Court Of Appeals Vacates Termination Order Over Missing Aggravated Circumstances Finding
In re Berryman/Hurd/Morgan/Morgan-Hurd, Minors; In re M.K. Berryman, Minor
Opinion Published: March 23, 2026 (Rick, P.J., and Yates and Mariani, JJ.)
COA Docket Nos. 374775, 374776
Wayne County Circuit Court - Family Division
Holding: The Court of Appeals vacated the order terminating Respondents’ parental rights because the trial court plainly erred by excusing reasonable efforts toward reunification without a proper aggravated circumstances finding. The case was remanded for DHHS to prepare case service plans and for the court to order reasonable reunification efforts unless a proper on-the-record aggravated-circumstances determination is later made. The court did not reach challenges to statutory grounds for termination or best interests considering the disposition.
Facts: In June 2023, 21‑month‑old MKB was shot by his six‑year‑old cousin, KM, while in Respondents’ care. Respondent‑Mother left MKB, KM, and two other children in the home with a 14‑year‑old babysitter while Respondent‑Father worked in the backyard. Shortly before leaving, Respondent‑Mother placed an unsecured, loaded handgun on a high living‑room shelf because the lockbox under her bed was broken.
Within 10 to 15 minutes, KM used a chair to reach the shelf, obtained the firearm, and shot the gun, striking MKB. The 21-month-old was taken to the hospital and survived but required reconstructive surgery to the left side of the nose, the cheek, and the shoulder.
At the time, the niece and two nephews, including KM, were residing with Respondents under a safety plan after their mother’s arrest. Respondent‑Mother’s other children, NSM, SLM, RMH, and RDH, were visiting a family friend in Florida when the shooting occurred.
DHHS initially petitioned for removal, jurisdiction, and termination, and the trial court authorized removal and supervised parenting time after the July 2023 preliminary hearing.
DHHS did not allege aggravated circumstances in its petition or mention any argument regarding aggravated circumstances at the preliminary hearing, yet the trial court’s written order stated reasonable efforts were not required due to aggravated circumstances. The order listed “improper supervision” and “unfit home” as aggravated circumstances.
After a two‑day bench trial in November 2023 and February 2024, the court found jurisdiction under MCL 712A.2(b)(1) and (2) and statutory grounds for termination under MCL 712A.19b(3)(b)(ii), (g), (j), and (k)(iv). Several months later, between June and December 2024, a multi‑day best‑interests hearing was held, after which the court terminated parental rights.
On appeal, Respondents argued termination was improper because they had no prior removals or petitions and the shooting was an accident. Respondent‑Mother also noted DHHS never provided a case service plan, and she independently pursued services. Conversely, DHHS asserted reasonable efforts were excused because the incident constituted aggravated circumstances.
Key Appellate Ruling:
Termination without reasonable efforts is permitted only in certain statutory circumstances, including a judicial determination of aggravated circumstances under MCL 712A.19a(2)(a) by clear and convincing evidence. Aggravated circumstances under MCL 712A.19a(2)(a) require satisfaction of both MCL 722.638(1)(a) and 722.638(2), and DHHS must request termination at initial disposition in its petition.
Under MCL 722.638(1)(a), a listed individual must have abused the child or a sibling, and that abuse must have included one of six outcomes specified in the statute, such as serious physical harm or life‑threatening injury. Even if serious physical harm occurred, it must have been included in abuse as defined by MCL 722.622(g), meaning nonaccidental physical injury, sexual abuse, sexual exploitation, or maltreatment by a listed individual.
The trial court failed to articulate any factual basis or clear‑and‑convincing finding of aggravated circumstances at the preliminary hearing and made no such finding in the termination order. The court’s preliminary order referenced “improper supervision” and “unfit home,” but these are not aggravated circumstances listed under MCL 722.638(1)(a), and the record did not show statutory “abuse” by a listed individual.
DHHS neither cited MCL 712A.19a(2)(a) nor MCL 722.638 in its petition. They also never argued aggravated circumstances at the preliminary hearing or any time thereafter. The record shows MKB’s injuries may meet “serious physical harm,” but there was no finding or evidentiary basis that the harm resulted from nonaccidental injury or maltreatment by Respondents as required to establish “abuse.”
The Court of Appeals held that the absence of a proper aggravated‑circumstances determination was plain error affecting substantial rights. Accordingly, the appellate court vacated and remanded with directions to provide reasonable efforts unless and until a proper finding is made.
The Court of Appeals further noted Respondent‑Mother’s later second-degree child abuse plea in October 2023 could not have supported the initial aggravated‑circumstances finding and is a distinct inquiry from the statutory aggravated‑circumstances analysis.
