A trial court’s order authorizing removal of the respondent’s minor child must be vacated, the Michigan Court of Appeals has ruled, because the Department of Health and Human Services did not make reasonable reunification efforts and the trial court erroneously authorized the removal petition.

The respondent in In re Shukait-Pierce, Minor (Docket No. 356512) was incarcerated and the father of SSP. The Livingston County Circuit Court subsequently authorized the removal of SSP from the respondent’s care. The trial court found the child was without proper care or custody under MCL 712A.2(b) and the Department of Health and Human Services (DHHS) had made reasonable efforts to prevent the child’s removal.

The Court of Appeals reversed and remanded.

The DHHS failed to make reasonable efforts to prevent the child’s removal, the Court of Appeals said. According to the court, the DHHS’s “single attempt” to prevent removal “neither constituted reasonable efforts nor comported with due process.”

Further, the trial court erred by finding there was probable cause that the allegations in the DHHS removal petition fell within MCL 712A.2(b), the Court of Appeals said. “The trial court did not explicitly make a finding that no service or arrangement except removal was reasonably available to adequately safeguard [the child], rather it noted that respondent was incarcerated and there were no proper care and custody arrangements.”

Judges Cynthia Diane Stephens, Stephen L. Borrello and Elizabeth L. Gleicher were on the panel that issued the unpublished opinion.

Background

In January 2020, the DHHS filed a petition for the removal of SSP from the home of her mother. The petition noted that the respondent was SSP’s putative father and that he resided in a correctional facility. The trial court ordered that SSP be taken into protective custody and placed with the DHHS.

The trial court subsequently conducted a bench trial with respect to the respondent. The referee recommended the proceedings against the respondent be dismissed on the basis that, when the initial petition was filed, the respondent was not considered a “parent” of SSP because he was a putative father. The referee noted the respondent only became a parent on January 30, 2021 – one day before the amended petition was filed and he only had one day to make arrangements for SSP’s care. The trial court dismissed the petition against the respondent and released SSP to the respondent. However, because the respondent was incarcerated, SSP remained with her foster parents.

On January 27, 2021, the foster care worker sent the respondent an update letter regarding SSP. The letter included power of attorney documents that were received from the respondent’s attorney, which needed to be signed and notarized by the respondent. The foster care worker indicated that she did not receive a response from the respondent.

On February 10, 2021, the DHHS filed a supplemental petition against the respondent, requesting the removal of SSP. The petition alleged the respondent was in prison and could not provide for SSP.

At the respondent’s preliminary hearing, the foster care worker testified the respondent was incarcerated, that his earliest release date was in 2018 and that his maximum release date was in 2044. The foster care worker further testified the respondent was incarcerated when SSP was born and that SSP had never actually been in the respondent’s physical care and custody. The foster care worker also testified that SSP could not be returned to her mother or placed with the respondent, and that she had been placed in a licensed foster home.

The respondent testified that he received the update letter from the foster care worker with the power of attorney document. He testified that he signed it, had it notarized and placed it in the mail on the day of the hearing (February 16, 2021) because of the President’s Day holiday.

The referee indicated there was probable cause for the trial court to find that SSP was without proper care and custody. She also found that DHHS had made reasonable efforts to prevent removal. The trial court adopted the referee’s findings and entered an order authorizing the removal petition.

The respondent appealed.

No Reasonable Efforts

On appeal, the respondent first argued that the DHHS failed to use reasonable efforts to prevent removal of SSP.

“We agree,” the Court of Appeals said, noting that “reasonable efforts” is not defined by statute or court rule. “At a minimum, absent aggravated circumstances, reasonable efforts require pursuing, involving and considering respondent parents’ plans for the care and custody of their children.”

Here, the record did not support the trial court’s finding that the DHHS made reasonable efforts to prevent the removal of SSP, the Court of Appeals explained. “On January 25, 2021, the [trial] court dismissed jurisdiction as to respondent and SSP was ordered released to respondent. Sixteen days later, on February 10, 2021, DHHS petitioned the court for removal of SSP from respondent. There was only one communication from DHHS during that time: a January 27, 2021 letter from [the foster care worker] to respondent that contained power of attorney documents. Assuming the January 27, 2021 letter was mailed the same day, DHHS allotted approximately 10 days for mail delivery to the Michigan Department of Corrections (MDOC), for the MDOC to distribute that mail to respondent, for respondent to sign and have the documents notarized, and for mail delivery back to DHHS. This amount of time, even without considering the challenges of incarceration and the coronavirus pandemic, was unreasonable.”

Moreover, at the February 16, 2021 preliminary hearing, the respondent testified that he had only received the letter the prior Friday (February 12, 2021), the Court of Appeals observed. The respondent further indicated that he could not mail the signed and notarized documents until the day of the hearing because Monday, February 15, 2021, was President’s Day and the mail did not run.

“This single attempt after the supplemental petition neither constituted reasonable efforts nor comported with due process,” the Court of Appeals stated.

Removal Not Supported

Next, the respondent claimed the trial court wrongly found probable cause that the allegations in the removal petition fell within MCL 712A.2(b).

“We agree,” the Court of Appeals stated. “A trial court ‘may authorize the filing of the petition upon a finding of probable cause that one or more of the allegations are true and could support the trial court’s exercise of jurisdiction under MCL 712A.2(b).’”

The Court of Appeals further explained that a trial court may order a child to be placed in foster care only if it finds all the conditions in MCL 712A.13a(9)(b), subdivisions (a) through (e), including that “[n]o provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from risk as described in subdivision (a).”

According to the Court of Appeals, because MCL 712A.13a(9) requires factual findings for a list of enumerated conditions, “the trial court was required to ‘make a record of its findings as to each and every factor sufficient for this Court to conduct a meaningful review.’ … The trial court did not explicitly make a finding that no service or arrangement except removal was reasonably available to adequately safeguard SSP, rather it noted that respondent was incarcerated and there were no proper care and custody arrangements.”

Meanwhile, although there was no power of attorney in effect on February 10, 2021, there were several attempts by the respondent to provide SSP proper care and custody, the Court of Appeals observed. “DHHS had received four communications between February 1st and February 5th from counsel representing GD and AD who were family friends selected by respondent to care for SSP during respondent’s incarceration. Based on these communications, DHHS forwarded respondent power of attorney documents and was awaiting a response. At the preliminary hearing, respondent testified confirming his intent to create a power of attorney, and his agreement to either a guardianship with GD and AD, or to planning with the current foster parents. We find this evidence negates a finding under MCL 712A.2(b)(1) that respondent neglected or refused to provide proper care or custody.”

Therefore, “we reverse the order authorizing the petition for removal and remand for further proceedings to address the power of attorney issue,” the Court of Appeals held.

No Due Process Violation

Lastly, the respondent asserted that his due process rights were violated because the foster care agency “thwarted” his attempt to provide for SSP’s care and custody.

“We disagree,” the Court of Appeals said. “The agency did not create the conditions of respondent’s incarceration. Further, there is no evidence that the agency thwarted respondent’s attempt to execute a power of attorney. [The foster care worker] testified that she sent power of attorney documents to respondent on January 27, 2021. Although respondent testified that he did not receive that letter until February 12, there is no evidence that the agency was the cause of that delay.”

Based on the foregoing, “[w]e reverse the trial court’s order of removal and remand for further proceedings consistent with this opinion, including the vetting of any persons who may be nominated by respondent as a guardian for SSP,” the Court of Appeals concluded. “On remand, respondent shall be appointed new counsel and afforded time to execute the power of attorney or to nominate a guardian for SSP’s care and custody.”