In re Sanborn

• Decision Date: 13 May 2021
• Docket Number: s. 354915,354916
• Parties: IN RE S. J. SANBORN, Minor.
• Court: Court of Appeal of Michigan — District of US

337 Mich.App. 252

976 N.W.2d 44

IN RE S. J. SANBORN, Minor.

Nos. 354915

354916

Court of Appeals of Michigan.

Submitted April 8, 2021, at Grand Rapids.

Decided May 13, 2021, 9:05 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kyle B. Butler, Prosecuting Attorney, and Barbara Tsaturova, Assistant Prosecuting Attorney, for petitioner.

Lindsey M. Dubis for Erlita A. Schneider.

Leo F. Madarang for Samuel C. Sanborn

Before: Murray, C.J., and Markey and Letica, JJ.

Per Curiam.

In these consolidated appeals,¹ respondents appeal as of right the trial court's order terminating their parental rights to the minor child under MCL 712A.19b(3)(c)(ii ) (failure to rectify other conditions) and (j) (reasonable likelihood that child will be harmed if returned to parent). We affirm.

I. MOTHER'S APPEAL

A. REASONABLE EFFORTS

Mother first argues that the trial court erred by failing to order reasonable efforts before the initial termination hearing in 2019. We review for clear error a trial court's decision regarding reasonable efforts. In re Fried , 266 Mich. App. 535, 542-543, 702 N.W.2d 192 (2005). However, unpreserved issues are reviewed for "plain error affecting substantial rights." In re Utrera , 281 Mich. App. 1, 8, 761 N.W.2d 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 N.W.2d 412 (2011) (quotation marks and citations 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, 761 N.W.2d 253.

Generally, "the [Department of Health and Human Services (DHHS)] has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks , 500 Mich. 79, 85, 893 N.W.2d 637 (2017), citing MCL 712A.18f(3)(b) and (c) and MCL 712A.19a(2). "In general, when a child is removed from the parents’ custody, the petitioner is required to make reasonable efforts to rectify the conditions that caused the child's removal by adopting a service plan." In re Fried , 266 Mich. App. at 542, 702 N.W.2d 192, citing MCL 712A.18f(1), (2), and (4). "[T]he 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. This general duty exists "to reunite the parent and children unless certain aggravating circumstances exist." In re Moss , 301 Mich. App. 76, 90-91, 836 N.W.2d 182 (2013). "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 Rippy, Minor , 330 Mich. App. 350, 355, 948 N.W.2d 131 (2019), citing In re Mason , 486 Mich. 142, 152, 782 N.W.2d 747 (2010).² Furthermore, MCL 712A.19a(2) provides, in pertinent part:

The court shall conduct a permanency planning hearing within 30 days after there is a judicial determination that reasonable efforts to reunite the child and family are not required. Reasonable efforts to reunify the child and family must be made in all cases except if any of the following apply:

* * *

(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 that termination of parental rights.

The DHHS's initial petition sought removal of the child from mother's care, but the petition did not seek termination. On the basis of the allegations contained in the initial petition, the trial court ordered the child removed from mother's care. Mother does not contest that removal. However, the trial court did not authorize the initial petition at the first May 2019 hearing because it wanted to wait until respondents had appointed counsel. Consequently, the trial court ordered reasonable efforts to reunify the family at that hearing. It was not until after the first hearing that the DHHS filed its first amended petition seeking termination. The termination petition contained allegations that parental rights were terminated to one or more siblings of the child " ‘due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights.’ " (Quoting MCL 712a.19b(3)(i ).) Thereafter, the trial court took testimony at the second hearing in May 2019 and concluded that probable cause existed that one or more of the allegations contained in the termination petition were true. It further concluded that reasonable efforts to reunify the family were not required because of the previous termination and respondents’ apparent failure to rectify the conditions that led to that termination.

Reasonable efforts are likewise not required when a parent has his or her parental rights involuntarily terminated to a sibling of the child at issue and the parent has failed to rectify the conditions that led to that earlier termination of parental rights. See MCL 712A.19a(2)(c). Mother's argument in this regard essentially focuses on the fact that the trial court later determined that there was not clear and convincing evidence to terminate respondents’ parental rights after the trial court heard testimony during the July 2019 termination hearing. However, the evidence presented up to the July 2019 hearing established by a preponderance of the evidence that mother's parental rights were terminated to the child's sibling and that mother had failed to rectify the conditions that led to that termination. Under a less strenuous burden of proof, the trial court did not err by denying reasonable efforts at the outset. Then, when the burden of proof became clear and convincing evidence to terminate parental rights, the trial court concluded that there was not clear and convincing evidence and ordered that reasonable efforts to reunify the child and family be made.

Stated differently, the trial court operated with the evidence available to it at the time it made its initial reasonable-efforts finding. The DHHS alleged in its first amended petition, under MCL 712A.19b(3)(i), that mother's parental rights to the other child were terminated because of serious and chronic neglect or physical or sexual abuse and that mother failed to rectify those conditions that led to that termination. Following the steps outlined in MCR 3.977(E), the trial court (1) concluded that the amended petition contained a request for termination and (2) found by a preponderance of the evidence that one or more of the grounds for assumption of jurisdiction over the child had been established. The evidence introduced to the trial court at the time of the first three hearings established by a preponderance of the evidence that mother's parental rights were involuntarily terminated with respect to a sibling of the child and that the conditions that existed to warrant the termination still existed. "Pursuant to MCL 712A.19a(2)(c), the prior involuntary termination of parental rights to a child's sibling is a circumstance under which reasonable efforts to reunite the child and family need not be made."

In re Smith , 291 Mich. App. 621, 623, 805 N.W.2d 234 (2011).

As the case progressed to the initial termination hearing, the burden of proof rose from a preponderance of the evidence to clear and convincing evidence. See MCR 3.977(E)(2) and (3). It was at the July 2019 hearing that the trial court determined that the DHHS had not met its burden to prove by clear and convincing evidence that a statutory ground for termination existed under MCL 712A.19b(3)(i). In other words, the trial court concluded that there was not sufficient evidence to prove by clear and convincing evidence that mother's parental rights were terminated to the other child on the basis of serious and chronic neglect or physical or sexual abuse. Consequently, there was no longer a basis to deny reasonable efforts under MCL 712A.19a(2)(c) because there was no evidence presented to establish by clear and convincing evidence the existence of a statutory ground under MCL 712A.19b(3)(i).

The trial court cannot be faulted for making its initial finding on the basis of a less-stringent burden of proof. The DHHS's subsequent failure to prove by clear and convincing evidence a statutory ground for termination does not invalidate the trial court's initial determination or otherwise make that initial determination erroneous. After the trial court concluded that the DHHS failed to meet its burden, the trial court ordered the DHHS to initiate a case service plan and offer reasonable efforts to reunify the family. Accordingly, the trial court did not commit clear error, and mother has failed to establish any plain error affecting her substantial rights. See In re Utrera , 281 Mich. App. at 9, 761 N.W.2d 253 ; In re BZ , 264 Mich. App. 286, 296-297, 690 N.W.2d 505 (2004).

Mother next challenges the trial court's findings that reasonable efforts were made after the July 2019 initial termination hearing leading up to the August 2020 termination hearing. Her challenge in this regard is two fold: (1) that the DHHS did not offer reasonable efforts to accommodate her intellectual disabilities under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. , and (2) notwithstanding the lack of accommodations under the ADA, the DHHS's efforts to reunify the family were not sufficient. We review unpreserved claims for plain error affecting substantial rights. See In re Utrera , 281 Mich. App. at 9, 761 N.W.2d 253.³

In addition to the DHHS's affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights, In re Hicks , 500 Mich. at 85-86, 893 N.W.2d 637, the DHHS also has ...