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deeming issues that were insufficiently briefed or not included in the statement of questions presented abandoned
Summary of this case from In re WoodsonOpinion
No. 347809
11-14-2019
IN RE L. D. RIPPY, Minor.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Lesley C. Fairrow, Assistant Attorney General for the Department of Health and Human Services. Jeffrey M. Young for respondent. Michigan Children's Law Center (by Alexandra Ghent) for the minor child.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Lesley C. Fairrow, Assistant Attorney General for the Department of Health and Human Services.
Jeffrey M. Young for respondent.
Michigan Children's Law Center (by Alexandra Ghent) for the minor child.
Before: O'Brien, P.J., and Beckering and Letica, JJ.
O'Brien, P.J.
Respondent appeals as of right the order terminating her parental rights to the minor child, LR, under MCL 712A.19b(3)(b)(i ) (the parent's act caused physical injury and there is a reasonable likelihood that the child will suffer from injury or abuse in the future in the parent's home), MCL 712A.19b(3)(g) (the parent failed to provide proper care or custody for the child), and MCL 712A.19b(3)(j) (there is a reasonable likelihood that the child will be harmed if returned to the parent's home). We affirm.
I. FACTS
On September 19, 2018, petitioner, the Department of Health and Human Services (DHHS), filed a petition for permanent custody of L.R. The DHHS alleged in the petition that on July 25, 2018, Children's Protective Services (CPS) received a complaint that on July 24, 2018, respondent gave birth to LR, who was in critical condition and had symptoms of fetal alcohol syndrome (FAS). The petition stated that LR was born prematurely at 32 weeks and that he would require long-term medical treatment because of suspected FAS. LR had the "physical characteristics of FAS, including: microcephaly, a thin upper lip, clenched jaw, lower set ears, webbed feet, and no testes." He also had an "intraventricular hemorrhage, hydrocephalus (buildup of fluid in the cavities deep within the brain), cystic encephalomalacia, and a small heart murmur." There was an additional concern that LR had a brain bleed that would require ongoing medical treatment. It was reported that LR had "very minimal brain activity," and that he was "brain dead and neurologically devastated." The DHHS alleged that respondent admitted to consuming alcohol throughout her pregnancy, and the DHHS requested termination of respondent's parental rights at the initial dispositional hearing.
At that hearing, CPS Specialist Kiana Anderson testified that respondent "didn't have any intention of planning for this baby" and that "she wanted to give her baby to her mom." Following the initial dispositional hearing, the trial court entered an order stating its findings of fact and conclusions of law and ultimately terminated respondent's parental rights.
II. REUNIFICATION EFFORTS
Respondent does not challenge the trial court's determination that statutory grounds existed for terminating her parental rights. Rather, she argues that the trial court erred by terminating her parental rights because the DHHS failed to make reasonable efforts to reunite her with LR and should have established a guardianship for LR with respondent's mother. We disagree.
Reasonable efforts to reunify the child and family must be made in all cases except those involving aggravated circumstances under MCL 712A.19a(2). In re Mason , 486 Mich. 142, 152, 782 N.W.2d 747 (2010) (quotation marks and citation omitted). MCL 712A.19a(2)(a) states that reasonable efforts to reunify the child and family are not required if "[t]here is a judicial determination that the parent has subjected the child to aggravated circumstances as provided in section 18(1) and (2) of the child protection law, 1975 PA 238, MCL 722.638." In turn, § 18 of the Child Protection Law, MCL 722.638, provides:
(1) The department shall submit a petition for authorization by the court under section 2(b) of chapter XIIA of 1939 PA 288, MCL 712A.2, if 1 or more of the following apply:
(a) The department determines that a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child's home, has abused the child or a sibling of the child and the abuse included 1 or more of the following:
* * *
(iii ) Battering, torture, or other severe physical abuse.
* * *
(v ) Life threatening injury.
* * *
(2) In a petition submitted as required by subsection (1), if a parent is a suspected perpetrator or is suspected of placing the child at an unreasonable risk of harm due to the parent's failure to take reasonable steps to intervene to eliminate that risk, the department shall include a request for termination of parental rights at the initial dispositional hearing as authorized under section 19b of chapter XIIA of 1939 PA 288, MCL 712A.19b.
Under MCR 3.977(E) :
The court shall order termination of the parental rights of a respondent at the initial dispositional hearing held pursuant to MCR 3.973, and shall order that additional efforts for reunification of the child with the respondent shall not be made, if
(1) the original, or amended, petition contains a request for termination;
(2) at the trial or plea proceedings, the trier of fact finds by a preponderance of the evidence that one or more of the
grounds for assumption of jurisdiction over the child under MCL 712A.2(b) have been established;
(3) at the initial disposition hearing, the court finds on the basis of clear and convincing legally admissible evidence that had been introduced at the trial or plea proceedings, or that is introduced at the dispositional hearing, that one or more facts alleged in the petition:
(a) are true, and
(b) establish grounds for termination of parental rights under MCL 712A.19b(3)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), or (m) ;
(4) termination of parental rights is in the child's best interests.
In its petition, the DHHS sought termination at the initial dispositional hearing under MCL 722.638 because it believed that LR had suffered severe physical abuse at the hands of respondent. The DHHS alleged that respondent excessively consumed alcohol while pregnant with LR, causing LR to be born prematurely with extreme and ongoing medical complications.
Following the initial dispositional hearing, the trial court found that respondent had a severe problem with alcohol that persisted while she was pregnant with LR and that she suffered from multiple mental health issues "that she stopped treating upon finding out she was pregnant." The trial court also found that LR was born with many medical issues characteristic of FAS, including "a thin upper lip, a clenched jaw, lower set ears, webbed feet, no testes, an interventricular hemorrhage, a build up of fluid in his brain cavities and a small heart murmur." On the basis of these medical issues, the trial court concluded that LR was a medically fragile child who would require special and lifelong medical care. It was for these reasons that the trial court found grounds to assume jurisdiction over LR. And it was for similar reasons that the trial court held that the DHHS had established statutory grounds for termination by clear and convincing evidence. The trial court considered respondent's admission that she drank alcohol throughout her pregnancy; LR's resulting medical symptoms of FAS and need for ongoing, lifelong medical treatment; and respondent's failure to seek treatment for her alcoholism or mental health issues. On these facts, the trial court concluded that statutory grounds for termination were established under MCL 712A.19b(3)(b)(i ), (g), and (j). As will be discussed in more detail, the trial court also concluded that termination was in LR's best interests.
In light of its stated findings, the trial court satisfied the MCR 3.977(E) requirements necessary to terminate respondent's rights at the initial dispositional hearing. Also, it is clear from its stated findings that the trial court determined that LR had suffered severe physical abuse (respondent's excessive consumption of alcohol while pregnant) that resulted in a life-threatening injury (LR's FAS symptoms and the accompanying medical issues) and that respondent was the perpetrator of this abuse. These findings amount to a judicial determination that respondent subjected LR to aggravated circumstances as provided in MCL 722.638(1) and (2). Therefore, under MCL 712A.19a(2)(a), the DHHS was not required to make reasonable efforts to reunite respondent with LR, and respondent's argument that the DHHS failed to make reasonable efforts has no merit.
Specifically, MCL 722.638(1)(a)(iii ) and (v ). We also note that the trial court arguably could have concluded that respondent's abuse of LR included serious impairment of an organ under MCL 722.638(1)(a)(iv ). The trial court explicitly found that LR suffered injuries to his brain —"an interventricular hemorrhage [and] a build up of fluid in his brain cavities"—because of respondent's excessive consumption of alcohol while pregnant. The brain is an organ, and the court found that the injuries to LR's brain would require extensive medical treatment.
The dissent addresses whether reasonable efforts are required when the DHHS proceeds to request termination at the initial dispositional hearing under MCL 722.638(3). Whether the DHHS is required to provide reasonable efforts in that situation is not before this Court and has no implications for this case, so it should be left as an issue for another day.
Our dissenting colleague delves into whether the definition of "child" in MCL 722.638(1) includes "an embryo or fetus for purposes of the statutes governing the termination of parental rights or child protection." This issue is waived because it was never raised by the parties either in the trial court or on appeal. Walters v. Nadell , 481 Mich. 377, 387, 751 N.W.2d 431 (2008) (explaining that Michigan generally follows the "raise or waive" rule). Though we could nevertheless exercise our discretion and review the issue—because it is a question of law for which the necessary facts have been presented—"this Court should decline to do so when it would require us to construct and evaluate our own arguments." Aguirre v. Dep't of Corrections , 307 Mich. App. 315, 326, 859 N.W.2d 267 (2014).
As for respondent's argument that a guardianship should have been established, no one petitioned the trial court for a guardianship and there is no suggestion in the record that the grandmother with whom LR was placed would have agreed to that arrangement. In its initial petition, the DHHS requested termination of respondent's parental rights. Typically, "the appointment of a guardian is done in an effort to avoid termination of parental rights." In re TK , 306 Mich. App. 698, 705, 859 N.W.2d 208 (2014). And for a court to consider a guardianship before termination, one of two conditions must be met: either the DHHS must demonstrate "under [ MCL 712A.19a(8) ] that initiating the termination of parental rights to the child is clearly not in the child's best interests" or the court must "not order the agency to initiate termination" proceedings under MCL 712A.19a(8). MCL 712A.19a(9). See also In re COH , 495 Mich. 184, 197, 848 N.W.2d 107 (2014). Even then, a court can order a guardianship only if it "determines that [doing so] is in the child's best interests[.]" MCL 712A.19a(9)(c). In this case, neither of the conditions precedent under MCL 712A.19a(9) were met, nor did the court determine that establishing a guardianship was in LR's best interests. In fact, the court concluded that termination was in LR's best interests as will be discussed in the next section. Accordingly, respondent's argument that the trial court should have established a guardianship for LR is without merit.
III. BEST INTERESTS
Respondent argues that the trial court erred by finding that termination of her parental rights was in LR's best interests. We disagree.
"Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts Minors , 297 Mich. App. 35, 40, 823 N.W.2d 144 (2012). "We review for clear error the trial court's determination regarding the children's best interests." In re White , 303 Mich. App. 701, 713, 846 N.W.2d 61 (2014).
The trial court may consider a number of factors when determining whether termination of a respondent's parental rights is in the child's best interests, including
"the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, and the advantages of a foster home over the parent's home." The trial court may also consider a parent's history of domestic violence, the parent's compliance with his or her case service plan, the parent's visitation history with the child, the children's wellbeing while in
care, and the possibility of adoption. [ Id. at 713-714, 846 N.W.2d 61, quoting In re Olive/Metts , 297 Mich. App. at 41-42, 823 N.W.2d 144.]
A parent's substance-abuse history is also relevant to whether termination is in the child's best interests. In re A.H. , 245 Mich. App. 77, 89, 627 N.W.2d 33 (2001).
In determining whether the termination of respondent's parental rights was in the best interests of LR, the trial court stated:
The court finds that it is in the best interest of [LR] to terminate the parents’ parental rights because of mother's extensive alcohol abuse history and father's desire to only plan with the support of the mother.[ ] [LR] has extensive medical issues and the parents’ [sic] are not in the position to meet [LR]’s regular needs or medical needs due to mother's unresolved mental health and alcoholism issues. Further, the parents’ [sic] indicated to the CPS worker that [they] did not wish to plan for [LR] and wanted the maternal grandmother to adopt him. [LR] is placed with his maternal grandmother and has been placed with her since his release from the hospital. [LR] is bonded to his grandmother, she
Father's rights were also terminated, but he is not a party to this appeal.
is able to meet his special needs and ensure that he receives the special medical care that he requires and she wants to adopt him.
CPS Specialist Anderson testified that respondent and LR shared a bond and that respondent visited him often. Despite this bond, the trial court found that termination was in LR's best interests. LR came into care because he displayed symptoms and characteristics of FAS at birth. Respondent admitted to drinking six beers a day during her pregnancy. Respondent reported to CPS Specialist Anderson that she has suffered from alcoholism "for the last six years". Also, LR is medically fragile and has extensive medical issues that require lifelong care, and it is unclear whether respondent would be able to care for him in light of her failure to address her own issues: her untreated alcoholism and mental health issues.
Moreover, respondent reported that she has another child that is not in her care because of her alcoholism. The guardian ad litem noted that the same conditions existed at the time of trial that existed when respondent placed her first child in a guardianship; respondent was still suffering from alcoholism and mental health issues. Because of LR's need for permanency, stability, and finality, LR cannot wait for respondent to seek treatment. In addition, respondent stated to CPS Specialist Anderson, on multiple occasions, that she wanted to voluntarily terminate her parental rights, which is further evidence that respondent was not ready to provide LR with a permanent and stable home. Therefore, the trial court did not clearly err when it determined that there was sufficient evidence to support termination of respondent's parental rights in order to serve LR's best interests, despite any remaining bond between respondent and LR.
Respondent's seven-year-old daughter was placed in a guardianship with the child's paternal grandmother.
In her best-interest argument, respondent notes, in a single sentence, that the parties were not afforded an opportunity for closing arguments. The transcript reflects that the trial court went off the record during the termination hearing and never went back on the record. Thus, the available transcript indicates that the proceedings ended before the attorneys were given the opportunity for closing arguments. Yet respondent does not explain how this affected the trial court's best-interest analysis, nor does she raise her lack of closing argument as a separate issue in her statement of questions presented. Given these failures, we deem the issue abandoned. See Etefia v. Credit Technologies, Inc. , 245 Mich. App. 466, 471, 628 N.W.2d 577 (2001) ("Insufficiently briefed issues are deemed abandoned on appeal."); Mettler Walloon, LLC v. Melrose Twp. , 281 Mich. App. 184, 221, 761 N.W.2d 293 (2008) ("This issue is not contained in the statement of questions presented; it is therefore deemed abandoned.").
Respondent follows this single sentence by asserting, "Therefore, the trial court clearly erred in its failure to explicitly address the various needs of the child." It is unclear how this relates to the inability of the parties to present closing argument. It is also unclear how the trial court failed to "explicitly address the various needs of the child." The trial court acknowledged LR's medical needs and concluded that respondent would not be able to adequately address them, while LR's current placement could. The trial court also noted that because of respondent's ongoing issues, she would be unable to meet LR's "regular needs," whereas LR's current placement wishes to adopt him, providing him an opportunity for permanency. We therefore conclude that respondent's argument does not warrant appellate relief.
Affirmed.
Letica, J., concurred with O'Brien, P.J.
Dissenting Opinion by BECKERING , J.
Beckering, J. (dissenting). In this child protective proceeding, respondent mother appeals as of right the trial court's order terminating her parental rights to the minor child, LR, under MCL 712A.19b(3)(b)(i ) (parent's act caused physical injury), MCL 712A.19b(3)(g) (failure to provide proper care or custody), and MCL 712A.19b(3)(j) (reasonable likelihood that child will be harmed if returned to parent). On appeal, respondent argues that the trial court erred by terminating her parental rights because petitioner, the Department of Health and Human Services, failed to make reasonable efforts to reunite her with her newborn child, LR, and that termination of her parental rights was not in LR's best interests. In light of my interpretation of the applicable statutes and existing Supreme Court precedent, I agree with respondent that the trial court erred by terminating respondent's parental rights without first requiring petitioner to make reasonable efforts for reunification in accordance with MCL 712A.19a(2). I would reverse and remand for further proceedings. I. FACTS
On September 19, 2018, petitioner filed an original permanent-custody petition, seeking to terminate respondent's parental rights to two-month-old LR. The petition alleged that it was contrary to LR's welfare to remain in respondent's care because of the risk of harm related to physical abuse, and it cited respondent's history of alcoholism, her disclosure of using alcohol throughout her pregnancy, and her acknowledgment that alcohol affects her ability to parent. The petition also indicated that respondent has another child, AF, who was not the subject of the petition because she was in a legal guardianship with her paternal grandmother. As evidence of physical abuse, the petition noted LR's physical characteristics consistent with fetal alcohol syndrome (FAS), including microcephaly, a thin upper lip, a clenched jaw, lower-set ears, webbed feet, no testes, an intraventricular hemorrhage, hydrocephalus, cystic encephalomalacia, and a small heart murmur. The petition sought termination of respondent's parental rights under MCL 712A.19b(3)(a), (b)(i ) and (ii ), (g), (j), (k)(i ), (iii ), (iv ), and (v ).
At the preliminary hearing, CPS Specialist Kiana Anderson testified that medical staff told her that FAS cannot be diagnosed until later in life; hence, they indicated that LR had characteristics consistent with FAS. Anderson agreed that the medical staff had speculated that LR's conditions were perhaps the result of FAS. Anderson also testified that respondent had no prior CPS history.
MCL 712A.19b(3)(a) (abandonment) and (3)(b)(ii ) (parent who had the opportunity to prevent the physical injury to the child failed to do so) did not apply to respondent, but to father, whom petitioner believed at the time to be the putative father.
Following the preliminary hearing and a pretrial hearing, the case proceeded to a bench trial on November 7, 2019. At the hearing, CPS Specialist Kiana Anderson, acting on behalf of petitioner, and LR's father testified. LR's medical records were also admitted into evidence. Anderson testified that LR had been released from the hospital and that his medical records indicated he had physical characteristics consistent with FAS. LR did not test positive for substances at the time of his birth. Anderson recounted that respondent admitted drinking alcohol throughout her pregnancy, that she drinks six beers daily, a problem she's had for three or four years, and that she wants to get treatment. She also said that respondent was visiting LR "very often" at the hospital. On one occasion, respondent needed to sign a surgical consent form, but she showed up intoxicated, and the hospital was unable to accept her consent; she returned later and signed the form. According to Anderson, this was the only report of respondent showing up at the hospital intoxicated.
The preliminary hearing was continued over the course of three dates because of respondent's indication of having Indian heritage, requiring compliance with the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq. , and because of the filing of an amended petition to add LR's father as a respondent in the proceedings. Father's parental rights, though also terminated, are not at issue in this appeal.
Anderson testified that LR's medical records indicate he may need lifelong medical care associated with his multiple conditions, although at the time of the hearing he was doing well under the circumstances. She said that the parents told her they wished to give LR to respondent's mother because they both knew respondent had an alcohol problem. Anderson clarified, however, that respondent and father were not actually voluntarily giving up their parental rights. Anderson also testified that respondent had an older child, AF, for whom respondent had not provided care in more than three years. AF had been in a guardianship with her paternal grandmother since 2016, because of respondent's alcoholism as well as domestic violence with AF's father at the time the guardianship was formed.
Regarding respondent's mental health, Anderson testified that respondent said she has severe depression and anxiety and had been diagnosed with post-traumatic stress disorder but that she had stopped taking her required medication because she was pregnant. Anderson admitted that petitioner had not provided respondent any reunification services but stated that was because petitioner was seeking termination of respondent's parental rights.
Father testified that he knew respondent was drinking during the pregnancy but that she drank less while pregnant; he approximated that she drank five beers a day. As father was testifying that he wanted respondent's mother to adopt LR, the court went off the record and the proceedings abruptly ended.
In a November 21, 2018 opinion and order, the trial court concluded that it had jurisdiction under MCL 712A.2(b). Summarizing the evidence presented at trial, the trial court found statutory grounds to terminate under MCL 712A.19b(3)(b)(i ), (g), and (j), and it concluded that termination of respondent's parental rights was in LR's best interests.
II. ANALYSIS
Respondent argues that the trial court erred by terminating her parental rights because petitioner failed to make reasonable efforts to reunite her with LR in violation of MCL 712A.19. Petitioner agrees that, in general, reasonable efforts must be made to reunite the parent and the child, as required by MCL 712A.19a(2), and that the sufficiency of the petitioner's efforts toward reunification is relevant to the sufficiency of the evidence needed to establish one of the statutory bases for termination of parental rights. Petitioner contends, however, that "such efforts are not required where the case proceeds under an original petition for termination." A key question in this case is when is it okay to proceed under an original petition for termination and not make reasonable efforts at reunification? Having reviewed the applicable statutes and Supreme Court precedent, I conclude that it is only in the presence of one of the aggravated circumstances expressly delineated in MCL 712A.19a(2)(a) through (d) that such efforts toward reunification need not be made.
A. WHEN REASONABLE EFFORTS ARE REQUIRED
According to MCL 712A.19a(2),
[r]easonable efforts to reunify the child and family must be made in all cases except if any of the following apply:
(a) There is a judicial determination that the parent has subjected the child to aggravated circumstances as provided in section 18(1) and (2) of the child protection law, 1975 PA 238, MCL 722.638.
(b) The parent has been convicted of 1 or more of the following:
(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 the termination of parental rights.
(d) The parent is required by court order to register under the sex offenders registration act.
MCL 722.638(1) states, in relevant part:
The department shall submit a petition for authorization by the court under section 2(b) of chapter XIIA of 1939 PA 288, MCL 712A.2, if 1 or more of the following apply:
(a) The department determines that a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child's home, has abused the child or a sibling of the child and the abuse included 1 or more of the following:
* * *
(iii ) Battering, torture, or other severe physical abuse.
(iv ) Loss or serious impairment of an organ or limb.
(v ) Life threatening injury.
MCL 722.638(1) requires petitioner to submit a petition for the court's authorization when a child has suffered from or is at risk of certain types of aggravated abuse. If a parent is a suspected perpetrator of any aggravated abuse described in Subsection (1) or is suspected of placing the child at an unreasonable risk of harm because of the parent's failure to take reasonable steps to intervene to eliminate that risk, then Subsection (2) requires petitioner to include in this mandated petition a request for termination at the initial dispositional hearing. MCL 722.638(2).
Quoting MCL 712A.19a(2), our Supreme Court has explicitly stated that "[r]easonable efforts to reunify the child and family must be made in all cases except those involving aggravated circumstances" not present in that case. In re Mason , 486 Mich. 142, 152, 782 N.W.2d 747 (2010) (quotation marks and citation omitted). See also In re Rood , 483 Mich. 73, 99-100, 763 N.W.2d 587 (2009) (opinion by CORRIGAN , J.) ("Under MCL 712A.19a(2), [r]easonable efforts to reunify the child and family must be made in all cases except those involving aggravated circumstances not present here.") (quotation marks omitted; brackets in original). In In re Hicks , 500 Mich. 79, 85, 893 N.W.2d 637 (2017), our Supreme Court again noted that "[u]nder 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 support, it cited MCL 712A.18f(3)(b) and (c) and MCL 712A.19a(2) and noted in a footnote that "[t]here are certain enumerated exceptions to this rule, see MCL 712A.19a(2), none of which applies to this case." Id. at 85 & n. 4, 893 N.W.2d 637. See also MCR 3.965(C)(4) ; MCR 3.976(B)(1). In other words, the portal to proceeding "past go" and seeking termination of parental rights at the outset without bothering to make reunification efforts is framed by the parameters of MCL 712A.19a(2). I would conclude that petitioner was required to provide respondent with reasonable efforts at reunification
MCL 712A.18f(2) provides that "[b]efore the court enters an order of disposition in a proceeding under [MCL 712A.2(b) ] of this chapter, the agency shall prepare a case service plan that shall be available to the court and all the parties to the proceeding." MCL 712A.18f(3) dictates the requirements of a case service plan and what it must include, such as efforts to be made by the child's parent to enable the child to return to his or her home and efforts to be made by the agency to return the child to his or her home.
In support of its contention that reasonable efforts to reunify a child with his or her parent are not required in cases in which termination is the department's goal at the initial disposition, petitioner cites MCL 712A.19b(4), MCR 3.977(E), and In re HRC , 286 Mich. App. 444, 463, 781 N.W.2d 105 (2009). The cited authorities confirm the accuracy of petitioner's statement, but they do not address petitioner's authorization for seeking termination in an original petition and for its entitlement to relief from its duty to provide reunification services. MCL 712A.19b(4) provides, in part, that if petitioner files a petition to terminate the parental rights to a child, the court may enter a termination order at the initial dispositional hearing, and MCR 3.977(E) sets forth the circumstances under which the court must order termination of the respondent's parental rights at the initial disposition. Neither the statute nor the court rule, however, provides authority for petitioner to file an original petition seeking termination in the first place. In In re HRC , 286 Mich. App. at 446-448, 781 N.W.2d 105, the trial court terminated the respondent's parental rights at the initial disposition hearing, in part, because he had sexually abused two of his children. This Court addressed, among other issues, whether petitioner should have provided reunification services for the respondent. Petitioner sought termination in its original petition based on the allegations of two of the victims, changed its request to temporary custody when the accusers recanted their allegations, and then refiled the termination petition when new evidence of the respondent's sexual abuse of the children emerged. This Court followed its assertion that "[p]etitioner ... is not required to provide reunification services when termination of parental rights is the agency's goal," with the observation that, under the circumstances, MCL 722.638(1)(a)(ii ) required petitioner to file an original petition seeking termination. Id. at 463, 781 N.W.2d 105. Thus, In re HRC is consistent with the principle that petitioner must provide reunification services in all cases except those involving certain exceptional circumstances.
I acknowledge that in In re Moss , 301 Mich. App. 76, 91, 836 N.W.2d 182 (2013), this Court quoted In re HRC for the apparent proposition that a petitioner is not required to provide reunification services when termination of parental rights is the agency's goal, but the In re Moss Court neglected to explain that In re HRC explicitly entailed aggravated circumstances under MCL 722.638(1)(a)(ii). In re Moss cites as corroborative authority MCL 712A.19b(4), MCR 3.961(B), and MCR 3.977(E) ; but In re Moss itself entailed an aggravated circumstance because the respondent mother had attempted to suffocate her youngest daughter. In re Moss , 301 Mich. App. at 82, 836 N.W.2d 182. To the extent In re Moss stands for the proposition that reasonable efforts at reunification are not required in cases other than those with aggravated circumstances set forth in MCL 712A.19a(2), it runs afoul of our Supreme Court's explicit statements to the contrary in In re Mason , 486 Mich. at 152, 782 N.W.2d 747, In re Rood , 483 Mich. at 99-100, 763 N.W.2d 587, and In re Hicks , 500 Mich. at 85 & n. 4, 893 N.W.2d 637. We are bound by Supreme Court precedent. In re Nestorovski Estate , 283 Mich. App. 177, 206, 769 N.W.2d 720 (2009) ( Saad , C.J., dissenting) ("Michigan Supreme Court precedent that is binding on this Court does not permit an inferior court, appellate or trial, to overrule Supreme Court precedent[.]").
unless aggravated circumstances under MCL 712A.19a(2) existed.
I recognize that in a couple of unpublished opinions of this Court, MCL 722.638(3) has been cited as justification for a petitioner seeking termination at the initial disposition without having to provide reasonable efforts in cases that do not involve aggravated circumstances as described in MCL 722.638(1). But MCL 712A.19a(2)(a) only cites MCL 722.638(1) and (2), not MCL 722.638(3), as the exceptions under which the petitioner is not required to make reasonable efforts to reunify the child and family. This renders MCL 722.638(3) seemingly at odds with the limiting parameters of MCL 712A.19a(2). But in light of our Supreme Court's pronouncements in In re Mason , 486 Mich. at 152, 782 N.W.2d 747, In re Rood , 483 Mich. at 99-100, 763 N.W.2d 587, and In re Hicks , 500 Mich. at 85, 893 N.W.2d 637, I believe this Court is bound to restrict termination of parental rights without reunification efforts to only those instances with aggravated circumstances as set forth in MCL 712A.19a(2).
B. AGGRAVATED CIRCUMSTANCE UNDER MCL 712A.19a(2)
Because reasonable efforts at reunification must be made in "all cases" except in the presence of one of the aggravated circumstances set forth in MCL 712A.19a(2), this Court must next determine whether any of the facts alleged in the petition qualify as an aggravated circumstance. Mason , 486 Mich. at 152, 782 N.W.2d 747. Although the petition did not expressly state that it sought termination at the initial disposition under MCL 722.638(1) and (2), obviating the need for reasonable efforts under MCL 712A.19a(2)(a), the petition no doubt lends itself to that interpretation. Petitioner sought termination of respondent's parental rights under MCL 712A.19b(3)(b)(i ), a subparagraph that refers to a physical injury caused by a parent's act. Petitioner referred throughout this proceeding to respondent's alcoholism, her heavy drinking during pregnancy, and the fact that LR was born in critical condition with characteristics associated with FAS. Petitioner also identified MCL 712A.19b(3)(k)(iii ), (iv ), and (v ) as statutory grounds for the termination of respondent's parental rights. Termination is appropriate under these subparagraphs, respectively, when clear and convincing evidence establishes that a parent's abuse of a child included "[b]attering, torture, or other severe physical abuse"; "[l]oss or serious impairment of an organ or limb"; or "[l]ife-threatening injury," language mirroring that in MCL 722.638(1)(a)(iii ), (iv ), and (v ). Thus, the grounds on which petitioner sought termination of respondent's parental rights in its original petition reasonably suggest that petitioner believed respondent's prenatal conduct constituted severe physical abuse resulting in the conditions associated with FAS and that this conduct fell under MCL 722.638(1) and (2).
Also supporting this inference is an order dated October 16, 2018. In that order, the court indicated that reasonable efforts to avoid or eliminate the child's removal from the home were not required because the parents subjected the child to "severe physical abuse as provided in MCL 722.638(1) and (2), and as evidenced by child born with fetal alcohol symdrome [sic] and other injuries." This is the only order that refers to MCL 722.638 and indicates that reunification services are not required. Two orders issued September 20, 2018, indicate that petitioner had to make reasonable efforts at reunification and do not indicate the presence of aggravated circumstances under MCL 712A.19a(2)(a) through (d) or MCL 722.638(1) or (2). The same is true for two orders issued on November 7, 2018, one after the conclusion of the twice-continued preliminary hearing and the other after the pretrial hearing, both of which occurred on the same date. In the order following termination of respondent's parental rights, the court reported that reasonable efforts were made to preserve and unify the family to make it possible for the child to safely return home and that those efforts were unsuccessful. "[I]t is axiomatic that a court speaks through its orders." People v. Kennedy , 384 Mich. 339, 343, 183 N.W.2d 297 (1971). In this case, however, it is not entirely clear what the court is saying. But the record is clear that no case service plan was ever prepared and that no services were ever offered or provided to respondent.
However, according to its plain language, MCL 722.638(1) applies to a "child," and our Legislature has not expressly defined "child" to include an embryo or fetus for purposes of the statutes governing the termination of parental rights or child protection. MCL 712A.2, the chapter in the Probate Code, MCL 710.21 et seq. , governing jurisdiction, procedure, and disposition in termination of parental rights cases, does not define "child." Elsewhere, the Probate Code defines "child" as "an individual less than 18 years of age." MCL 710.22(j) (adoption code). The Child Protection Law, MCL 722.621 et seq. , defines "child" as "a person less than 18 years of age[,]" see MCL 722.622(f), as does the Child Abuse and Neglect Prevention Act, MCL 722.601 et seq. , see MCL 722.602(1)(a). The Probate Code defines "person" as "an individual, partnership, corporation, association, governmental entity, or other legal entity." MCL 710.22(q). Thus, neither the Probate Code, nor the Child Protection Law, nor the Child Abuse and Neglect Prevention Act specifically define "child" or "person" to include an embryo or fetus.
Although the Probate Code, MCL 710.21 et seq. , uses "individual" to refer to a child and the compilation of statutes dealing with children uses "person," there is no meaningful difference between the two words. In 1994, the Legislature substituted the word "individual" for "person" in many sections of the Probate Code. 1994 PA 222, effective January 1, 1995.
In addition, this Court has declined to accomplish by judicial amendment that which the Legislature has not expressly intended. See In re Dittrick Infant , 80 Mich. App. 219, 223, 263 N.W.2d 37 (1977). In Dittrick , this Court considered whether the probate court had jurisdiction under MCL 712A.2 to enter an order concerning the custody of an unborn child under MCL 712A.2. Id. at 222, 263 N.W.2d 37. At the time the case was decided, MCL 712A.2(b)(2) granted the probate court "[j]urisdiction in proceedings concerning any child[ ] under 17 years of age found within the county" when certain circumstances made the child's home or environment an unfit place for the child to live. In Dittrick , 80 Mich.App. at 221, 263 N.W.2d 37, the respondent mother became pregnant while the respondent-parents were undergoing the termination of their parental rights to an older child based on the physical and sexual abuse of the child. Believing birth to be imminent, the petitioner filed a petition seeking temporary custody of the unborn child. Id. In determining that the probate court could not take jurisdiction over an unborn child, this Court reasoned:
In 1996 PA 250, effective January 1, 1997, the Legislature replaced "child" with "juvenile."
We recognize that the word ‘child’ could be read as applying even to unborn persons. However, our reading of other sections of Chapter XIIA of the Probate Code convinces us that the Legislature did not intend application of these provisions to unborn children.
The Court went on to make the following suggestion:
The Legislature may wish to consider appropriate amendments to the Probate Code. Indeed, the background of the present case has convinced us that such amendments would be desirable. However, the Code as now written did not give the probate court jurisdiction to enter its original order in the present case. We decline by judicial amendment to do that
which, at the time of enactment, the Legislature did not contemplate. [ Id. ]
In In re Baby X , 97 Mich. App. 111, 115, 293 N.W.2d 736 (1980), a case with facts similar to the present one, this Court was asked to decide "whether prenatal conduct—specifically, extensive narcotics ingestion by the mother—can constitute neglect sufficient for the probate court's assertion of jurisdiction" under MCL 712A.2(b). The petitioner argued that the mother had so neglected her child during pregnancy by taking narcotics that the probate court should exercise jurisdiction. Id. at 113, 293 N.W.2d 736. The probate court found sufficient evidence of neglect to take temporary custody of Baby X, and the circuit court affirmed that decision. The mother appealed in this Court, arguing that "prenatal conduct cannot constitute neglect or abuse under the Probate Code; therefore, the probate court wrongly asserted jurisdiction." Id. at 114, 293 N.W.2d 736. This Court noted that "while there is no wholesale recognition of fetuses as persons ... fetuses have been accorded rights under certain limited circumstances." Id. at 115, 293 N.W.2d 736 (indicating tort actions available to fetuses and to children born, but who suffered injury as fetuses). Reasoning that because fetuses have "a legal right to begin life with a sound mind and body," id. , and because "this Court recognized that mistreatment of a child is probative of how a parent may treat other soon-to-be-born siblings," id. at 116, 293 N.W.2d 736, this Court concluded that "prenatal treatment can be considered probative of a child's neglect as well," id. On that reasoning, the Court held that "a newborn suffering narcotics withdrawal symptoms as a consequence of prenatal maternal drug addiction may properly be considered a neglected child within the jurisdiction of the probate court." Id. The Court continued, however, "We pass no judgment upon whether such conduct will suffice to permanently deprive a mother of custody. Such custody determinations will be resolved at the dispositional phase where prenatal conduct will be considered along with postnatal conduct." Id. The Legislature has amended the relevant statutes multiple times since resolution of Dittrick and Baby X , yet it has not specifically included embryos and fetuses in those statutes’ protections. The relevant statutory language does not signal the Michigan Legislature's intent that a mother's prenatal conduct constitutes "child abuse." See People v. Jones , 317 Mich. App. 416, 429, 432, 894 N.W.2d 723 (2016) (holding that a fetus is not a "person" for purposes of first-degree child abuse, and noting that when the Legislature has intended to provide protections for embryos or fetuses, it has done so by specifically including them in the statutory language). The primary goal of statutory interpretation is to ascertain and give effect to the Legislature's intent. Mich. Ed. Ass'n v. Secretary of State (On Rehearing ), 489 Mich. 194, 217, 801 N.W.2d 35 (2011). The first criterion in determining intent is the specific language of the statute at issue. U.S. Fidelity & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing ), 484 Mich. 1, 13, 795 N.W.2d 101 (2009). In the absence of any indication of legislative intent that a mother's prenatal conduct constitutes abuse of the child, I do not think that MCL 722.638(1) applies to respondent's prenatal conduct. Accordingly, Subsection (2) neither required petitioner to seek termination in its original petition nor allowed it to omit making reasonable efforts at reunification. The very purpose of MCL 712A.19a(2) is to give parents a chance to rectify the conditions that caused their child's removal from the home, absent specifically delineated aggravated circumstances. In this instance, LR was in safe hands, and petitioner owed respondent reasonable efforts to overcome her obstacles, as serious as they were.
The Court recognized that under the probate code, "a permanent custody order must be based on circumstances which establish or seriously threaten neglect of the child for the long-run future. The quantum of neglect sufficient for temporary custody or merely establishing jurisdiction implicitly must be less, i.e. temporary neglect." Baby X , 97 Mich. App. at 115-116, 293 N.W.2d 736 (quotation marks omitted).
Coincidentally, this very topic was addressed in a recent article by Frank E. Vandervort in the Michigan Bar Journal. Vandervort, Prenatal Drug Exposure as Aggravated Circumstances , 98 Mich. B. J. 24 (Nov. 2019). Mr. Vandervort points out that "federal law allows each state to define a set of ‘aggravated circumstances’ cases in which the state need not make efforts to reunify an abused or neglected child with his or her parent, but may instead seek immediate termination of parental rights." Id. at 26. Citing MCL 722.638 and MCL 712A.19a(2), he then concludes that "[p]renatal exposure, therefore, constitutes aggravated circumstances" and that "[a] petition alleging prenatal exposure must seek termination of parental rights at the initial disposition." Id. & n. 19. Mr. Vandervort fails to acknowledge that our Legislature has not deemed a fetus a child for purposes of MCL 722.638. It may be time for the Legislature to consider whether a parent's prenatal conduct can result in injuries that constitute aggravated circumstances for purposes of MCL 722.638 and MCL 712A.19a(2). However, given the significant ramifications of such a policy decision, I believe it for the Legislature to decide, not for this Court to impose by judicial amendment. See Dittrick , 80 Mich. App. at 223, 263 N.W.2d 37.
Per In re Baby X , respondent's prenatal conduct can certainly be considered along with her postnatal conduct at the dispositional phase after services are provided in accordance with MCL 712A.19a(2). In re Baby X , 97 Mich. App. at 116, 293 N.W.2d 736.
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Because I believe respondent was entitled to reunification services, I would reverse the trial court and remand for further proceedings. Respondent is entitled to reasonable efforts at reunification before the trial court proceeds to a termination decision. MCL 712A.18f(c) and (d) ; MCL 712A.19a(2). "As part of these reasonable efforts, 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." In re Hicks , 500 Mich. at 85-86, 893 N.W.2d 637. See also In re Mason , 486 Mich. at 156, 782 N.W.2d 747, and In re Rood , 483 Mich. at 76, 763 N.W.2d 587 (opinion by CORRIGAN , J.) ("[W]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.") (quotation marks and citation omitted).
Given my conclusion that termination at the initial disposition was improper, respondent's best-interests argument would be rendered moot.