in Re Jones Minors ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re Jones, Minors. June 13, 2017
No. 335232
Ontonagon Circuit Court
Family Division
LC No. 13-000013-NA
Before: SWARTZLE, P.J., and SAAD and O’CONNELL, JJ.
PER CURIAM.
Previously, in February 2015, the trial court terminated the parental rights of respondent-
mother to he two daughters. In a prior appeal, this Court rejected respondent’s claims that (1)
her attorney provided ineffective assistance throughout the child protection proceedings, and (2)
petitioner failed to provide sufficient reunification services. In re Jones, unpublished opinion per
curiam of the Court of Appeals, issued October 27, 2015 (Docket No. 326252), slip op at 3-8.
This Court further held that respondent was precluded from challenging the trial court’s exercise
of jurisdiction over the children on the basis of respondent’s admissions. Id. at 3. However, this
Court held that the trial court erred by failing to consider explicitly in its best-interest
determination the option of continuing placement of the children with respondent’s aunt and
uncle. Id. at 6. Accordingly, this Court remanded the case for redetermination of the children’s
best interests. Id. at 8. Respondent appealed this Court’s decision to our Supreme Court, which
vacated this Court’s decision, and also vacated the trial court’s orders “adjudicating jurisdiction
over the children” and “terminating the respondent’s parental rights to the children.” In re Jones,
499 Mich. 862; 874 NW2d 129 (2016). The Supreme Court remanded the case “to the circuit
court for a new adjudication determination.” Id.
On remand, an adjudication trial was held and a jury found that a statutory basis for
jurisdiction over the children existed pursuant to MCL 712A.2(b). The trial court then conducted
a dispositional hearing on petitioner’s request to terminate respondent’s parental rights.
Following the hearing, the trial court issued an order terminating respondent’s parental rights to
the children pursuant to MCL 712A.19b(3)(b)(i), (c)(i), (g), and (j). Respondent again appeals as
of right, and we affirm.
Respondent argues on appeal that the trial court erred in exercising jurisdiction over the
children because, during the 2016 adjudication trial on remand from the Supreme Court,
petitioner presented evidence relating solely to respondent’s conduct and the children’s
circumstances preceding the September 2014 order removing the children from respondent’s
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care. Respondent contends that because no new allegations were made concerning her fitness as
a parent since September 2014, and no evidence was presented concerning her circumstances in
2016, petitioner failed to show that she was an unfit parent at the time of the adjudication trial.
She further argues that the trial court erred by denying her motion to reinstate supervised
visitation with the children after the case was remanded by the Supreme Court, which thereby
prevented her from providing the jury with an opportunity to “hear about the assessment of any
current parent/child bonds to be able to justify its decision in granting the Court jurisdiction” and
instead required the jury to rely on “a stale impression based on [respondent’s] actions in the
past.” Respondent also argues that the trial court improperly terminated her parental rights
without providing her with an opportunity to participate in additional reunification services.
Although the general issue of jurisdiction over the children was raised and decided
below, respondent did not argue below that it was improper for petitioner to rely solely on her
past conduct, without evidence of her current circumstances, to establish jurisdiction. Therefore,
that argument is unpreserved. Polkton Charter Twp v Pellegrom, 265 Mich. App. 88, 95; 693
NW2d 170 (2005). Likewise, respondent failed to preserve her argument that petitioner was
required to provide additional reunification efforts following the Supreme Court’s remand order.
This Court reviews a jury’s verdict regarding jurisdiction over the children to determine
if a preponderance of the evidence satisfied the statutory requirements of MCL 712A.2(b). In re
BZ, 264 Mich. App. 286, 295; 690 NW2d 505 (2004); In re S R, 229 Mich. App. 310, 314; 581
NW2d 291 (1998). “Generally, whether child protective proceedings complied with a
respondent’s substantive and procedural due process rights is a question of law that this Court
reviews de novo.” In re TK, 306 Mich. App. 698, 703; 859 NW2d 208 (2014). Unpreserved
claims of error, however, are reviewed for plain error affecting respondent’s substantial rights.
Id.
“In Michigan, child protective proceedings comprise two phases: the adjudicative phase
and the dispositional phase.” In re Sanders, 495 Mich. 394, 404; 852 NW2d 524 (2014).
“Generally, a court determines whether it can take jurisdiction over the child in the first place
during the adjudicative phase.” Id. Jurisdiction is established pursuant to MCL 712A.2(b). Id.
As relevant to the instant case, MCL 712A.2(b) provides that a trial court has jurisdiction over a
child less than 18 years of age under the following circumstances:
(1) Whose parent or other person legally responsible for the care and
maintenance of the juvenile, when able to do so, neglects or refuses to provide
proper or necessary support, education, medical, surgical, or other care necessary
for his or her health or morals, who is subject to a substantial risk of harm to his
or her mental well-being, who is abandoned by his or her parents, guardian, or
other custodian, or who is without proper custody or guardianship . . . . [or]
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(2) Whose home or environment, by reason of neglect, cruelty,
drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent
adult, or other custodian, is an unfit place for the juvenile to live in.
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The rules of evidence apply at an adjudication trial. MCR 3.972(C)(1); In re Sanders, 495 Mich.
at 405; In re AMAC, 269 Mich. App. at 536; 711 NW2d 426 (2006).
Respondent does not contend that the evidence of her conduct related to the filing of the
2014 removal petition was inadmissible. Instead, she argues that petitioner should not have been
permitted to rely on this evidence as the only measure of her parental fitness. She contends that,
considering the length of time the children had been out of her care, the evidence of her past
conduct was no longer relevant to determining her current fitness as a parent, and therefore,
petitioner should have been required to present evidence bearing on her fitness at the time of the
adjudication trial.
Respondent’s argument appears to be predicated on her belief that there is an unstated
limitation in the Supreme Court’s remand order in the case. And yet, nothing in the remand
order required the trial court to ignore the allegations or underlying evidence that led to the initial
filing of the petition and to which respondent offered pleas of admission, albeit through improper
procedure. Moreover, petitioner’s reliance on evidence related to and predating the September
2014 petition to remove the children is consistent with In re MU, 264 Mich. App. 270, 279; 690
NW2d 495 (2004), in which this Court held that the statute governing jurisdiction, MCL 712A.2,
“speaks in the present tense, and, therefore, the trial court must examine the child’s situation at
the time the petition was filed.” Under In re MU, petitioner appropriately relied on respondent’s
circumstances at the time the children were removed to evaluate respondent’s fitness as a parent
for purposes of adjudication. Because evidence of respondent’s circumstances in 2016 would
not be probative of the children’s situation at the time the removal petition was filed in
September 2014, that there may have been little or no evidence of respondent’s current
circumstances does not undermine the jury’s verdict. A preponderance of the evidence supports
a finding that, despite extensive efforts from petitioner, respondent either refused to participate in
services, or did not benefit from them. Moreover, respondent had the opportunity to offer her
own evidence that she had materially changed her behavior during the pendency of her prior
appeal, but she failed to do so.1
In sum, it was not improper for petitioner to rely on evidence of respondent’s
circumstances at the time of the September 2014 removal petition for purposes of adjudication,
and the jury’s decision that statutory grounds for jurisdiction existed is supported by a
preponderance of the evidence.
We also reject respondent’s argument that petitioner was required to provide her with
additional reunification services after the case was remanded by the Supreme Court. Respondent
contends that services were required because the case did not involve any aggravating
circumstances relieving petitioner of that responsibility. We disagree.
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In fact, evidence offered during the subsequent dispositional hearing showed that respondent
did not have a job and that her residence was filthy, with holes in the wall, marijuana plants
growing inside, and minimal food available.
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In general, petitioner must make reasonable efforts to reunify a child with his or her
family unless aggravating circumstances are present. MCL 712A.19a(2); In re Plump, 294 Mich
App 270, 272; 817 NW2d 119 (2011). Failure to provide such services may prevent the trial
court from having sufficient evidence to terminate parental rights. In re Mason, 486 Mich. 142,
166; 782 NW2d 747 (2010). Yet, even in the absence of statutory aggravating circumstances,
petitioner need not provide services to every family in every situation, “but the statute requires
the agency to justify the decision.” In re Plump, 294 Mich. App. at 272. See also MCL
712A.18f(1)(b). In particular, “[p]etitioner . . . is not required to provide reunification services
when termination of parental rights is the agency’s goal.” In re HRC, 286 Mich. App. 444, 463;
781 NW2d 105 (2009), citing In re Terry, 240 Mich. App. 14, 25 n 4; 610 NW2d 563 (2000). See
also In re LE, 278 Mich. App. 1, 21; 747 NW2d 883 (2008) (“[s]ervices need not be provided
where reunification is not intended”).
In an amended petition filed on remand, petitioner requested that the trial court exercise
jurisdiction over the children and terminate respondent’s parental rights. The trial court
authorized the petition. Because termination was the goal, petitioner was not required to offer
respondent additional reunification services, as long as it could justify its decision. In re LE, 278
Mich. App. at 21.
The case history justified petitioner’s decision to forgo additional reunification services.
Throughout the case, respondent had been offered extensive services, and either failed to
participate in them or failed to benefit from them. Moreover, after the September 2014 incident
that led to the children’s removal, respondent was offered the opportunity to continue with
counseling services, which she had previously attended only sporadically, but she declined that
opportunity and she had not completed any services since August 14, 2014. It is clear from the
earlier proceedings that prior attempts to rehabilitate respondent were unsuccessful, and equally
clear that there was no basis for believing that any additional services would be productive or
successful. In sum, additional services were not required, both due to petitioner’s goal of
termination and the fact that petitioner had already made reasonable efforts toward reunification
in this case, but respondent failed in her duty to participate in, or benefit from, the services
provided.
Respondent next argues that she should have been granted parenting time with the
children after the case was remanded by the Supreme Court, both because she was entitled to
show that she no longer posed a threat to the children’s safety and because a therapist’s
recommendation that the children would likely be harmed if visitation was reinstated was based
on “stale” information.
In general, unless parenting time would be harmful to the child, the parent shall have
parenting time no less than once every seven days. MCL 712A.18f(3)(e). MCR 3.977(D)
provides, however, that “[i]f a petition to terminate parental rights to a child is filed, the court
may suspend parenting time for a parent who is a subject of the petition.” Likewise, MCL
712A.19b(4) provides that “[i]f a petition to terminate parental rights to a child is filed, the court
may suspend parenting time for a parent who is a subject of the petition.” This Court has held
that “[t]he suspension of parenting time once a petition to terminate parental rights is filed
requires no finding of harm and is presumptively in the child’s best interest” because of the
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drastic measures a parent facing termination might be tempted to undertake, among other
reasons. In re Laster, 303 Mich. App. 485, 489; 845 NW2d 540 (2013).
In the instant case, because petitioner had requested termination of respondent’s parental
rights, the trial court was not required to make a finding of harm. The trial court did, however,
rely on letters submitted by the children’s foster parents and their therapist to decide that
resumption of parenting time before the adjudication hearing could traumatize the children, and
again ordered that visitation be suspended. The trial court also based its decision on
respondent’s admission that, if parenting time were to resume, there would be a little
“regression.” The court’s finding that the children would be traumatized if visitation was
reinstated is supported by the evidence presented and thus is not clearly erroneous. Also, while
respondent argues that the therapist’s and the foster parents’ correspondence was based on stale
information because respondent had not seen the children for some time, these documents were
based on the witnesses’ recent observations of the children, not the circumstances that existed in
2014. Thus, the information was not stale.
In addition, while respondent argues that the suspension of parenting time prevented the
jury from considering any recent parent/child bonds, she provides no legal support for her
position that it was appropriate for the jury to consider this in determining the existence of a
statutory basis for jurisdiction pursuant to MCL 712A.2(b). As explained previously, it was
appropriate for petitioner to rely on the circumstances that existed at the time the children were
removed in September 2014 to evaluate respondent’s fitness as a parent for purposes of
adjudication. In re MU, 264 Mich. App. at 279. Thus, respondent has not established that the trial
court erred by denying her motion to reinstate parenting time after the case was remanded by the
Supreme Court.
Finally, in a reply brief, respondent raises additional arguments regarding whether the
trial court erred by unduly relying on her past conduct to find that the statutory grounds for
termination were established by clear and convincing evidence. She also raises claims of
ineffective assistance of counsel. These issues are not properly before this Court. As explained
in Bronson Methodist Hosp v MI Assigned Claims Facility, 298 Mich. App. 192, 199; 826 NW2d
197 (2012):
Reply briefs must be limited to “rebuttal of the arguments in the appellee’s or
cross-appellee’s brief . . . .” MCR 7.212(G); see also Kinder Morgan Michigan v
City of Jackson, 277 Mich. App. 159, 174; 744 NW2d 184 (2007). “[R]aising an
issue for the first time in a reply brief is not sufficient to present the issue for
appeal.” Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich. App. 241, 252;
673 NW2d 805 (2003).
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Accordingly, we decline to consider the newly raised issues in respondent’s reply brief.
Affirmed.
/s/ Brock A. Swartzle
/s/ Henry William Saad
/s/ Peter D. O'Connell
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