IN RE AUSTIN MINORS (Per Curiam Opinion)
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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED December 22, 2020 In re AUSTIN, Minors. No. 352959 Ingham Circuit Court Family Division LC No. 18-001108-NA Before: CAVANAGH, P.J., and JANSEN and SHAPIRO, JJ. PER CURIAM. Respondent-father appeals the trial court’s order terminating his parental rights to his minor children pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood of harm if returned to parent). We reverse. I. BACKGROUND Respondent’s first child was born in 2017. In February 2018, respondent was sentenced to one year and three months to four years’ imprisonment for assaulting, resisting, and obstructing a police officer. Respondent testified that he was involved in his first child’s life prior to his incarceration. After he was incarcerated, respondent’s second child was born to the same mother. In May 2018, the children’s mother left them in the care of her aunt and went missing. The maternal aunt sought a guardianship but was denied because of concerns with the home’s condition and her history with Child Protective Services. Because the aunt was not a suitable placement for the children, the Department of Health and Human Services (DHHS) filed a petition in August 2018 to take them into protective custody. At the time, respondent was listed as the putative father, but was not yet the children’s legal father. Respondent stated at a pretrial hearing that he believed he was the children’s biological father, wanted to be there for them, and wanted to participate in DNA testing.1 Respondent had signed an affidavit of parentage for both children, but it was invalid 1 Although he was not yet a party to the petition, respondent participated in a pretrial hearing in September 2018, -1- without the mother’s signature, which could not be obtained due to her disappearance.2 The proceedings continued as to the mother only. Respondent did not participate in any further hearings until the putative-father hearing held in April 2019, at which the trial court ordered that respondent was the children’s legal father. The delay in establishing paternity was not attributable to respondent. Nearly a year after the children were taken into custody, and two months after the putativefather hearing, DHHS filed a supplemental petition in June 2019, requesting that the father be added as a respondent to the petition and “ordered to participate in, and benefit from, reunification services.” At a hearing held later that month, respondent admitted to certain allegations in the petition and was adjudicated by the trial court. Respondent was ordered to comply with most of the recommendations that were given to the mother, including finding employment and stable housing, drug and alcohol screening and a psychological evaluation if necessary. The order of disposition also provided that defendant was to comply with and benefit from the case service plan. The parent agency treatment plan identified several strengths for respondent including literacy, resource management, and communication/interpersonal skills, and noted that respondent did not appear to have issues with his physical health, substance abuse, sexual abuse, domestic relations, housing, or intellectual capacity. The parent agency treatment plan recommended services, such as a parenting class, that respondent could participate in after he was released from prison. The plan also provided for supervised visits which could not be accomplished due to respondent’s incarceration. The plan did not permit telephone or video visits. Respondent completed several classes in prison related to employment, money management and other skills. However, he was denied parole because he had not yet participated in and completed a Violence Prevention Program. This was a six-month course; respondent was on the waiting list and had been for some time. At the dispositional review hearing in September 2019, respondent stated that he was still waiting to get into the final class, but had done everything he could do on his end. At the permanency planning hearing in December 2019, respondent had not completed his final class and was still on the waiting list. At DHHS’s request, the trial court ordered that the children’s placement would continue and changed the goal to adoption due to respondent’s continued incarceration. At the February 2020 bench trial, respondent testified that his final class was to begin the following month and would be completed in six to seven months. The trial court terminated respondent’s parental rights.3 II. ANALYSIS 2 In May 2019, it was discovered that respondent-mother had died sometime after she disappeared. According to Michigan’s Offender Tracking and Information System, respondent-father was paroled from prison on November 18, 2020. 3 -2- Respondent argues that the trial court erred by finding that DHHS made reasonable reunification efforts and that there was insufficient evidence presented to terminate his rights. We agree on both counts.4 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). DHHS is not relieved of its duty to facilitate reunification merely because the parent is incarcerated. In re Mason, 486 Mich 142; 782 NW2d 747 (2010); In re Smith, 291 Mich App 621, 622; 805 NW2d 234 (2011). The Supreme Court’s decision in In re Mason, 486 Mich 142, is illustrative in this case. In that case, the respondent-father was incarcerated shortly before the birth of his second son. Id. at 147. Although the department suggested that the respondent-father needed to complete several services, services were provided only to the children’s mother. Id. The department did not evaluate the respondent-father’s parenting skills and the caseworker admitted that he never spoke with the respondent-father. Id. at 150, 162. Meanwhile, the respondent-father completed educational classes, enrolled in a parenting class, and arranged for employment and housing from prison while his children were in the care of relatives. Id. at 148-149. The trial court terminated the respondent-father’s parental rights and the Michigan Supreme Court reversed, holding that termination was erroneous where the department and the court “failed to involve or evaluate respondent, but then terminated his rights, in part because of his failure to comply with the service plan, while giving him no opportunity to comply in the future.” Id. at 151-152, 159. Mason is distinguishable in some respects,5 but it is highly instructive on whether reasonable efforts were made in this case. As in Mason, DHHS did not provide respondent with any direct services aimed at reunification, such as parenting classes or family team meetings. The case service plan and parent agency treatment plan both recommended services, but the caseworkers repeatedly advised that there were no services that DHHS could offer respondent while incarcerated. However, there is no indication in the record that the caseworkers attempted to coordinate services with the prison. See id. at 156-157 (indicating that reasonable efforts were not made when the department did not make efforts to facilitate access to services in prison). And We review a trial court’s finding whether DHHS made reasonable efforts toward reunification for clear error. See In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005). A trial court’s finding that a statutory ground for termination has been proved by clear and convincing evidence is also reviewed for clear error. See In re Utrera, 281 Mich App 1, 15; 761 NW2d 253 (2008). Clear error exists when we are left with a definite and firm conviction that a mistake has been made. See In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). 4 5 For instance, in Mason, the incarcerated respondent-father participated via phone during one pretrial hearing, but was not notified of several months of additional review and permanency planning hearings and was not offered the opportunity to participate in them by phone or in person. In re Mason, 486 Mich at 154. In this case, respondent participated via telephone or Polycom in every hearing after the putative father hearing. -3- DHHS all but concedes that the caseworker’s contact with respondent, which was limited to sending him one letter per month, was deficient. DHHS nonetheless asks that we affirm the trial court’s finding that reasonable efforts were made on the basis of its efforts to locate respondent when he was the alleged father and to investigate placements for the children in relative care. We are not convinced that efforts to find a putative father or evaluate possible relative placements satisfies DHHS’s duty to make reasonable efforts toward reunification in the absence of an opportunity to participate in a case service plan. As part of the DHHS’s reasonable efforts, it “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/Brown, 500 Mich at 79. The case service plan must include, in relevant part, a schedule of services “to be provided to the parent . . . to facilitate the child’s return to his or her home . . . .” MCL 712A.18f(3)(d). DHHS maintains that it could not offer respondent services while he was incarcerated. But this was the same argument made in Mason, and the Supreme Court highlighted the fact that the department did not attempt to facilitate services at the prison or update to the plan to reflect respondent’s incarceration. See In re Mason, 486 Mich at 157. The Court remained convinced that the department and the trial court “failed to address respondent’s right to services . . . .” Id. at 158. As stated, there is no indication in this case that DHHS contacted respondent’s prison about the possibility of facilitating services or arranging for his participation in a family team meeting. Thus, like Mason there is a “hole” in the record given that respondent was not evaluated by DHHS or given the opportunity to participate in services. See id. at 159-160 (quotation marks and citation omitted). And because there is no evidence in the record about respondent’s parental fitness, his termination was necessarily based on his incarceration. However, Mason was unequivocal that termination of rights cannot rest solely on that basis. “Incarceration alone is not a sufficient reason for termination of parental rights.” Id. at 146. Turning to the specific statutory grounds, in Mason the Court found that, when a parent cannot provide proper care because of incarceration, MCL 712A.19b(3)(c)(i), (g) and (h)6 essentially require “clear and convincing proof that the parent has not provided proper care and custody and will not be able to provide proper care and custody within a reasonable time.” Id. at 164-165. The Court found that termination under those statutory grounds was premature when the trial court had not evaluated “whether respondent could care for his children in the future, either personally or through his relatives.” Id. at 165. Respondent’s inability to provide proper care and failure to make progress on the reason for the adjudication flow completely from his imprisonment. We recognize that, unlike Mason, 6 Neither DHHS nor the trial court relied on MCL 712A.19b(3)(h) in this case as it is plainly inapplicable. That provision, cited in Mason, allows for termination when there is clear and convincing evidence that “[t]he parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child’s proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.” -4- respondent’s suggested relative placements for the children were either not interested or deemed inappropriate by the DHHS and the trial court.7 Nonetheless, the fact remains that there was no evaluation of whether respondent would be able to care for his children when released. Nor was there any consideration of the fact that respondent, on his accord, had completed classes during his incarceration aimed at obtaining employment after his release. Instead, the trial court terminated respondent’s rights because he was going to be incarcerated for six to nine months and then would have to show compliance with the case service plan. This timeline, however, is similar to the one in Mason, where respondent was going to be eligible for parole in five months and there was testimony that it would take six months after that for the department to determine if he was a suitable placement. See id. at 150. In this case, respondent was adjudicated in June 2019 and his rights were terminated in February 2020. He testified that his final class was set to begin the next month and there was no reason to doubt that testimony or that respondent would complete the class considering that he completed several other programs and provided verification to the caseworker. In the absence of any other supporting evidence, we do not think that an additional six to nine months of incarceration justified denying respondent his right to services and terminating his parental rights. The trial court also clearly erred by terminating respondent’s parental rights under MCL 712A.19b(3)(j). Mason explained that the question under that statutory ground is whether the children “would be harmed if they lived with respondent upon his release.” Id. at 165 (emphasis added). Here, there was no evidence suggesting that respondent harmed his firstborn child before he was incarcerated or that the children would be harmed if placed in respondent’s care after his release. III. CONCLUSION In sum, respondent was denied a meaningful opportunity to be reunified with his children. No evidence was presented about respondent’s parental fitness or his ability to care for the children upon his anticipated release. Instead, his termination was based solely on the fact of his incarceration. Per Mason, this was reversible error. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. /s/ Mark J. Cavanagh /s/ Kathleen Jansen /s/ Douglas B. Shapiro 7 Respondent had unsuccessfully requested that the children be placed with three different relatives: the maternal aunt, who was determined not to be an appropriate placement; a different relative of the mother who later retracted her request for placement of the children; and finally, a relative of respondent who inquired about the children but did not request placement. -5-
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