In Re stanke/fortson Minors ( 2022 )

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UNPUBLISHED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 STANKE/FORTSON, Minors. October 27, 2022
No. 361207
Kalamazoo Circuit Court
Family Division
LC No. 2020-000216-NA
Before: SHAPIRO, P.J., and GADOLA and YATES, JJ.
PER CURIAM.
Respondent-father appeals as of right the order of the trial court terminating his parental
rights to his minor children under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication
continue to exist), (c)(ii) (other conditions exist), (g) (failure to provide proper care or custody),
and (j) (likelihood child will be harmed if returned to parent). We affirm.
I. FACTS
In 2020, respondents were living together with their two minor children, one a toddler and
one an infant, in the home of the paternal grandmother. From April through July, 2020, police
repeatedly were called to the home because of respondent-mother’s mental instability and alleged
domestic violence between respondents. On August 5, 2020, Child Protective Services (CPS)
workers met with respondents. According to the foster care caseworker, respondent-mother
appeared unable to follow the conversation and respondent-father was physically agitated and
verbally aggressive, demanding that CPS leave the home. A week later, CPS again met with
respondents with similar results. After the meeting, respondent-mother refused to participate in
the services offered by petitioner to address the safety of the children.
Petitioner, Department of Health and Human Services (DHHS), filed a petition requesting
that the trial court assume jurisdiction of the children and order respondents to participate in
services, including psychological evaluations, substance abuse assessment, anger management
assessment, parenting assessment, drug screening, therapy to address parenting and respondents’
relationship, and Early On assessments for the children. Petitioner did not seek removal of the
children at that time. At the conclusion of the preliminary hearing on the allegations of the petition,
the trial court made the children temporary wards of the court. The trial court permitted the
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children to remain in respondent-mother’s care conditioned upon her compliance with all DHHS
requested services, and ordered respondent-father to demonstrate paternity of the children.
Shortly after the preliminary hearing, both respondents tested positive for
methamphetamine. A second preliminary hearing was held, at the conclusion of which the trial
court removed the children from respondents’ care. Thereafter, an adjudication hearing was held,
during which respondent-father admitted certain allegations of the petition, including the
allegation that he tested positive for methamphetamine while caring for the children and that his
drug use influenced his ability to care for the children and placed them at substantial risk of harm.
The trial court accepted respondent-father’s plea and assumed jurisdiction of the children with
respect to respondent-father. After a trial, the trial court also assumed jurisdiction of the children
with respect to respondent-mother.
For the next approximately 15 months, petitioner offered respondents numerous services
to assist them in reunifying with their children. Despite being ordered by the trial court to comply
with the services offered, and despite respondent-father assuring the trial court that he would
comply with services and become able to care for the children, he failed to do so. During a review
hearing held before the trial court May 19, 2021, the foster care caseworker testified that the
barriers to reunifying the children with respondent-father included respondent-father’s substance
use and lack of parenting skills. Petitioner provided respondent-father with drug testing, but
respondent-father missed 33 of 41 drug tests during the reporting period. In the eight drug tests in
which he participated, respondent-father tested positive for amphetamine, methamphetamine, and
THC. Petitioner referred respondent-father for individual counseling and substance abuse
counseling, but respondent-father did not participate. Respondent-father attended parenting time
with the children, but sometimes became angry during visits and used profanity or left. At the
conclusion of the hearing, the trial court found that respondent-father had made no progress.
At the permanency planning hearing held before the trial court August 16, 2021, the foster
care caseworker testified that respondent-father had attended all but two parenting times, but
sometimes appeared to be under the influence of substances during visits. During parenting time
on August 3, 2021, respondent-father tested positive for methamphetamine. Of the six drug tests
administered to respondent-father by the foster care caseworker during the reporting period,
respondent-father tested positive for amphetamines and methamphetamines each time.
Respondent-father failed to participate in random drug testing, missing over 20 drug screens during
the reporting period. Petitioner referred respondent-father to parenting classes, but respondent-
father failed to enroll. Respondent-father was not participating in counseling. During the reporting
period, respondent-father had been charged with felony possession of methamphetamine and
ecstasy, and also charged with driving with a suspended license. At the conclusion of the hearing,
the trial court directed petitioner to initiate proceedings to terminate respondents’ parental rights.
The trial court found that petitioner made reasonable efforts to reunify the family but that
respondents failed to make progress.
At the review hearing held before the trial court November 8, 2021, the foster care
caseworker testified that respondent-father’s barriers to reunification with the children were his
substance abuse, lack of parenting skills, and lack of emotional stability. Respondent-father had
been provided a psychological evaluation and had been diagnosed with moderately severe
amphetamine use disorder and an unspecified personality disorder with antisocial features.
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Respondent-father did not participate in counseling to rectify the barriers, was inconsistent with
drug screening, and was inconsistent in attending parenting time during the reporting period.
At the review hearing held before the trial court February 1, 2022, the foster care
caseworker testified that respondent-father failed to attend some of the offered parenting visits,
and when attending other parenting visits was not engaged with the children. During the reporting
period, respondent-father tested positive for methamphetamine and amphetamines before
parenting time. Petitioner referred respondent-father to Prevention Works for parenting skills, but
respondent-father did not attend.
At the time of the termination hearing held February 25, 2022, respondent-father was
incarcerated in the Van Buren County Jail on charges of possession of methamphetamine. The
foster care caseworker testified that respondent-father did not work toward completion of the
parent agency treatment plan and did not comply with the services recommended. The
recommendations of his psychological evaluation included individualized counseling and
parenting skills classes, but respondent-father failed to attend. Respondent-father failed to
participate in drug screening, missing almost all random screens and testing positive 27 times,
primarily for methamphetamine. Respondent-father failed to participate in the recommended
substance abuse treatment. He attended some parenting times with the children, but was not
always engaged or appropriate with the children. Respondent-father testified, acknowledging that
he failed to attend counseling, failed to participate in drug screening, and continued to use
controlled substances. He testified that he currently was incarcerated for possession of
methamphetamine, but was being offered the opportunity to participate in services through drug
court to obtain sobriety.
At the conclusion of the termination hearing, the trial court terminated both respondents’
parental rights to the children, finding that neither parent had complied with the parent agency
treatment plan. With respect to respondent-father, the trial court found that clear and convincing
evidence supported termination of his parental rights to the children under MCL
712A.19b(3)(c)(i), (c)(ii), (g), and (j). The trial court further found that termination of both
respondents’ parental rights was in the children’s best interests under MCL 712A.19b(5).
Respondent-father now appeals.
II. DISCUSSION
Respondent-father contends that the trial court’s order terminating his parental rights to his
minor children must be reversed because petitioner failed to make reasonable efforts to reunify
him with his children. We disagree.
To preserve a challenge to the reasonableness of the petitioner’s efforts toward
reunification, the challenge generally must be raised at the time the services are offered, for
example, by objecting to the service plan. See In re Atchley, ___ Mich App ___, ___; ___ NW2d
___ (2022) (Docket Nos. 358502; 358503); slip op at 1, citing In re Frey, 297 Mich App 242, 247;
824 NW2d 569 (2012). A later challenge during the trial court proceedings may be adequate to
preserve the issue if the facts support a finding that offered services no longer were adequate. See
In re Atchley, ___ Mich App at ___; slip op at 1. In this case, respondent-father did not challenge
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before the trial court the reasonableness of petitioner’s efforts to reunify him with his minor
children. This issue therefore is unpreserved.
Generally, this Court reviews for clear error the trial court’s decision whether reasonable
reunification efforts were made. See In re Sanborn, 337 Mich App 252, 258; 976 NW2d 44 (2021).
Where, as here, the respondent’s challenge to the reasonableness of petitioner’s efforts is
unpreserved, this Court reviews the issue for plain error affecting the respondent’s substantial
rights, meaning an obvious error that affected the outcome of the proceedings. See In re Baham,
331 Mich App 737, 745; 954 NW2d 529 (2020). Reversal is not warranted unless the error
“seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” In re
Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019) (quotation marks and citation omitted).
Before seeking termination of parental rights, the DHHS generally has an affirmative duty
to make reasonable efforts to reunify a parent with the child. In re Hicks, 500 Mich 79, 85; 893
NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c), and MCL 712A.19a(2). Absent
aggravating circumstances under MCL 712A.19a(2), when a child is removed from a parent’s
custody, the petitioner is required to exert reasonable efforts to rectify the conditions that led to
the child’s removal by adopting a service plan outlining the steps that both the DHHS and the
parent will take to rectify the conditions that led to the court’s involvement and thereby achieve
reunification. In re Sanborn, 337 Mich App at 258-259. “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).
The petitioner, however, is not obligated to provide every possible service. See In re Terry,
240 Mich App 14, 27-28; 610 NW2d 563 (2000). Moreover, although the petitioner must expend
reasonable efforts to provide services aimed at reunifying the parent and the child, the respondent
parent has a “commensurate responsibility . . . to participate in the services that are offered,” In
re Atchley, ___ Mich App at ___; slip op at 2, quoting In re Frey, 297 Mich App at 248. The
parent also must demonstrate that he or she sufficiently benefitted from the services. In re Atchley,
___ Mich App at ___; slip op at 2.
In this case, the barriers to reunification were respondent-father’s substance use, emotional
instability, and lack of parenting skills. To address those barriers, petitioner provided respondent-
father with a psychological evaluation, drug testing, counseling, parenting classes, and parenting
time. Respondent-father failed to participate in and benefit from the services offered. He
participated in a psychological evaluation but did not follow up with services recommended as a
result of the evaluation, such as substance abuse treatment. He failed to participate in drug testing,
substance abuse counseling, or parenting classes. Although he participated in some parenting time
with the children, he sometimes tested positive for methamphetamine and other substances when
he arrived for parenting time. Respondent-father thus failed in his commensurate duty to
participate in and benefit from the offered services. See In re Atchley, ___ Mich App at ___; slip
op at 2. As a result, although petitioner offered respondent-father numerous services, at the time
of termination he had made no progress toward eliminating the barriers to reunification and had
created a new barrier by becoming incarcerated as a result of possession of methamphetamine.
On appeal, respondent-father argues that petitioner did not advise him of the option of
participating in Family Drug Treatment Court. Respondent-father does not explain whether he
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qualified for that program or whether the services offered would have differed from those offered
by petitioner. Respondent-father also argues on appeal that his caseworkers changed frequently
during the time that the children were in care. There is no indication in the record, however, that
the frequent changes prevented petitioner from providing services to respondent-father or
prevented him from participating in the services.
In sum, respondent-father raises no valid challenge to the reasonableness of the efforts of
the agency. Petitioner offered respondent-father numerous services aimed at removing the barriers
to his reunification with his children, but respondent-father declined to participate in the offered
services. The trial court therefore did not err by finding that petitioner made reasonable efforts to
reunify respondent-father with the children.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola
/s/ Christopher P. Yates
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