Opinion
No. 349565
12-19-2019
In re SMITH, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 10-496888-NA Before: RIORDAN, P.J., and JANSEN and STEPHENS, JJ. PER CURIAM.
Respondent-father appeals as of right the order terminating his parental rights to the minor children, BMS and CJS, under MCL 712A.19b(3)(b)(i) (parent caused physical injury); (g) (failure to provide proper care or custody); (j) (reasonable likelihood of harm if returned to the parent); (k)(iii) (parent battered, tortured, or committed other severe physical abuse against the child); (k)(iv) (parent's abuse caused the loss or serious impairment of an organ or limb); and (k)(v) (parent caused a life-threatening injury). We affirm.
A third child, JV, was also born to the children's mother, but JV is not a party to this appeal because respondent is not JV's legal father. During the course of these proceedings, BMS, CJS, and JV were removed from mother's care, but she is not a party to this appeal. Accordingly, the term "respondent" as used in this opinion refers only to respondent-father.
On April 6, 2018, the Department of Health and Human Services (the DHHS) filed a petition requesting the removal of BMS, CJS, and JV from the home based on mother's substance abuse and respondent-father's criminal history. It also requested the termination of mother's parental rights. However, the trial court allowed the minor children to remain in respondent-father's custody, under the supervision of the DHHS. Subsequently, however, petitioner amended the petition and requested termination of respondent-father's parental rights, following an incident on July 14, 2018, where respondent-father caused physical harm to the minor children and their mother. Specifically, petitioner alleged that respondent-father had cut CJS' arm with a knife, choked CJS, threatened to "gut [CJS] like a fish," attempted to suffocate BMS, repeatedly struck JV in the face and on the top of the head with the butt of a knife, stabbed the children's mother, and repeatedly slammed the children's mother's head on the floor while she was holding CJS. An order terminating respondent-father's parental rights was entered on May 6, 2019. This appeal followed.
The children's mother is not a party to this appeal. --------
Respondent-father's sole argument on appeal is that the trial court erred when it decided to terminate respondent-father's parental rights because petitioner did not provide reasonable efforts to reunify him with his children. At the preliminary hearing, the trial court concluded that petitioner did not need to make reunification efforts with respondent-father. Respondent-father failed to object, so respondent-father's issue is unpreserved. In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012).
We review respondent-father's unpreserved issue for "plain error affecting substantial rights." In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011) (quotation marks and citation omitted). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App at 9.
Generally, "the [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), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). This obligation applies to an incarcerated parent, such as respondent-father. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). However, DHHS does not need to make reasonable efforts when aggravating circumstances exist. In re Moss, 301 Mich App 76, 90-91; 836 NW2d 182 (2013). An aggravated circumstance exists 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." MCL 712A.19a(2)(a). Aggravated circumstances involve child abuse that encompasses, among other things, battering, torture, or other severe physical abuse of a child or sibling of a child. MCL 722.638(1)(a)(iii).
At the preliminary hearing on July 24, 2018, a representative from the DHHS testified that respondent-father was "charged and arrested on 7-14 for severely abusing" the children. He testified that respondent-father "slashed" CJS with a knife and that he attempted to suffocate the children. Respondent-father also hit JV on the top of his head with an open hand and with the butt of the knife. Adoption by the minor children's maternal grandmother was identified as the permanency plan. The trial court concluded that DHHS did not need to make reunification efforts with respondent-father because respondent-father subjected the children to the aggravated circumstances of "extreme physical and emotional abuse of the children/Mother[.]"
Because there was evidence that respondent-father severely abused BMS, CJS, and JV, we conclude that the trial court did not plainly err when it concluded that the DHHS did not need to provide reunification services to respondent-father. See MCL 722.638(1)(a)(iii) (explaining that the aggravated circumstances of "[b]attering, torture, or other severe physical abuse" can be to a child or the child's sibling).
Affirmed.
/s/ Michael J. Riordan
/s/ Kathleen Jansen
/s/ Cynthia Diane Stephens