Michigan Supreme Court Finds DHHS Did Not Make Reasonable Efforts at Reunification

June 7, 2024 Speaker Law Firm

Ordered: June 7, 2024

Order No. 165711
Michigan Supreme Court

Andrea Muroto and Liisa Speaker of the Speaker Law Firm represented the Respondent-Mother

Holding: DHHS must make “[r]easonable efforts to reunify the child and family . . .,” MCL 712A.19a(2), and 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; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). When making those reasonable efforts, DHHS “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, citing MCL 712A.18f(3)(d).

Facts: The Respondent-Mother, Elizabeth Perez, who was born in Guatemala, had a child who was the product of rape and incest, OOCP. OOCP suffers from Ehlers-Danlos Syndrome, making him extremely susceptible to physical injury. Due to this condition, OOCP requires frequent medical condition. Both Perez and OOCP lived in a shelter in Arizona for two years before relocating to Kalamazoo, Michigan. The educational level of Perez was not so great due to her formal education ending in the ninth grade, not speaking English well, and speaking one of Guatemala’s indigenous languages. In 2018, OOCP had several injuries that lead him to seek emergency medical treatment. Due to the 2018 incidents, Children’s Protective Services (“CPS”) investigated Perez but did not find any evidence of abuse towards OOCP. Despite the lack of evidence, doctors still worried that Perez could not care for OOCP sufficiently. Because of this, the Department of Health and Human Services (“DHHS”) filed a petition, leading to the Kalamazoo Circuit Court taking jurisdiction over OOCP, placing him in foster care.

Perez did not contest DHHS’s allegations that she could not provide for OOCP, however, but the Circuit Court ordered DHHS to make reasonable efforts to help Perez and OOCP reunify. For two years, between 2018 and 2020, Perez made great progress in learning more parenting skills, such as more disciplinary tactics, Perez learned how to meet OOCP’s medical needs, and Perez developed a better relationship with her child OOCP. Yet, in November of 2020, DHHS recommended that Perez’s parental rights be terminated. In 2021, the Circuit Court terminated Perez’ termination rights under MCL 712A.19b(3)(c)(i), (c)(ii), and (j). Additionally, the Circuit Court held that termination was warranted under MCL 712A.19b(3)(c)(i), and (j) because it reasoned that Perez could not provide OOCP with medical care and there was a risk of physical discipline towards OOCP.

Perez appealed the Circuit Court’s ruling to the Michigan Court of Appeals, which affirmed the Circuit Court’s ruling. Perez appealed to the Michigan Supreme Court, which, in lieu of granting Perez’s application for leave to appeal, held oral argument on her application and remanded the case to the Court of Appeals to “review and address the trial court’s decision finding statutory grounds to terminate [Perez’s] parental rights under MCL 712A.19b(3)(c)(i), (c)(ii), and (j).” In Re OO Claudio-Perez ___ Mich ___; ___ NW2d ___ (2024).

Key Appellate Rulings

DHHS must make “[r]easonable efforts to reunify the child and family . . .,” MCL 712A.19a(2), and DHHS “has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights.” In re Hicks, 500 Mich at 85, citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2).

Welch, J. Concurring Opinion

In addition to her concurrence with the Court’s Order, Welch, J., wrote separately to shed light on why she believed the Circuit Court clearly erred by finding statutory grounds for parental termination under MCL 712A.19b(3)(c)(i), (c)(ii), and (j), and that the DHHS failed make reasonable efforts to reunify Perez and OOCP.

Why The Circuit Court Erred To Find Statutory Grounds For Termination

Regarding MCL 712A.19b(3)(c)(i), “[t]he conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age,” Welch, J., responded that the Circuit Court erred because “[w]hen DHHS commenced adjudication, Perez had little to no knowledge regarding OOCP’s medical conditions and needs. It was undisputed at the time of the termination hearings that Perez had learned a significant amount about OOCP’s medical needs and improved in her ability to meet OOCP’s medical needs. Accordingly, the trial court clearly erred by determining that the conditions that led to adjudication…continue to exist and will not be rectified within a reasonable time.” In Re OO Claudio-Perez ___ Mich ___; ___ NW2d ___ (2024).

Regarding MCL 712A.19b(3)(j), “a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if the child is returned to the home of the parent,” Welch, J., responded that the Circuit Court erred because the record was “void of any instance of physical abuse by mother since OOCP was removed from her care in April of 2018.” In Re OO Claudio-Perez ___ Mich ___; ___ NW2d ___ (2024).

Regarding MCL 712A.19b(3)(c)(ii), “receiv[ing] recommendations to rectify [certain] conditions” and “the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given 8 a reasonable opportunity to rectify the conditions . . .,” Welch, J., responded, “it is undisputed that Perez did what DHHS told her to do.” Therefore, the Circuit Court clearly erred finding this as a statutory basis to terminate Perez’s parental rights. In Re OO Claudio-Perez ___ Mich ___; ___ NW2d ___ (2024).

Why The DHHS Did Not Make Reasonable Efforts To Reunify Perez and OOCP

As Welch, J., expressed, “MCL 712A.12a(2) impose[s]a duty on the DHHS to make reasonable efforts at reunification.” This duty necessarily includes “telling parents what to do to eliminate the obstacles to reunification.” From this, the Court will not adopt a rule where “parents must do things “that nobody asked them to do in order to regain custody of their children” because such a rule has no basis in statute. In Re OO Claudio-Perez ___ Mich ___; ___ NW2d ___ (2024).

Bolden, J. Concurring Opinion

In addition to her concurrence in the Order, Bolden, J., wrote separately to discuss whether the plain error standard of review applied when Petitioner conceded the inadequacy of its reunification efforts, and that Respondent did not object that the plain-error standard applied.

Given the fact that Respondent-Mother did not preserve this issue for appeal by objecting in the courts below, according to Bolden, J., “it is unclear…what kind of objection would have been appropriately raised in the trial court to preserve this issue for appellate review.”

According to People v Carines, 460 Mich 750; 597 NW2d 130(1999), the purpose of the plain-error review is because “contemporaneous objections” in trial courts provides the trial court “an opportunity to correct the error.” Here, however, no objection was needed because the issue that would have been preserved was “already raised and developed” throughout the litigation.