IN RE R A CELL MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
October 12, 2010
In the Matter of R. A. CELL, Minor.
No. 296598
Oakland Circuit Court
Family Division
LC No. 08-753271-NA
Before: ZAHRA, P.J., and TALBOT and METER, JJ.
PER CURIAM.
Respondent mother appeals by right the trial court order terminating her parental rights to
the minor child under MCL 712A.19b(3)(c)(i) (condition that led to adjudication continues to
exist and no reasonable likelihood condition will be rectified), (g) (failure to provide proper care
or custody), and (j) (reasonable likelihood child will be harmed if returned to parent). We
affirm.
Respondent pleaded to allegations in the petition, allowing the trial court to take
jurisdiction over the minor child, and to allegations in a supplemental petition that provided the
trial court with clear and convincing evidence to terminate her parental rights pursuant to MCL
712A.19b(3)(c)(i), (g), and (j). The allegations included that respondent (1) made numerous
allegations that the minor child had been sexually molested by her father, (2) coached the minor
child to say that her father sexually molested her, (3) violated court orders regarding
appropriateness at visitation, and (4) held inappropriate conversations with the minor child
during visits. Petitioner provided services to respondent, including a psychological evaluation,
individual therapy, parenting classes, and visitation.
Respondent argues that petitioner did not make reasonable efforts toward reunification
pursuant to MCL 722.638 and that the trial court erred in its best interests determination.
Respondent, however, failed to raise the issue of whether petitioner made reasonable efforts in
the trial court. Thus, this issue therefore is not preserved for appellate review. This Court’s
review of an unpreserved claim that petitioner failed to make reasonable efforts to reunite a
respondent with her child is limited to determining whether a plain error occurred that affected
her substantial rights. People v Carines, 460 Mich 750, 762-764; 597 NW2d 130 (1999); In re
Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). “Generally, an error affects substantial
rights if it caused prejudice, i.e., it affected the outcome of the proceedings.” Utrera, 281 Mich
App at 9. Even if plain error occurs, reversal is warranted only if the error seriously affected the
fairness, integrity, or public reputation of the proceedings. Id.
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The statute requires the state to make “[r]easonable efforts to reunify the child and
family.” In re Rood, 483 Mich 73, 100; 763 NW2d 587 (2009), quoting MCL 712A19a(2). The
adequacy of the state’s attempts to provide services “may bear on whether there is sufficient
evidence to terminate a parent’s rights.” Rood, 483 Mich at 89, citing In re Fried, 266 Mich App
535, 542; 702 NW2d 192 (2005). This is true because, if the state does not provide adequate
services to a parent, the trial court may lack the evidence by which to decide whether the parent,
if provided with appropriate services, would have been able to rectify the conditions that led to
adjudication or to provide proper care and custody within a reasonable time considering the
child’s age. Rood, 483 Mich at 115-118. In other words, the respondent must establish that she
would have fared better if the agency had offered the services in question. Fried, 266 Mich App
at 543. Therefore, if the petitioner fails to make reasonable efforts, the trial court “is not required
to terminate parental rights.” Rood, 483 Mich at 105, citing MCL 712A.19a(6)(c).
Petitioner’s efforts were reasonable in this case. Respondent had the opportunity to
demonstrate her ability to parent by participating in, and benefiting from, the many services
provided by petitioner, including a psychological examination, parenting classes, individual
therapy, and supervised visitation. Respondent simply failed to cooperate or benefit from the
services provided. The trial court ordered respondent to act appropriately during visits with the
minor child, and respondent continually violated the trial court’s orders. Respondent continued
to make allegations that the minor child had been sexually molested, coach the minor child into
making allegations that she had been sexually molested, and videotape her visits with the minor
child even after the trial court ordered her not to do so. She made excuses for her failure to
comply with court orders and appear at court hearings, and she then recanted the excuses
claiming them to be dreams. Respondent failed to take medication prescribed for her mental
health issues, claiming she had no insurance, yet was able to take medication for pain without
having insurance. She was discharged from court ordered therapy for failure to attend four
sessions in a row. Respondent did seek out her own therapist, but she did not disclose
information to him that was critical for her to benefit from the therapy.
Respondent argues that petitioner did not make reasonable efforts because a termination
petition was filed before disposition occurred. The record does not support this. An order of
disposition was entered on February 3, 2009, after respondent pleaded to the allegations in the
petition. When the trial court addressed petitioner’s motion to suspend parenting time on April
17, 2009, and after hearing the guardian ad litem’s report of respondent’s inappropriateness at
visitation with the minor child, the trial court suspended respondent’s visitation and ordered
petitioner to file a termination petition. Respondent did not appear in court on that date. The
termination petition was filed on April 20, 2009 pursuant to the trial court’s order.
The evidence does not support a finding that respondent would have fared better had
additional services been offered or had she be given additional time or chances before the filing
of the termination petition. The trial court did not clearly err when it found the evidence clear
and convincing to terminate respondent’s parental rights to the minor child pursuant to MCL
712A.19b(3)(c)(i), (g), and (j). MCR 3.977(K).
The trial court also did not clearly err in determining, after a best interests hearing, that
terminating respondent’s parental rights was in the child’s best interests. MCL 712A.19b(5). A
trial court may consider evidence on the whole record in making its best interests determination.
In re Trejo, 462 Mich 341, 353; 612 NW2d 407 (2000).
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Respondent continuously violated court orders, continued to make allegations of sexual
molestation perpetrated on the minor child, made excuses for failing to comply with court orders
and failing to appear at court hearings that were not credible. Respondent’s testimony and
actions were filled with inconsistencies. She was not forthright with the therapists she dealt with
in terms of her issues. She was more concerned with her own best interests than the best
interests of the child. The child had been in her care for 20 percent of her life, and respondent
remained incapable of providing the child with the permanence and stability that she needed.
Affirmed.
/s/ Brian K. Zahra
/s/ Michael J. Talbot
/s/ Patrick M. Meter
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