Opinion
No. 345903
03-19-2019
In re FORNELLI, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Gladwin Circuit Court Family Division
LC No. 16-000199-NA Before: SAWYER, P.J., and CAVANAGH and K. F. KELLY, JJ. PER CURIAM.
Respondent-father appeals by right an order terminating his parental rights to his two minor children under MCL 712A.19b(3)(c)(i), (c)(ii), (g), (h), and (j). We affirm.
The children were placed with the Department of Health and Human Services (DHHS) when their parents were both housed in the Gladwin County Jail. Respondent was unable to provide the names of any relatives with whom the children might be placed. At the time of adjudication, respondent had been released from jail, but at the dispositional hearing, respondent was again housed in jail after testing positive for methamphetamine. Respondent's parent-agency treatment plan provided that respondent would be referred for psychological and substance abuse evaluations, drug testing, inpatient drug rehabilitation, counseling, and parenting skills. When the treatment plan was reviewed at the disposition hearing, respondent's counsel stated that the plan seemed appropriate.
Respondent was released from jail in January 2017, and he entered a 30-day inpatient treatment program, from which he was discharged in February 2017. As part of his continuing treatment, he was supposed to attend substance abuse counseling and attend Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) daily. Respondent did not attend a follow-up appointment, and throughout March, April, and May 2017, he tested positive for amphetamines, methamphetamine, ephedrine, codeine, and THC. At the termination hearing, respondent admitted that he had attended NA meetings for four or five weeks, but stopped because he relapsed.
A foster care worker testified that respondent "kind of disappeared" at the end of April, had no contact during May, and then attended one visit in June 2017 before he was arrested for absconding from probation, and resisting and obstructing justice. Respondent was incarcerated in jail in June 2017, and he pleaded guilty to two felony charges in August 2017. In September 2017, respondent was sentenced to serve 24 to 48 month in prison. Respondent sent the children one letter in August 2018. Following a hearing in September 2018, the trial court ordered respondent's parental rights terminated.
On appeal, respondent argues that DHHS failed to engage in reasonable efforts to reunify him with the children because it only provided him with a list of services and told him to participate in services in prison. We disagree.
This Court reviews de novo questions of constitutional law, including whether the trial court's proceedings protected the parent's right to procedural due process. In re Sanders, 495 Mich 394, 403-404; 852 NW2d 524 (2014). This Court reviews for clear error a trial court's decision whether reasonable efforts were made to reunify a child with his or her parent. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010); In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005). A finding is clearly erroneous if, after reviewing the entire record, this Court is definitely and firmly convinced that the trial court made a mistake. In re Mason, 486 Mich at 152. Respondent did not preserve this issue by challenging the reasonableness of his service plan. See In re Terry, 240 Mich App 14, 26; 610 NW2d 563 (2000). This Court reviews unpreserved constitutional claims for plain error affecting the parent's substantial rights. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). An error is plain if it is clear or obvious, and it affects substantial rights if it affected the outcome of the lower court proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
DHHS "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). DHHS is obligated to make reasonable efforts to reunite even an incarcerated parent with his or her child. In re Mason, 486 Mich at 152. DHHS must offer an incarcerated parent the opportunity to participate in child protective proceedings. Id. at 155. However, "there exists a commensurate responsibility on the part of [parents] to participate in the services that are offered." In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012).
In this case, DHHS provided respondent with inpatient drug rehabilitation. The foster care worker testified that DHHS tried to provide respondent with substance abuse, housing, employment, mental health, and parenting services, but respondent did not follow through on them. According to the foster care worker, a counselor had been willing to work with respondent while he was housed in the Gladwin County Jail, but respondent did not complete the referral. Additionally, respondent was not incarcerated from January 2017 to June 2017, but he did not participate in services at that time. We are not definitely and firmly convinced that the trial court made a mistake when it found that DHHS engaged in reasonable efforts to reunify respondent and the children, but that respondent did not take advantage of services or participate in them, and that he neglected contact with his children even when he was not imprisoned.
After respondent's June 2017 arrest, DHHS attempted to get the prosecutor to agree to a personal recognizance bond for inpatient treatment, but the prosecutor would not stipulate to do so. The foster care worker testified that she visited respondent once a month while he was in jail. However, after respondent was sentenced to prison in September 2017, she could only provide the services offered at respondent's facility. According to the foster care worker, she provided respondent with letters once a month, including information about the children's placement, asking if he was participating in services. She also provided two pieces of paper per child for letters and any copies of his treatment plan. Respondent did not reply to DHHS until August 2018, when he provided one letter and proof he had attended some services in prison. Respondent testified that those services included substance abuse, drug education, and self-help counseling. Respondent stated that he was attempting to get into a parenting class in prison.
Respondent denied that the foster care worker engaged in this contact. However, conflicting witness testimony creates an issue of credibility and we must defer to the trial court's determination in that regard. See In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). --------
Accordingly, respondent was provided with his treatment plan while in prison, and services were available that addressed aspects of his treatment plan. However, the trial court found that, on the basis of respondent's past conduct following his release from jail, it was unlikely that any progress respondent made in prison would make a difference after his release. We are not convinced that the trial court was mistaken. Nor are we convinced that the trial court erred when it found that DHHS provided respondent with information and services, respondent failed to take advantage of services, and respondent neglected his children even when he was not imprisoned. We conclude that respondent has not demonstrated any error in the trial court's finding that DHHS engaged in reasonable efforts to reunify him with the children, much less plain error.
Affirmed.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly