she tested positive for methadone and THC during her pregnancy with that child, admitted using opiates for years, demonstrated questionable behavior while in the hospital for the delivery that caused medical staff to question her ability to care for a newborn, and “even after the infant’s cerebral palsy diagnosis, [the] respondent-mother failed to attend virtually all of the dozens of medical appointments for the baby, failed to attend programs intended to educate her about that condition, and refused to sign paperwork to facilitate the child[] receiving physical therapy.” In re LaFrance, 306 Mich App at 729. “[T]he failure to participate in services directly linked to the ability to care for a special needs, or medically fragile, child bears directly on issues of neglect.” Id. at 729-730.

2.Evidence Did Not Support Termination Under §19b(3)(g)

MCL 712A.19b(3)(g) was amended by 2018 PA 58, effective June 12, 2018, to include an additional step in the analysis. The cases decided pre-amendment have been left in this book to assist a reader with the first part of the analysis. The cases that follow are separated by bold post-amendment and pre-amendment headings.

a.Post-Amended §19b(3)(g) Cases

Termination of the respondent-mother’s parental rights under §19b(3)(g) was not supported by clear and convincing evidence where “there was no evidence that mother’s use of medical marijuana was having any negative effect on her ability to parent or causing any risk of harm to [the child].^[24] In fact, the evidence was overwhelming that there were no significant concerns about mother’s parenting-time visits and that mother appropriately cared for [the child] during visits. There was no evidence that mother was impaired or ‘high’ during her parenting-time visits, and mother indicated that she understood the importance of not being in an impaired state while caring for [the child]. Further, mother testified that using medical marijuana reduced the frequency of her seizures and that her parenting ability would be negatively affected if she were subject to the likelihood of having seizures more frequently. Mother testified that she was not using any illicit drugs.” In re Richardson, 329 Mich App 232, 252 (2019). “The concerns expressed in the proceedings . . . were based more on the referee’s speculation that mother’s use of medical marijuana might lead to creating a harmful environment for [the child] even though the overwhelming evidence related to mother’s current medical marijuana use and parenting skills indicated just the opposite. . . . There must be facts within the record demonstrating that the parent’s acts are actually harming or presenting an articulable risk of harm to the child, and the trial court cannot simply presume a risk of harm from its own prior experiences or personal disapproval of a parent’s choices. . . . Rather, in this case, the record reveal[ed] that the referee essentially placed the burden on mother to demonstrate her fitness as a parent and her ability to provide proper care and custody, which is an unconstitutional means of deciding whether to terminate parental rights.” Richardson, 329 Mich App at 254-255.

There was not clear and convincing evidence under §19b(3)(g) “that the father was harming or presenting an articulable risk of harm to [the child], either based on is own actions or based on his plan of relying on [the child’s] mother to care for the child in their joint home while he worked.” Richardson, 329 Mich App at 257. The father’s parental rights were “terminated essentially because of mother’s medical marijuana use[, but] . . . there was no evidence to suggest that [the child’s] mother presented a current risk of harm to the child despite her use of medical marijuana.” Id. at 256. In addition, “the referee appeared to fault father for the nature of his work schedule and how it interfered with his ability to participate in various services[, but] . . . [f]ather testified that he was concerned about keeping his job, which ‘looked very good for [his] parole officer’ and would allow him to remain out of prison, . . . [that] he would be laid off for a period of time in the winter, during which time he could participate in more services[, and] . . . there was evidence that father had shown improvement in his parenting skills during his parenting-time visits . . . since his release [from incarceration].” Id. at 256. The referee also supported his decision by referencing to drug tests for father that were positive for marijuana and cocaine[, b]ut father denied using these drugs, testified about the loose adherence to procedures at the drug-testing facility, and he testified that he had [] to complete drug screens as part of his parole and did not have any parole violations.” Id. at 256-257.

b.Pre-Amended §19b(3)(g) Cases

Termination of the respondent-father’s parental rights under §19b(3)(g) was not supported by clear and convincing evidence because his “incarceration alone [was] not a sufficient reason for termination of parental rights[]” where he provided proper care and custody through the child’s placement with the child’s grandmother (she having acted as the child’s caregiver since birth) during his incarceration (the “petitioner[-DHHS] improperly determined that the grandmother’s criminal history barred her outright from [becoming a licensed foster care provider]”);²⁵ and the respondent-father although “unable to make significant progress on his case service plan while incarcerated[,]” demonstrated that he “did participate in services meaningfully while he was not incarcerated.” In re Pops, 315 Mich App, 590, 598, 599 (2016) (emphasis added).

Termination under §19b(3)(g) was not supported by clear and convincing evidence where “several witnesses testified that [the child] was generally well-supervised, that he was clean, and that he had never before left the house unsupervised[;]” the Child Protective Services (CPS) worker testified that the isolated incident that led to “the filing of the petition, i.e., that [the child] had been found unsupervised with a heavily soiled diaper and accompanied by two pit bull puppies[,] . . . on its own, would have likely resulted in nothing more than an offering of services had it not been for [the respondent-mother’s] earlier termination[ case]s[;]” there was no evidence “that the presence of multiple dogs in the [respondent-mother’s] home represented either a danger to [the child] or neglect on the part of [the] respondent[-mother;] and “[a]lthough the trial court may have possessed a level of skepticism based on [the] respondent’s decision in earlier termination cases to maintain a relationship with [the father of some of her children] after he showed himself to be abusive,” “no evidence or testimony was presented at the termination hearing indicating that [the] respondent was currently in any sort of relationship with [him,]” and “[the] respondent not only denied any relationship with [him], but she also testified as to her awareness that a relationship with [him] would put her children at risk.” In re Gach, 315 Mich App 83, 95, 96, 97 (2016).

Termination under §19b(3)(g) was not supported by clear and convincing evidence where “clear factual errors and errors of law . . . essentially resulted in the termination of respondent[-father’s] parental rights solely because of his incarceration.” In re Mason, 486 Mich 142, 160, 164-165 (2010) (as related to §19b[3][g], the trial court failed to evaluate “whether [the] respondent[-father] could care for his children in the future, either personally or with the help of relatives”).

Termination under §19b(3)(g) was not supported by clear and convincing evidence where the DHHS failed to inform the respondent-father of the proceedings and its impact on his parental rights, and he was not evaluated to determine whether he was capable of providing proper care and custody of the child. In re Rood, 483 Mich 73, 111-114 (2009). Although the DHHS was able to show that the respondent-father was neglectful in failing to visit or provide support to his child during the proceedings, “a showing of neglect, alone, merely triggers a parent’s right to participate in services. It does not automatically justify termination.” Id. at 114. Specifically, the Michigan Supreme Court found:

“As expressed in MCL 712A.19b(3)(g), when a parent fails ‘to provide proper care or custody for the child,’ termination is not appropriate unless ‘there is [also] no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.’ Because [the] respondent[-father] was neither informed about nor properly offered the evaluation and services available to aid the court in making the latter determination, his rights could not be terminated merely because of his failure to provide care and custody.” In re Rood, 483 Mich at 114.

Termination under §19b(3)(g) was not supported by clear and convincing evidence where “the [DHHS], itself, intentionally set out to create [the] very ground for termination[]” by reporting the respondents’ illegal presence in the country, after which the respondents were involuntarily deported and forced to leave their children behind. In re B & J, 279 Mich App 12, 19-20 (2008).

Termination under §19b(3)(g) was not supported by clear and convincing evidence where the respondent-mother fulfilled every requirement of the parent-agency agreement.²⁶ In re JK, 468 Mich 202, 213-214 (2003).

Termination under §19b(3)(g) was not supported by clear and convincing evidence where the respondent-mother, who had a diagnosed personality disorder, demonstrated “proper motivation” by making significant strides toward meeting the goals the court established, the respondent-mother’s psychologist testified that the respondent-mother, with proper motivation, could make progress in dealing with her personality disorder and begin addressing her parenting problems within four to six months, and “[t]he trial court’s conclusion that there [was] a ‘reasonable likelihood’ that the child would be harmed if reunited with respondent[-mother] . . . [was] ‘essentially conjecture. . . .’”²⁷ In re Boursaw, 239 Mich App 161, 169-172, 177 (1999), overruled in part on other grounds by In re Trejo, 462 Mich 341 (2000).²⁸

Termination under §19b(3)(g) of the respondent-parents’ parental rights to their three older children was not supported by clear and convincing evidence where, although the respondent-parents failed to “gain control over their substance-abuse habits[,]” there was no evidence “that either respondent[-parent] had ever abused or neglected any of their three older children.” In re LaFrance, 306 Mich App 713, 730 (2014). Although the court did not clearly err by terminating the respondent-parents’ respective parental rights to the older children’s younger sibling, the doctrine of anticipatory neglect did not apply in relation to whether their parental rights to the older children should also be terminated because the older children did not require special medical care like the younger sibling, the respondent-parents cared for the older children from birth without incident, the only allegation of neglect and abuse related to the youngest child, and “drug use alone, in the absence of any connection to abuse or neglect, cannot justify termination solely through operation of the doctrine of anticipatory neglect.” Id. at 730-731.

H.Termination on Grounds of Imprisonment of Parent–§19b(3)(h)

Under MCL 712A.19b(3)(h), the court may terminate a parent’s parental rights if it finds by clear and convincing evidence that “[t]he parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child’s proper care and custody, 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.”

“The mere present inability to personally care for one’s children as a result of incarceration does not constitute grounds for termination.” In re Mason, 486 Mich 142, 160 (2010).²⁹ MCL 712A.19b(3)(h) requires that all three conditions be met:

“[t]he combination of the first two criteria—that a parent’s imprisonment deprives a child of a normal home for more than two years and the parent has not provided for proper care and custody—permits a parent to provide for a child’s care and custody although the parent is in prison; he [or she] need not personally care for the child. The third necessary condition is forward-looking; it asks whether a parent ‘will be able to’ provide proper care and custody within a reasonable time. Thus, a parent’s past failure to provide care because of his [or her] incarceration also is not decisive.” In re Mason, 486 Mich at161.

It is harmless error for a trial court to terminate a respondent’s parental rights under §19b(3)(h)³⁰ where those parental rights clearly could have been terminated under §19b(3)(g).³¹ In re Perry, 193 Mich App 648, 650-651 (1992) (despite the court’s potential misinterpretation of the first element of §19b[3][h], the two remaining elements of §19b(3)(h) were sufficient to warrant termination under §19b(3)(g)³² and “[a]lthough the termination petition was brought solely under [§19b(3)(h)], respondent[-father] was given adequate notice of the proofs that he would have to present to overcome termination under [§19b(3)(g)]”).

1.Evidence Supported Termination Under §19b(3)(h)

Termination under §19b(3)(h) was supported by clear and convincing evidence where the respondent-mother was going to be imprisoned for nine years, and she would be unable to provide her children with proper care and custody when she “subject[ed] the children to emotional damage, breach[ed] their trust and confidence in her, plac[ed] them in a situation where they no longer reside together as a family unit and depriv[ed] them of her daily presence.” In re Hudson, 294 Mich App 261, 267 (2011).

2.Evidence Did Not Support Termination Under §19b(3)(h)

Termination under §19b(3)(h) was not supported by clear and convincing evidence where the child was “placed in the care of respondent’s brother, who . . . was providing exceptional care and custody for the child in respondent’s absence,” the record evidence did not support the conclusion that respondent would not be able to provide proper care and custody within a reasonable time where the caseworker’s opinion “was ‘based on the normal life span of a CPS case’” and not based on “evidence specific to respondent’s circumstances,” and the evidence specific to respondent showed that she completed a parenting class, was pursuing her GED and a career in cosmetology, had family support, and intended to reside with her parents until she could support herself. In re Baham, 331 Mich App 737, 754 n 9, 755, 756 (2020) (opinion  by Kelly, J.) (noting that placement with a relative is still evidence of a parent providing proper care and custody even if the placement occurs after jurisdiction is exercised and is accomplished with the aid of the DHHS and the court).

Termination under §19b(3)(h) was not supported by clear and convincing evidence where the trial court failed to consider (1) that termination was sought at a time when the respondent-father anticipated being paroled in less than two years, (2) that the DHHS never evaluated the respondent-father’s parenting skills or facilitated access to services, and (3) “whether [the] respondent[-father] could provide proper care and custody in the future by voluntarily granting legal custody to his relatives during his remaining term of incarceration.” In re Mason, 486 Mich at 160-163.

I.Termination on Grounds of Prior Termination of Parental Rights to Siblings–§19b(3)(i)

Under MCL 712A.19b(3)(i), the court may terminate a parent’s parental rights if it finds by clear and convincing evidence that “[p]arental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights.”

J.Termination on Grounds of Reasonable Likelihood of Harm to Child–§19b(3)(j)

Under MCL 712A.19b(3)(j), the court may terminate a parent’s parental rights if it 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 the child is returned to the home of the parent.” “‘[A] parent’s failure to comply with the terms and conditions of his or her service plan is evidence that the child will be harmed if returned to the parent’s home.’” In re Kaczkowski, 325 Mich App 69, 77 (2018), quoting In re White, 303 Mich App 701, 710 (2014).

For purposes of terminating parental rights under §19b(3)(j), it is proper for a court to evaluate the potential for emotional harm to the child(ren). In re Hudson (Sword-Pope), 294 Mich App 261, 268 (2011) (trial court properly terminated respondent-mother’s parental rights under §19b(3)(j) where her “behavior [would] have life-long and profound effects on her children as they come to grips with the fact that she was guilty of first-degree criminal sexual conduct with her own 14-year-old biological child”).

Termination of both parents’ parental rights under §19b(3)(j) “is permissible even in the absence of determinative evidence regarding the identity of the perpetrator when the evidence shows that respondent-parents must have either caused the intentional injuries or failed to safeguard the children from injury.” In re Vandalen, 293 Mich App 120, 139, 141 (2011) (trial court properly terminated both respondent-parents’ parental rights under §19b(3)(g) and §19b(3)(j) where the trial court concluded that one parent must have abused the children while the other parent failed to protect the children from the abuse when the respondent-parents’ two infant children “suffered unexplained, serious, nonaccidental injuries consistent with intentional abuse while in respondent[-parents’] sole care and custody[]” and “the extent and seriousness of the injuries to both children were consistent with prolonged abuse and clearly demonstrated a pattern of abuse in respondent[-parents’] home indicating a substantial risk of future harm[]”).

“[A] criminal history alone does not justify termination [under §19b(3)(j).” In re Mason, 486 Mich 142, 165 (2010) (concluding that termination of a respondent-father’s parental rights was not supported by clear and convincing evidence because there was “no evidence show[ing] that the children would be harmed if they lived with [the] respondent[-father] upon his release[]”). “[I]t is proper to scrutinize the likelihood of harm [under §19b(3)(j)] if the child were returned to the parent’s home after the parent’s release from prison.” In re Pops, 315 Mich App 590, 600 (2016), citing In re Mason, 486 Mich at 165. The Mason Court noted:

“[J]ust as incarceration alone does not constitute grounds for termination, a criminal history alone does not justify termination. Rather, termination solely because of a parent's past violence or crime is justified only under certain enumerated circumstances, including when the parent created an unreasonable risk of serious abuse or death of a child, if the parent was convicted of felony assault resulting in the injury of one of his own children, or if the parent committed murder, attempted murder, or voluntary manslaughter of one of his own children.” In re Mason, 486 Mich at 165.

1.Evidence Supported Termination Under §19b(3)(j)

The respondent-father’s parental rights were properly terminated under §19b(3)(j) because sufficient evidence supported a conclusion that there was “a reasonable likelihood that the child would be harmed if returned to [the respondent-]father’s care.” In re Sanborn, 337 Mich App 252, 280 (2021); MCL 712A.19b(3)(j). The respondent-father’s “own testimony established that he was unable to recall anything that he had learned from the parenting classes and that he needed further assistance with respect to the child’s medical needs.” In re Sanborn, 337 Mich App at 279-280. Further, the respondent-father could not remember anything he learned throughout the case to help him care for the child. Id. at 280.

Termination under §19b(3)(j) was appropriate because clear and convincing evidence showed that the minor children would suffer emotional harm if returned to respondents, and according to uncontroverted expert testimony, that any child in respondents’ care would suffer “‘a very high, long-term chronic risk for neglect[.]’” In re Pederson, 331 Mich App 445, 457-458, 474 (2020) (alteration in original). In addition, evidence established that respondents’ prognoses were poor even with treatment, they were unable to work, they had tens of thousands of dollars in outstanding debts, they were frequently incarcerated and fined for a variety of petty crimes, and they were repeatedly unable to accept responsibility for their actions. Id. at 474.

Termination under §19b(3)(j) was supported by clear and convincing evidence where the respondent-mother’s “continued voluntary contact with [the minor child’s alleged biological father] despite being [court] ordered to refrain from contact and after being made aware [that he was prohibited from having contact with minors for a prior conviction in Oklahoma for child molestation], support[ed] a finding that she ha[d] not benefited from her service plan . . . [and] fail[ed] to take adequate precautions to keep the child safe from [the biological father]” and “testimony [was given by respondent’s therapist and caseworker] that respondent ha[d] continued mental health issues, including anger management issues, and that she refuse[d] to consider psychotropic medications as an option for achieving emotional stability.” In re Kaczkowski, 325 Mich App 69, 77-78 (2018).

Termination under §19b(3)(j) was supported by clear and convincing evidence where the respondent-mother “failed to comply with many of the terms of her treatment plan and made only minimal progress on other terms.” Specifically, “the child had extensive medical needs and required constant care,” and the respondent-mother did not adequately participate in the child’s medical care where she “missed 30 of the child’s 62 scheduled doctor appointments, surgeries, or other procedures, . . . continued to be confrontational with medical personnel and their treatment recommendations, . . . claimed to have inadequate training regarding the minor child’s feeding tube,” and moved into an apartment that did not have handicap-accessible ramps to accommodate her handicap child and refused petitioner’s offer to help find suitable housing. Accordingly, “[g]iven the child’s fragile medical condition, there existed a reasonable likelihood that the child would have suffered serious physical harm if returned to respondent’s home.” In re Smith, 324 Mich App 28, 47-50 (2018).³³

Termination under §19b(3)(j) was supported by clear and convincing evidence where “[the] respondent[-mother] had difficulty controlling her emotional stability and aggression, . . . evidence from two [police] officers suggested that [the] respondent[-mother] had committed a violent assault on an older woman[,] . . . [the] respondent[-mother] slapped [her child] when the child told [her about being] sexua[ly]l abuse[d,] . . . the children’s current caretakers, their aunt and uncle, [did] not feel that [the] respondent[-mother] [was] safe[, and t]here was also testimony that [the respondent-mother’s son] specifically thinks that [the] respondent[-mother would] kill him if he [was] returned to her.” In re Gonzales/Martinez, 310 Mich App 426, 433-434 (2015).

Termination under §19b(3)(j) was supported by clear and convincing evidence where the respondent-mother continued to allow her children to stay at the home of an adult acquaintance known as “Uncle Lenny” after her children reported that he was sexually abusing them. In re Brown/Kindle/Muhammad, 305 Mich App 623, 636-637 (2014). The respondent-mother confronted “Uncle Lenny,” who was a friend of a friend and whose full name and address she did not know, about the abuse. Id. at 636. However, “Uncle Lenny” denied abusing the children, and the respondent-mother continued to allow the children to stay with him despite disclosures about the abuse from all three of her children. Id. The Court noted that on the basis of this conduct, it was clear “that the children would have been at risk of harm in [the respondent-mother’s] care[.]” Id.

Termination under §19b(3)(j) was supported by clear and convincing evidence where the respondent-mother “had a history of inviting men with criminal backgrounds into her home[, she] continued to invite men into her home throughout the pendency of the case, demonstrating that she did not benefit from her service plan,” and her psychological evaluation indicated that she was “emotionally immature and likely to engage in relationships with exploitive men who would put her children at a risk of harm,” to which her oldest daughter “was particularly vulnerable to abuse and harm because of her autism.” In re White, 303 Mich App 701, 712 (2014).

Termination under §19b(3)(j) was supported by clear and convincing evidence where “[the] respondent[-mother] [] unsuccessfully participated in several domestic violence classes[,] [] refused to extricate herself from [the mutually abusive] relationship with [her current boyfriend,]” and had a “long history of engaging in domestic violence and [] repetitive selection of violent, abusive partners[.]” In re Dearmon/Harverson-Dearmon, 303 Mich App 684, 700 (2014).

Termination under §19b(3)(j) was supported by clear and convincing evidence where “[the r]espondent-mother left [her] children [for an extended period of time] in the care of their maternal grandmother who previously had her parental rights terminated and whose home did not have running water[; d]uring the approximately two years that [her] children were in the court’s temporary custody, she failed to maintain employment and obtain suitable housing, often living with others, and most recently, in a shelter[; and s]he [] neglected to contact the police after her daughter informed her that she had suffered sexual abuse.” In re Laster, 303 Mich App 485, 494 (2013).

Termination under §19b(3)(j) was supported by clear and convincing evidence where the respondent-mother had “a long history of substance abuse and mental illness, and her [previous attempts at] treatment ha[d] been unsuccessful for both[;]” “it was undisputed that [the] respondent[-mother] had thoughts of harming her youngest daughter and that she acted on those thoughts by attempting to suffocate her[;]” “[the] respondent[-mother’s] oldest daughter had previously been removed and placed in foster care [following] [the] respondent[-mother’s] [] thoughts of harming her[,]” and after falsifying drug tests to regain custody of the oldest daughter, “[the] respondent[-mother] continued to have thoughts of harming her daughter.” In re Moss, 301 Mich App 76, 82 (2013).

Termination under §19b(3)(j) was supported by clear and convincing evidence where the respondent-mother “had been struggling with her anger-management problems for years[,]” “she was unable to control her anger” despite receiving treatment on and off over a span of four years, there were “several incidents of angry outbursts and at least one incident in which [the DHHS] personnel had to call the police to remove [the] respondent[-mother] from her anger-management class[, which resulted in her] . . . incarcerat[ion] for disturbing the peace[, and]  . . . the children had begun to internalize and model [the respondent-mother’s] aggressive behavior.” In re Olive/Metts, 297 Mich App 35, 40-41 (2012).

Termination under §19b(3)(j) was supported by clear and convincing evidence where the respondent-mother’s lengthy period of mental instability was relevant to her present ability to properly care for the child, she made poor decisions during the time the child lived with the guardian (e.g. living with two different abusive men after knowing each man for a very short period of time), and her own testimony evidenced her “lack of judgment, insight, and empathy for the child[.]” In re Utrera, 281 Mich App 1, 24-26 (2008).

Termination under §19b(3)(j) was supported by clear and convincing evidence where the respondent-mother allowed known sex offenders to interact with her children, failed to take steps to ensure that sexual assaults would not occur, and had a history of failing to protect her children from physical harm and abuse. In re Archer, 277 Mich App 71, 75-76 (2007).

Termination under §19b(3)(j) of the respondent-father’s parental rights to his youngest child was supported by clear and convincing evidence where the respondent-father admittedly failed to “notice something amiss with, or otherwise attend to, his youngest child as she went several hours without taking nourishment or fluid[,]” which resulted in a life-threatening condition due to dehydration, the respondent-father had persistent substance-abuse problems, and the respondent-father failed to “participate in, or benefit from, services relating to caring for a child with cerebral palsy, or to attend most of that child’s medical appointments[,]” which created a reasonable likelihood of harm if returned to the respondent-father’s care. In re LaFrance, 306 Mich App 713, 728-729 (2014).

Termination under §19b(3)(j) of the respondent-mother’s parental rights to her youngest child was supported by clear and convincing evidence where she tested positive for methadone and THC during her pregnancy with that child, admitted using opiates for years, demonstrated questionable behavior while in the hospital for the delivery that caused medical staff to question her ability to care for a newborn, and “even after the infant’s cerebral palsy diagnosis, [she] failed to attend virtually all of the dozens of medical appointments for the baby, failed to attend programs intended to educate her about that condition, and refused to sign paperwork to facilitate the child[] receiving physical therapy.” In re LaFrance, 306 Mich App at 729. “[T]he failure to participate in services directly linked to the ability to care for a special needs, or medically fragile, child bears directly on issues of neglect.” Id. at 729-730.

2.Evidence Did Not Support Termination Under §19b(3)(j)

Termination under §19b(3)(j) was not supported by clear and convincing evidence where respondent was making “undisputed progress toward reunification”; specifically, “respondent was compliant with services and was seeking out additional services,” “was demonstrating appropriate parenting during the parenting time visits,” “was making plans for how to support herself and [the child] in the future,” had a supportive family, and her “behavior in prison was exemplary[.]” In re Baham, 331 Mich App 737, 758 (2020) (opinion by Kelly, J.).

Termination under §19b(3)(j) was not supported by clear and convincing evidence where the trial court terminated the respondent-father’s parental rights on the sole ground that the respondent-father “was incarcerated, and [the child] would ‘obviously’ be harmed if returned to [the] respondent[-father][;³⁴] . . . [the] petitioner[-DHHS] did not present any evidence that [the] respondent[-father] ever harmed his child or was likely to harm his child[;]” and although the respondent-father “undoubtedly created a risk of harm[]” by “fleeing from the police for 14 blocks while [the child] was in the vehicle[,]” this did “not create an ‘unreasonable risk of serious abuse or death’ that would justify termination[, and] . . . the trial court could not terminate parental rights based on [the] respondent[-father]’s criminal record alone because [the] respondent[-father] did not commit any of the enumerated crimes listed in MCL 712A.19a(2) or MCL 722.638(1) and [MCL 722.638(2)].” In re Pops, 315 Mich App 590, 600-601 (2016).

Termination under §19b(3)(j) was not supported by clear and convincing evidence where “several witnesses testified that [the child] was generally well-supervised, that he was clean, and that he had never before left the house unsupervised[;]” the Child Protective Services (CPS) worker testified that the isolated incident that led to “the filing of the petition, i.e., that [the child] had been found unsupervised in a park with a heavily soiled diaper and accompanied by two pit bull puppies[,] . . . on its own, would have likely resulted in nothing more than an offering of services had it not been for [the respondent-mother’s] earlier termination[ case]s[;]” there was no evidence “that the presence of multiple dogs in the [respondent-mother’s] home represented a danger to [the child] or neglect on the part of [the] respondent[-mother;] and “[a]lthough the trial court may have possessed a level of skepticism based on [the] respondent’s decision in earlier termination cases to maintain a relationship with [the father of some of her children] after he showed himself to be abusive,” “no evidence or testimony was presented at the termination hearing indicating that [the] respondent was currently in any sort of relationship with [him,]” and “[the] respondent not only denied any relationship with [him], but testified as to her awareness that a relationship with [him] would put her children at risk.” In re Gach, 315 Mich App 83, 95, 96, 97 (2016).

Termination under §19b(3)(j) was not supported by clear and convincing evidence where “[a]lthough [the] respondent-father was not involved in [his] children’s lives and did not provide support for them, that [was] not, by itself, sufficient evidence that the children would be harmed if placed in his home.” In re Laster, 303 Mich App 485, 495 (2013).

Termination under §19b(3)(j) was not supported by clear and convincing evidence where the respondent-father’s criminal record consisted of “short jail stints for comparatively minor offenses[, t]he record show[ed] that he supported his family before his imprisonment[,] no evaluation was ever conducted to gauge whether he was likely to offend again.” In re Mason, 486 Mich at 165. Thus, the DHHS failed to show any evidence that the children would be harmed if returned to the respondent-father upon his release from jail. In re Mason, 486 Mich at 165.

Termination under §19b(3)(j) was not supported by clear and convincing evidence where the respondent-mother, who had a diagnosed personality disorder, demonstrated “proper motivation” by making significant strides toward meeting the goals the court established, the respondent-mother’s psychologist testified that the respondent-mother, with proper motivation, could make progress in dealing with her personality disorder and begin addressing her parenting problems within four to six months, and “[t]he trial court’s conclusion that there [was] a ‘reasonable likelihood’ that the child would be harmed if reunited with respondent[-mother] . . . [was] ‘essentially conjecture. . . .’”³⁵ In re Boursaw, 239 Mich App 161, 169-172, 177 (1999), overruled in part on other grounds by In re Trejo, 462 Mich 341 (2000).³⁶

Termination under §19b(3)(j) of the respondent-parents’ parental rights to their three older children was not supported by clear and convincing evidence where, although the respondent-parents failed to “gain control over their respective substance-abuse habits[,]” there was no evidence “that either respondent[-parent] had ever abused or neglected any of their three older children.” In re LaFrance, 306 Mich App 713, 730 (2014). Although the court did not clearly err by terminating the respondent parents’ respective parental rights to the older children’s younger sibling, the doctrine of anticipatory neglect did not apply because the older children did not require special medical care like the younger sibling, the respondent-parents cared for the older children from birth without incident, the only allegation of neglect and abuse related to the youngest child, and “drug use alone, in the absence of any connection to abuse or neglect, cannot justify termination solely through operation of the doctrine of anticipatory neglect.” Id. at 731-732.

K.Termination on Grounds of Serious Abuse of Child or Sibling–§19b(3)(k)

Under MCL 712A.19b(3)(k), the court may terminate a parent’s parental rights if it finds by clear and convincing evidence that “[t]he parent abused the child or a sibling^[37] of the child and the abuse included 1 or more of the following, and there is a reasonable likelihood that the child will be harmed if returned to the care of the parent:

(i) Abandonment of a young child.

(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.

(iii) Battering, torture, or other severe physical abuse.

(iv) Loss or serious impairment of an organ or limb.

(v) Life threatening injury.

(vi) Murder or attempted murder.

(vii) Voluntary manslaughter.

(viii) Aiding and abetting, attempting to commit, conspiring to commit, or soliciting murder or voluntary manslaughter.

(ix) Sexual abuse as that term is defined in . . . MCL 722.622.”³⁸

Note: MCL 712A.19b(3)(k) was amended by 2018 PA 58, effective June 12, 2018, to include an additional step in the analysis. The cases decided pre-amendment have been left in this subsection to assist a reader with the first part of the analysis. Please note that any future post-amendment cases will be included under a separate bold heading.

“[A] parent need not be criminally charged with or convicted of criminal sexual conduct (CSC) for MCL 712A.19b(3)(k)(ii) to apply.” In re Schadler, 315 Mich App 406, 410 (2016).

Termination of a parent’s parental rights under §19b(3)(k) is permissible “even in the absence of definitive evidence regarding the identity of the perpetrator when the evidence does show that the respondent or respondents must have either caused or failed to prevent the child’s injuries.” In re Ellis, 294 Mich App 30, 35-36 (2011).

For purposes of terminating parental rights under §19(3)(k)(ii), “[i]t is [] appropriate for a trial court to evaluate a respondent’s potential risk to other siblings by analyzing how the respondent treated another one of his or her children, albeit a child the respondent gave up for adoption. Though no legal relationship exists in such a situation, the reality is that respondent is still the biological [parent] of the child who was given up for adoption and that child is the biological half-sibling of the respondent’s other children.” In re Hudson (Sword-Pope), 294 Mich App 261, 266 (2011).

Termination supported by clear and convincing evidence under pre-amended statutory language. Termination of the respondent-father’s parental rights to his daughter was supported by clear and convincing evidence where “[t]he evidence . . . established that [the father] had . . . [committed] an act of [CSC] involving penetration[]” against her. Schadler, 315 Mich App at 409 (noting that “medical findings corroborated [the daughter’s] statements, and [the father’s] explanation of the circumstances was not consistent with the statements or the medical findings[]”). “The trial court also did not clearly err in finding that” termination of the father’s parental rights to his son was supported by clear and convincing evidence under §19b(3)(k)(ii), “because [the son was], indisputably, a sibling of [the abused daughter].” Schadler, 315 Mich App at 409.

Termination of both parents’ parental rights under §19b(3)(k) was supported by clear and convincing evidence where the trial court concluded that one parent must have abused the child while the other parent failed to prevent the child abuse when the child suffered “numerous non-accidental injuries that likely occurred on more than one occasion,” and the child’s parents lived together and shared in the child care responsibilities as the child’s sole caregivers. Ellis, 294 Mich App at 35-36.

Termination was supported under §19b(3)(k)(ii) by clear and convincing evidence where the respondent-mother was convicted of first-degree criminal sexual conduct relating to sexual activity she had with her 14-year-old biological son whom she had given up for adoption at birth, but reconnected with through MySpace. Hudson (Sword-Pope), 294 Mich App at 266.

Termination under §19(3)(k)(ii) was supported by clear and convincing evidence where the respondent-father admitted that he sexually penetrated his stepdaughter, the minor children’s half-sister. In re Jenks, 281 Mich App 514, 518 (2008).

L.Termination on Grounds of Prior Voluntary Termination of Parental Rights to Another Child–§19b(3)(l)

Under MCL 712A.19b(3)(l), the court may terminate a parent’s parental rights if it finds by clear and convincing evidence that “[t]he parent’s rights to another child were voluntarily terminated following the initiation of proceedings under [MCL 712A.2(b)] or a similar law of another state and the proceeding involved abuse that included 1 or more of the following, and the parent has failed to rectify the conditions that led to the prior termination of parental rights:

(i) Abandonment of a young child.

(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.

(iii) Battering, torture, or other severe physical abuse.

(iv) Loss or serious impairment of an organ or limb.

(v) Life-threatening injury.

(vi) Murder or attempted murder.

(vii) Voluntary manslaughter.

(viii) Aiding and abetting, attempting to commit, conspiring to commit, or soliciting murder or voluntary manslaughter.

(ix) Sexual abuse as that term is defined in . . . MCL 722.622.”³⁹

M.Termination on Grounds of Conviction of a Serious Offense–§19b(3)(m)

Under MCL 712A.19b(3)(m), the court may terminate a parent’s parental rights if it finds by clear and convincing evidence that “[t]he parent is convicted of 1 or more of the following, and the court determines that termination is in the child’s best interests because continuing the parent-child relationship with the parent would be harmful to the child:

(i) A violation of . . . [female genital mutilation under] MCL 750.136, [transportation for purposes of female genital mutilation under MCL] 750.136a, [first-degree murder under MCL] 750.316, [second-degree murder under MCL] 750.317, [first-degree criminal sexual conduct under MCL] 750.520b, [second-degree criminal sexual conduct under MCL] 750.520c, [third-degree criminal sexual conduct under MCL] 750.520d, [fourth-degree criminal sexual conduct under MCL] 750.520e, [or assault with intent to commit criminal sexual conduct under MCL] 750.520g.

(ii) A violation of a criminal statute that includes as an element the use of force or the threat of force and that subjects the parent to sentencing [as a repeat offender] under . . . MCL 769.10, [MCL] 769.11, and [MCL] 769.12.

(iii) A federal law or law of another state with provisions substantially similar to a crime or procedure listed or described in subparagraph (i) or (ii).”