Opinion
No. 350245
09-10-2020
In re O'BRIEN/CUDNEY, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court Family Division
LC No. 19-869478-NA Before: RIORDAN, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ. SHAPIRO, J. (dissenting).
I would reverse the termination of respondent's parental rights and so respectfully dissent. I agree with my colleagues that the evidence presented at the statutory basis hearing did not support termination of respondent's parental rights under MCL 712A.19b(3)(g) and (i). I disagree with their view that the department made reasonable efforts to reunify this family and would reverse. I also disagree with the majority's conclusions that termination under MCL 712A.19b(3)(j) was justified by clear and convincing evidence and that termination was in the best interests of the children. Accordingly, I would reverse and remand for further proceedings.
I. REUNIFICATION EFFORTS
"Under Michigan's Probate Code, the Department has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights. In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2).
To satisfy that requirement, "the Department must create a service plan outlining the steps that both it and the parent will take to rectify the issues that led to court involvement and to achieve reunification. Id. at 85-86, citing MCL 712A.18f(3)(d) (stating that the service plan shall include a "[s]chedule of services to be provided to the parent . . . to facilitate the child's return to his or her home")."
When the children were removed on August 14, 2018, there was no evidence that respondent had ever harmed them either intentionally or as a matter of neglect. The children, ages 2 ½ years and 8 months at removal, had been in their mother's care since birth. Given that the department described both children as healthy, and developing normally and without any signs of injury or mistreatment, it is difficult to see any justification for the department's aggressive stance in these proceedings. Nevertheless, at the very first proceeding—a preliminary inquiry regarding removal—the department and the trial court withheld all reunification services despite the lack of statutory authorization for such an action. As a result, respondent was never offered services during the six months between removal and the long-overdue completion of the preliminary hearing. The only reunification effort made by the department was to allow respondent to have supervised visitation when it was ordered to do so by the court.
At the August 14, 2018 removal hearing, the L-GAL described the children as "healthy [and] doing fine." The case services worker who filed the petition stated at the hearing that the children had clothing, food and a place to sleep. The referee's report of that hearing stated that the children appeared to be "reasonably well fed and have not suffered injury."
Whether there was even an order allowing a denial of services is not even clear. The trial court's order of August 14, 2018 following the preliminary inquiry on that date stated: "The petition is not authorized pending resumption of the preliminary hearing."
Astonishingly, the department requested that respondent be denied visitation altogether.
MCL 712A.19a(2) makes clear that "reasonable efforts must be made in all cases" except those that fall within a narrow set of circumstances involving serious abuse. (Emphasis added). Those circumstances are set forth in MCL 712A.19a(2)(a), (b), (c) and (d). The requirements of subsections (b), (c) and (d) are plainly not met here. The circumstances set forth in those provisions are:
(b) The parent has been convicted of 1 or more of the following:None of these apply here. Moreover, these factors make clear that a lack of reunification efforts is permitted only in the most egregious of circumstances: murder, manslaughter, felonious assault, sexual offender status or a prior involuntary termination.
(i) Murder of another child of the parent.
(ii) Voluntary manslaughter of another child of the parent.
(iii) Aiding or abetting in the murder of another child of the parent or voluntary manslaughter of another child of the parent, the attempted murder of the child or another child of the parent, or the conspiracy or solicitation to commit the murder of the child or another child of the parent.
(iv) A felony assault that results in serious bodily injury to the child or another child of the parent.
(c) The parent has had rights to the child's siblings involuntarily terminated and the parent has failed to rectify the conditions that led to that termination of parental rights.
(d) The parent is required by court order to register under the sex offenders registration act. [MCL 712A.19a(2)(b)-(d).]
The remaining exception set forth in MCL 712.19a(2)(a) provides that an immediate termination petition is to be filed if the child "has been subjected to aggravated circumstances as provided in [MCL 722.638(1) or (2)]." The department relies solely on MCL 722.638(1)(b)(ii), which reads:
(b) The department determines that there is risk of harm, child abuse, or child neglect to the child and either of the following is true:
* * *
(ii) The parent's rights to another child were voluntarily terminated following the initiation of proceedings under section 2(b) of chapter XIIA of 1939 PA 288, MCL 712A.2, or a similar law of another state, the parent has failed to rectify the conditions that led to the prior termination of parental rights, and the proceeding involved abuse that included 1 or more of the following:
(A) Abandonment of a young child.
(B) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
(C) Battering, torture, or other severe physical abuse.
(D) Loss or serious impairment of an organ or limb.
(E) Life-threatening injury.
(F) Murder or attempted murder.
(G) Voluntary manslaughter.
(H) Aiding and abetting, attempting to commit, conspiring to commit, or soliciting murder or voluntary manslaughter. [Emphasis added.]
The record is unclear as to which aggravated circumstance the department and court were relying on. However, since plaintiff was never accused of any of the actions set forth in (b)(ii)(B)-(H), the claimed basis must have been subsection (b)(ii)(A), which refers to abandonment of a young child. The department points out that respondent voluntarily surrendered her parental rights to two children 15 years earlier when she was 21. According to the department, respondent pleaded to having abandoned her children by leaving them with her mother for some period of time. However, MCL 722.638(1)(b)(ii) does not state that any voluntary termination based on abandonment is grounds to deny services in a later case. Subsection (b)(ii) also requires that the basis for the prior voluntary termination must have risen to the level of "abuse." MCL 722.602 defines "child abuse" as "harm or threatened harm to a child's health or welfare . . . through nonaccidental physical or mental injury; [or] sexual abuse . . . ." There is no record evidence that the children were harmed or threatened with harm while in their grandmother's care. My colleagues in the majority agree with me on this point. Their opinion states that "[t]he record is utterly devoid of any evidence that we can find from which it could be found that respondent's parental right to any prior children were 'terminated due to serious and chronic neglect or physical or sexual abuse.' "
It appears that the record of those prior proceedings was never admitted into evidence or even produced for the court to review.
A review of cases in which a dispositional termination and denial of services were found to be proper reveals that they involved circumstances far beyond those present here. See e.g., In re Moss, 301 Mich App 76, 81-82; 836 NW2d 182 (2013) (mother had a history of refractory psychosis in which she heard voices telling her to harm her children and she attempted to suffocate her daughter); In re AMAC, 269 Mich App 533, 534; 711 NW2d 426 (2006) (mother previously voluntarily surrendered her right to two children after attempting to strangle them to death); In re Thompson, 318 Mich App 375, 376; 897 NW2d 758 (2016) (termination in initial petition based on the 2006 and 2013 deaths of the children's infant siblings due to unsafe sleeping conditions); In re Medina, 317 Mich App 219, 222; 894 NW2d 653 (2016) (termination at disposition where father was convicted of CSC-I against a 9-year-old); In re Powell/Hammond, unpublished per curiam opinion of the Court of Appeals, issued July 21, 2009 (Docket No. 289139), p 2 (mother subjected children to physical abuse and her niece to "severe physical abuse"); In re Bembry/Jackson, unpublished per curiam opinion of the Court of Appeals, issued November 16, 2010 (Docket Nos. 296360; 296361), pp 1-2 (children were locked in a small basement room for years, not permitted to attend school, rarely fed and beaten with sticks, boards, and extension cords, causing scars and marks); In re Wilkerson, unpublished per curiam opinion of the Court of Appeals, issued February 14, 2013 (Docket No. 312197), p 1(children found with multiple injuries and mother pleaded guilty to child abuse); In re Mundy, unpublished per curiam opinion of the Court of Appeals, issued December 19, 2006 (Docket No. 270892), p 1 (boyfriend of mother severely injured child and mother had known of his previously abuse of the child).
There is one other basis to accept a termination petition at the outset, although the department does not rely on it. MCL 722.638(3) authorizes the department to do so as a matter of discretion and sets forth the required procedure. If the department wishes to file a discretionary (as opposed to mandatory) request for termination and disposition, it must first "hold a conference among the appropriate agency personnel and agree upon the course of action." The statute further requires that "[t]he department shall notify the attorney representing the child of the time and place of the conferences and the attorney may attend." The record does not indicate that such a conference took place and if it did occur it is clear that notice to respondent's counsel was not provided since the ruling on the initial petition and denial of services occurred before plaintiff was even assigned counsel. Thus, MCL 722.638(3) cannot provide a basis for the department's action and the court's authorization to file for immediate termination.
In sum, any claim that an immediate termination petition was required or permitted by statute fails. The grounds simply are not present. Given that there was no basis to seek immediate termination, it was plain error for the trial court to deny services and other "reasonable efforts" toward reunification. Reasonable efforts at reunification "must be made in all cases except those involving aggravated circumstances under MCL 712A.19(a)(2)," which in turn refers to the factors in MCL 722.638(1) and (2), as just discussed. In re Rippy, ___ Mich App ___. ___ ; ___ NW2d ___ (2019) (Docket No. 347809), slip op at 2 (emphasis added), citing In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010).
The majority notes that the department made "reasonable efforts," but the efforts it refers to were efforts to avoid removal. Those cannot satisfy the requirement of reasonable efforts at reunification. Indeed, the only "reasonable efforts" noted by the majority are that "[p]rior to filing the petition, the CPS investigator provided respondent with a list of shelters and churches to call regarding housing . . . [and] discussed food resources with respondent." If that constitutes reasonable efforts to reunify then the bar has been set shockingly low. And as respondent points out, and the department does not dispute, many of her housing and food issues were due to the fact that she lacked identification papers for the children and needed therefore to obtain new copies of their birth certificates, a process which since 9/11 is far from simple. The majority notes that the department was assisting respondent in this process, but that they abandoned it because mother had tested positive for marijuana and cocaine in the week immediately following the initial report to the department that respondent and children were living in a motel. I fail to see how failing two drug tests at the very outset of the process justifies cessation of reasonable efforts, and the majority cites no such justification. Rather than assisting respondent with obtaining these critical documents and other services that may have led to reunification, the department and the trial court short-circuited the process by seeking termination at disposition in the initial petition and discontinuing any assistance it was providing to respondent within days of the removal. As the majority points out, "the investigator testified that after respondent testified positive for marijuana and cocaine . . . , petitioner filed a petition seeking termination of rights at the initial disposition," and so ended services before they had begun. Respondent never received any services during the entire pendency of this case other than being permitted to visit her children under supervision.
Respondent consistently showed a willingness and ability to seek and benefit from services. She moved to Oakland County in order to receive assistance from Common Ground, an agency that assists survivors of human trafficking. Common Ground provided respondent with financial aid, and respondent was also receiving some food assistance and Medicaid. The plan was for Common Ground to assist respondent in finding an apartment, but her lack of proper identification impeded this process. Indeed, many of respondent's issues were related to her lack of identification for herself and the children since without the proper identification, respondent was unable to seek employment, apply for housing assistance or renew her medical marijuana card. The agency's worker agreed that without proper identification, it would be very difficult to obtain housing or employment. But, after two positive drug tests, each performed within days of removal, the agency chose to cease all services and file a petition seeking termination at the initial disposition.
The investigation began on August 6, 2018 and the drug tests occurred on August 7 and August 10. Respondent conceded that she had smoked marijuana but denied knowingly using cocaine and suggested that the marijuana cigarette she smoked was laced with cocaine.
The department did prepare a parent-agency treatment plan, however, it did not provide for any services. The plan consisted solely of directives to the mother to accomplish various tasks such as "develop[ment] of a written budget plan, including rent, bills and expenses" and many others without any assistance from the department. The plan also stated that respondent would participate in a psychological evaluation at the referring agency, but none was scheduled until after the statutory basis hearing on March 18, 2019. Respondent did attend the evaluation.
The procedure followed in this case was also unusual in that the preliminary hearing was repeatedly adjourned and not completed for seven months due to concerns regarding possible tribal affiliation. It is clear therefore that the failure to provide services cannot be justified by the need to move quickly. Removal was on August 14, 2018, and the adjudication did not occur until March 18, 2019. There was more than sufficient time in which to provide services.
Lastly, it is worth noting that while the order issued as a result of the March 18, 2019 combined preliminary examination and adjudication trial found statutory grounds to exercise jurisdiction, it also provided that "reasonable efforts shall be made to preserve and reunify the family." Despite this order, no services were thereafter provided.
The orders issued in this case and the case service plan are quite inconsistent regarding whether or not services are to be provided. The initial petition reviewed on August 14, 2018, included a request that respondent's rights be terminated and the trial court signed the form statement at the end of the petition stating that the court conducted a preliminary inquiry and "the filing of this petition is authorized." However, the referee's report to the court makes no mention of the fact that the petition sought termination at disposition. The case service plan issued one month later on October 19, 2018, states that efforts are to be made to reunify and describes adoption as a concurrent plan, not the sole plan. The plan contains a section on reasonable efforts which asked the caseworker the following: "If services were not provided, were not required, or if providing services to the family was not reasonable explain why." The response failed to answer, stating only that respondent "has been offered parenting time twice a week for one hour." And the caseworker checked "N/A" as to whether a mandatory petition is required as well as in response to the questions whether the agency is or is not recommending termination. The document states that a termination petition has not been filed and that a "mandatory petition is [not] required." The next order was signed following the hearing on October 29, 2018, when the completion of the preliminary hearing was adjourned. Paragraph 18 of the form order allows the trial court to check one of two boxes to indicate that "reasonable efforts shall be made to preserve and reunify the family" or "reasonable efforts shall not be made to preserve and reunify the family." Neither box is checked. The order issued following the January 14, 2019 hearing did not check either box on paragraph 18. An order dated January 31, 2019, relating to the January 25th hearing, contained no direction as to whether reasonable efforts should be made and the court did not check the box that would have ordered reasonable efforts toward reunification. The March 4, 2019 order, following the February 20, 2019 hearing, directs that reasonable efforts shall be made. And as noted, the March 18, 2019 order of adjudication also directs that such services be provided and the order finding a statutory basis continues that order.
While respondent's lack of funds and a long-term plan to assure stability required intervention, the agency and the trial court decided far too quickly—at the initial removal hearing—and despite the lack of any evidence of abuse, that this mother did not deserve the opportunity to show that she could improve her circumstances and assure a stable home for the children. The department's unwillingness to continue to assist the respondent in obtaining the necessary identification papers and its request to deny all parenting time from the outset are particularly galling. Given respondent's willingness to participate in assistance and services and the lack of harm to the children, this was by no means a case in which it was proper to seek termination in the initial petition. Because respondent was entitled to reasonable efforts at reunification by the department and was not provided with any, I would reverse.
II. TERMINATION UNDER MCL 712A.19B(3)(J) & BEST INTERESTS
Even if the denial of services did not require reversal, the termination was improper. At no point in this case was it shown that the children could not be returned to their mother because they would be harmed as a result. There was no prior history of abuse and the allegations of neglect were largely overblown. Moreover, by the time that termination was ordered, respondent had taken significant action to address the reasons that the children were removed. She entered a drug program, moved in with her boyfriend and his mother and was employed as a caregiver for the mother. The home was found to be proper and safe. Her boyfriend was employed, had no criminal history and neither the boyfriend nor his mother was on the central registry. Nevertheless, respondent's efforts in obtaining this level of stability was considered inconsequential in the best interests hearing even though the initial problem was her lack of housing and income.
Respondent children were housed, clothed, fed and provided with care by their mother despite the fact that she was without funds and temporarily living in a motel. At the time of removal, the children were healthy and developing normally. There was no testimony that the children had been harmed psychologically. Further, after removal the parenting visits went well and respondent was appropriate with the children at all times. The caseworker who supervised the visitation described respondent's behavior this way:
The majority repeatedly notes that there was suspicion that respondent may have been engaging in prostitution at the motel, but no evidence was ever presented in that regard, and the trial court indicated it would not consider those allegations. The issue was inserted into the proceeding by the CPS investigator who testified she had been told this by someone who had heard it from the hotel manager, i.e., double hearsay. The investigator ultimately conceded that he had never spoken to the manager of the hotel or anyone else who could offer any direct evidence of such activity. According to respondent, the hotel had security cameras but CPS did not make any effort to view the recordings that would, if the hearsay accusation was true, show men coming in and out of her room. The majority's reliance on this unsupported and inadmissible allegation suggests that it is not fully convinced that respondent's other actions were sufficient to justify a denial of services and the termination at disposition. --------
[Mother] is very—very appropriate during the parenting time. She feeds the children. She gives them a bath or wipes them down after they're done eating if they're messy. She uses positive reinforcement to get [her son] to eat his food. Sometimes he doesn't want to eat his food. She's appropriate. [The children and respondent] definitely have a strong bond.She went on to testify that the respondent "brings food [and] clothes" as well as craft activities do with the children.
Finally, the primary circumstances justifying removal, that respondent was living in a motel and had no source of income, ceased to be true months before the preliminary hearing was even concluded. And the secondary circumstance, respondent's use of marijuana, was wholly inadequate to justify taking these children from their mother without even making reasonable efforts to assist respondent and reunify the family. The trial judge was right to be concerned about finality, but making reasonable efforts toward reunification—at least to a parent who has not harmed their children—is a necessary part of doing so.
For these reasons, I conclude that the trial court clearly erred by terminating respondent's parental rights under MCL 712A.19b(3)(j) and by finding that termination was in the children's best interests.
III. CONCLUSION
Without a lawful basis, the department refused to make reasonable efforts to reunify this family. And the trial court—to the degree its various orders can be reconciled—erred by authorizing the request for immediate termination in the initial petition. Putting that error aside, the court's decision to terminate was not supported by clear and convincing evidence. I would reverse and remand for further proceedings.
/s/ Douglas B. Shapiro