DHHS Didn’t Provide ‘Necessary Services’ For Reunification: Termination Of Parental Rights Reversed

The trial court in this termination of parental rights case wrongly held that the Department of Health and Human Services (DHHS) made reasonable efforts to reunify the respondent-father, who was in federal prison, with his child, the Michigan Court of Appeals has ruled.

At the request of the DHHS, the trial court in In re K. A. M. Ogletree, Minor (Docket No. 376781) terminated the respondent-father’s parental rights for not complying with the case service plan (CSP). At the time, the respondent was in federal prison and the child’s mother was in a psychiatric hospital. The respondent appealed the termination, arguing the trial court erroneously found the DHHS had made reasonable efforts toward reunification.

The Court of Appeals reversed and remanded the case, finding the trial court “committed clear error.”

The record “demonstrates that the DHHS failed to provide or even facilitate the services necessary for reunification,” the Court of Appeals wrote. “Consequently, the trial court clearly erred by terminating respondent’s parental rights for failure to comply with the service plan when the DHHS failed to provide the necessary services for reunification.”

Judge Daniel S. Korobkin, Judge Christopher M. Murray and Judge Allie Greenleaf Maldonado were on the panel that issued the unpublished opinion.

Background

The respondent’s minor child was taken into protective custody in August 2023 after the child’s mother was admitted to a psychiatric hospital. At the time, the respondent was in federal prison and his potential release date was sometime in 2027.

Following the recommendation of the DHHS, the Calhoun County Circuit Court ordered the respondent to 1) comply with, and benefit from, the Case Service Plan (CSP); 2) receive substance abuse treatment; 3) receive psychological treatment; 4) attend parenting skills classes; 5) attend training for special needs children; and 6) if released, obtain housing and employment.

Throughout the proceedings, the DHHS tried to verify whether the respondent had accessed services through the federal prison by mailing him monthly packets and attempting to contact the prison. The respondent was on a waitlist for parenting and other classes, and was also on a waitlist to be a full participant in a drug rehabilitation program, which would allow him to access to additional services while in prison. At the respondent’s termination hearing, he testified that he had completed six months of the nine-month drug rehabilitation program.

The DHHS subsequently filed a supplemental petition requesting the termination of the respondent’s parental rights because of his lack of compliance and benefit from the services that were offered. At the hearing, the trial court held the respondent failed to complete various psychological, substance abuse and parenting services. Although the respondent’s release date was unclear, the trial court found that even if he were released from prison, it would take more than a year from the time of the termination hearing to demonstrate that he could provide an appropriate environment for the child.

The trial court ruled that statutory grounds existed to terminate the respondent’s rights under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to exist), MCL 712A.19b(3)(c)(ii) (failure to rectify other conditions) and MCL 712A.19b(3)(j) (child will be harmed if returned to parent). The trial court also found that termination was in the child’s best interests and ultimately issued an order terminating the respondent’s parental rights.

The respondent appealed.

‘No Record’ Of Services

On appeal, the respondent argued the trial court erroneously terminated his parental rights because the DHHS did not make reasonable efforts toward reunification.

The Court of Appeals agreed.

“Absent the exceptions in MCL 712A.19a(2), none of which are relevant here, ‘the [DHHS] has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights,’” the Court of Appeals wrote, citing the Michigan Supreme Court’s decision in In re Hicks/Brown, 500 Mich 79 (2017). “When a child is placed outside the home, the DHHS has a statutory duty to create and update a CSP. A CSP must include a ‘[s]chedule of services to be provided to the parent … to facilitate the child’s return to his or her home ….’ … (emphasis added). As part of its duty to make reasonable efforts, ‘the [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. …’ (emphasis added).”

The Court of Appeals also cited In re Mason, 486 Mich 142 (2010), where the Michigan Supreme Court found the DHHS “abandoned its statutory duties to involve [the incarcerated respondent] in the reunification process and to provide services necessary for him to be reunified with his children …. Thus, in In re Mason, it was clear error to terminate the respondent’s parental rights ‘in part because of his failure to comply with the service plan’ when the DHHS failed to provide services and evaluate the respondent.”

In the present case, “there is no record evidence that the DHHS even attempted to facilitate or coordinate services with the federal prison,” the Court of Appeals observed. “First, though no Michigan case requires the DHHS to provide services directly to respondent, failure to provide direct services is evidence that the DHHS did not make reasonable efforts. … At no point in the record did the DHHS provide services directly to respondent. In fact, a DHHS foster-care specialist affirmed that she did not send respondent workbooks, supplements, or packets regarding parenting skills because of her belief that respondent was not eligible for additional services until he was a full participant in the drug-related program offered by the prison.”

Further, “the DHHS did not outline what services would be ‘provided’ to respondent … or what steps the DHHS would take to facilitate reunification in either the Parent Agency Treatment Plans (PATPs) or CSPs …,” the Court of Appeals explained. “In its PATPs, the DHHS at first listed no actions that it would take to facilitate respondent’s substance-abuse treatment, parenting-skills classes, or psychological services. Later, the DHHS stated that it would verify what services were available to respondent and in what services respondent participated. In its CSPs, the DHHS claimed that it took reasonable efforts to reunify the family through ‘[s]ubstance abuse services, safety planning, psychological services, and parenting services’ and that respondent was offered random drug screens, counseling services, parent education, housing resources, psychological evaluation, and parenting time, among other services. Though it may be true that the child’s mother received such services, nothing in the record shows that respondent received the extent of the services claimed by the DHHS. Instead, respondent was waitlisted by the federal prison staff for full participation in the drug program that would allow him access to additional services provided by the federal prison. The DHHS may not focus its efforts ‘exclusively on the custodial mother and essentially ignore[] the [incarcerated] father.’”

Overall, the DHHS “did not ‘provide services necessary for [respondent] to be reunified with his child[],’” the Court of Appeals said. “To the DHHS’s credit, at respondent’s initial facility, it appeared that the DHHS would not be able to obtain information on services until respondent signed a communication request, which respondent did not return. At that point, the DHHS had done everything within its power to communicate with respondent’s initial facility. However, respondent then moved to his current facility in January 2024. There, the DHHS contacted respondent’s prison case manager by phone, and the prison case manager spoke freely about respondent. However, even in those phone contacts, the DHHS showed no effort to coordinate services. … Instead, the DHHS called only to verify what respondent had been able to accomplish.”

Similar to In re Mason, the record in the present case is “’largely undeveloped’ because of the DHHS’s failure to provide respondent with the services necessary to achieve reunification,” the Court of Appeals stated. “It therefore remains unclear how respondent was expected to achieve the steps necessary for reunification while waitlisted for federal prison services and when provided no additional services by the DHHS. … Nor does it appear that the DHHS adjusted respondent’s requirements or its own actions to facilitate reunification.”

Therefore, “because the DHHS did not provide the respondent with the services necessary for reunification, it did not fulfill its statutory duty,” the Court of Appeals held. As a result, the trial court “committed clear error by concluding that the DHHS made reasonable efforts to reunify respondent and his child, and terminating respondent’s parental rights for failure to comply with the service plan when the DHHS failed to provide the necessary services for reunification.”

Accordingly, “we reverse the order terminating respondent’s parental rights to the child and remand to the trial court for proceedings …,” the Court of Appeals concluded.