in Re K D Daniels Minor ( 2019 )

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UNPUBLISHED
In re K. D. DANIELS, Minor. October 8, 2019
No. 348129
Washtenaw Circuit Court
Family Division
LC No. 17-000109-NA
Before: REDFORD, P.J., and JANSEN and LETICA, JJ.
PER CURIAM.
Respondent-mother appeals as of right the trial court’s order terminating her parental
rights to the minor child, KD, under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue
to exist) and (j) (reasonable likelihood that child will be harmed if returned to parent). We
affirm.
Respondent does not challenge the statutory grounds for termination or that termination
was in KD’s best interests. Accordingly, we may assume that the trial court did not clearly err in
finding that the statutory grounds existed. In re JS & SM, 231 Mich App 92, 98-99; 585 NW2d
326 (1998), overruled in part on other grounds by In re Trejo Minors, 462 Mich 341, 353; 612
NW2d 407 (2000). We have reviewed the record and find no clear error regarding the statutory
grounds for termination. See In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144
(2012). We also find no clear error in the court’s findings regarding KD’s best interests. See In
re Trejo Minors, 462 Mich at 356-357.
Respondent’s sole argument on appeal is that the trial court erred when it terminated her
parental rights because the Department of Health and Human Services (DHHS) did not use
reasonable efforts to reunify her with KD. We disagree.
“In general, issues that are raised, addressed, and decided by the trial court are preserved
for appeal.” In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). With respect to a
challenge concerning the adequacy of reunification efforts, the respondent must raise the issue
when the trial court adopts the service plan or soon thereafter. In re Frey, 297 Mich App 242,
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247; 824 NW2d 569 (2012), citing In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000).1
Respondent did not raise a reasonable efforts argument until this appeal. Therefore, the issue is
unpreserved. We review unpreserved issues 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.
Subject to limited exceptions that are inapplicable to the case at hand, Michigan law
imposes an affirmative duty on the DHHS to “make reasonable efforts to reunify a family before
seeking termination of parental rights.” In re Hicks, 500 Mich 79, 85 & n 4; 893 NW2d 637
(2017). “The adequacy of the petitioner’s efforts to provide services may bear on whether there
is sufficient evidence to terminate a parent’s rights.” In re Rood, 483 Mich 73, 89; 763 NW2d
587 (2009) (opinion by CORRIGAN, J.). The trial court “is not required to terminate parental
rights if the State has not provided to the family of the child . . . such services as the State deems
necessary for the safe return of the child to the child’s home.” Id. at 105 (quotation marks and
citation omitted). However, although the DHHS “has a responsibility to expend reasonable
efforts to provide services to secure reunification, there exists a commensurate responsibility on
the part of respondents to participate in the services that are offered.” Frey, 297 Mich App at
248.
Respondent argues that reunification efforts in this case were unreasonable because she
was not immediately placed in an inpatient substance abuse rehabilitation program. It is her
position that anything short of an immediate order concerning drug rehabilitation was not
reasonable because her addiction impaired her ability to comply with other aspects of her
treatment plan. We disagree. Respondent fails to acknowledge that she was ordered into
substance abuse programming at a very early juncture in the case, and she repeatedly chose not
to attend substance abuse treatments. Respondent pleaded responsible to the allegations in the
petition on November 28, 2017, and by January 16, 2018, the trial court adopted DHHS
recommendations and ordered respondent to begin substance abuse counseling and drug
screening. Between this order and the next hearing in March 2018, she failed to engage in any
services. Respondent then agreed to go to inpatient drug treatment, and the court explicitly
ordered her to do so. However, when respondent’s caseworker offered to take her to an intake
1
The Michigan Supreme Court has expressed skepticism regarding the categorical timing
element of the preservation rule derived from Terry, noting that deficiencies in a service plan
may not be readily apparent at the time the plan is adopted. In re Hicks, 500 Mich 79, 88-89 & n
9; 893 NW2d 637 (2017). Despite noting its concerns, however, the Court did not decide
whether the timing of the objection affects preservation. Accordingly, In re Hicks did not
displace the preservation standard articulated in In re Frey, 297 Mich App at 247. The
distinction is not material to this case in any event, as respondent did not raise this issue before
the trial court.
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session directly after a parenting-time visit, she declined. Respondent continued to avoid
treatment and never attended an intake session for inpatient drug treatment, nor did she attend
substance abuse therapy or submit to regular drug screens. At the termination hearing,
respondent acknowledged that it was her choice not to engage in her treatment plan, despite over
a year of attempts by the DHHS and the trial court to provide her with a comprehensive
treatment plan.
The trial court did not err when it found that the DHHS made reasonable efforts to
reunify the family. The DHHS recommended substance abuse treatment early in the
proceedings, the trial court explicitly ordered respondent to enroll in inpatient drug treatment
almost one year before termination, and respondent agreed but failed to do so. The DHHS
recommended a multitude of services and tried to assist respondent in reaching and maintaining
sobriety. It follows that the DHHS’s treatment plan involved reasonable efforts to reunify
respondent with KD. See In re Plump, 294 Mich App 270, 272-273; 817 NW2d 119 (2011)
(affirming trial court’s finding of reasonable efforts where the respondent’s continued
relationship with an abusive partner was a known barrier to reunification and the petitioner failed
to benefit from offered services, including counseling for victims of domestic abuse).
Respondent simply failed to engage. Respondent failed to even attend an intake session at a
rehabilitation center, and she missed over 100 drug screens. Respondent cannot claim that the
DHHS failed to provide her with a functional treatment plan when in fact it was her complete
failure to engage that led to no progress.2 In other words, her failure to engage negates her
argument on this point. See Frey, 297 Mich App at 248. The DHHS provided respondent with
reasonable efforts to reunify her with KD, and the trial court did not err when it found that
reasonable efforts had been made.
Affirmed.
/s/ James Robert Redford
/s/ Kathleen Jansen
/s/ Anica Letica
2
We acknowledge that respondent participated in a substance abuse program after she was
incarcerated at the end of September 2018. However, this only occurred after respondent had
disregarded substance abuse treatment referrals and orders for months, and the caseworker
opined that respondent would require additional treatment because the in-jail program was not
sufficiently thorough. The caseworker also expressed concern that respondent would not
continue treatment upon her release given her history of noncompliance. At any rate,
respondent’s belated participation does not diminish the adequacy of the DHHS’s earlier efforts.
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