Appeals Court: DHHS Made Reasonable Reunification Efforts During COVID-19 | Speaker Law
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Appeals Court: DHHS Made Reasonable Reunification Efforts During COVID-19

Posted on Wednesday, May 25, 2022

The Department of Health and Human Services (DHHS) made reasonable efforts to reunify the respondent-parents with their child despite the challenges presented by the COVID-19 pandemic, the Michigan Court of Appeals has ruled in a published opinion.

The Court of Appeals decision in In re A. Atchley, Minor (Docket Nos. 358502 and 358503) affirmed the termination of the respondents’ parental rights by the Eaton County Circuit Court.

In Atchley, the Department of Health and Human Services (the DHHS) filed a petition seeking removal of the respondents’ child from their care. The respondents entered a plea of admission to testing positive for amphetamines and methamphetamines. The respondents also pleaded no-contest to several other allegations in the petition. The trial court entered an order taking jurisdiction over the child. A case services plan was developed that required the respondents to address their issues with substance abuse, domestic violence and emotional instability. However, the respondents “only minimally complied with the services offered” and “did not demonstrate any progress toward reunification.” In March 2021, the DHHS filed a supplemental petition seeking termination of the respondents’ parental rights. Following a hearing, the trial court entered an order terminating the respondents’ parental rights under MCL 712A.19b(3)(c)(i) and MCL 712A.19b(3)(j).

The respondents appealed. They argued, among other things, that the DHHS did not make reasonable efforts at reunification given the unique circumstances presented by the COVID-19 pandemic.

The Court of Appeals rejected the respondents’ arguments. Judges Mark T. Boonstra, Michael J. Kelly and Brock A. Swartzle were on the panel that issued the decision.

Reasonable Reunification Efforts

On appeal, the respondents first argued the DHHS did not make reasonable reunification efforts. Specifically, the respondent-father alleged that a number of services were provided virtually because of the COVID-19 pandemic but he did not have consistent phone access with Internet capabilities. Meanwhile, the respondent-mother asserted that additional time was needed to comply with the case service plan given the turmoil caused by the COVID-19 pandemic.

The Court of Appeals first addressed the respondent-father’s argument that he should have been provided with a phone and gas cards so that he could better participate in the services offered by the DHHS. “There is no evidence respondent-father needed transportation assistance,” the appeals court said. “Indeed, at the termination hearing respondent-father agreed he had ‘adequate transportation throughout’ this case. And, although issues with his phone persisted, [the DHHS] took steps to reunify him with the child despite those issues. Specifically, the caseworker testified that, although respondent-father frequently complained about his telephone, he never asked for assistance in obtaining a phone. Instead, he told her that he would find a working phone on his own. She indicated that she nevertheless communicated frequently with him both in person and via text messages. Further, the record reflects that respondent-father’s phone issues were not so significant as to prevent him from frequently participating in court proceedings using Zoom, a video conferencing app. Moreover, although petitioner did not provide respondent-father with assistance in ensuring that he had continual access to a working phone with an internet connection, it nevertheless accounted for the phone issues when providing services.”

The Court of Appeals then turned to the respondent-mother’s contention that, because of the COVID-19 pandemic, “reasonable efforts” meant “something more extensive than what might normally be required.” According to the appeals court, the respondent-mother claimed the “standard amount of time” was inadequate to provide her with a “true opportunity” for reunification. “However, she does not identify what additional services should have been provided or detail how the services provided throughout the case were inadequate. Moreover, although she contends that more time is needed in her case, she has not provided any evidence indicating that the trial court erred by finding that she would be unable to rectify the conditions leading to adjudication within a reasonable time considering the age of her child.”

Throughout the proceedings, the respondent-mother “tested positive, missed drug screens, or refused to submit to the screens,” the Court of Appeals pointed out. “Although her caseworker noted that the COVID-19 pandemic caused a gap in drug screens between March 2020 and May 2020, even after the screenings resumed, respondent-mother continued to test positive, refused screens, and did not show up for scheduled screens. Communication with respondent-mother was both in-person and via text message. Based on the record before this Court and, even in light of the pandemic, we discern no clear error in the trial court’s finding that petitioner made reasonable efforts to reunify respondent-mother with the child.”

Statutory Grounds For Termination

The respondents further asserted the trial court erred by finding statutory grounds to terminate their parental rights.

Regarding the respondent-father, the Court of Appeals pointed out the conditions that led to adjudication included domestic violence and substance abuse. “Neither condition had been rectified at the time the termination hearing was held. … The trial court, therefore, did not clearly err by finding that respondent-father’s substance abuse issues had not been rectified. … Respondent-father made no progress toward rectifying his issues with domestic violence. Instead, respondent-father never followed through on petitioner’s referral for a domestic-violence assessment and treatment. And, at the time of the termination hearing, he continued to have an unresolved bench warrant for his arrest in relation to a domestic-violence incident that had occurred in March 2020. In light of this record, the trial court did not clearly err by finding that termination of respondent-father’s parental rights was warranted under MCL 712A.19b(3)(c)(i).”

As for the respondent-mother, the Court of Appeals said the conditions that led to adjudication included substance abuse and emotional stability. “Respondent-mother admitted at the termination hearing that she had consistently used methamphetamines throughout the case. …On appeal, she contends that she needed additional time to get sober because of the difficulties inherent in living through a global pandemic. But the record reflects that despite being provided with services that specifically accounted for the pandemic – including mobile drug screening and telehealth visits – respondent-mother had made virtually no progress toward reunification. Given that no progress was made after more than a year of services, the trial court did not clearly err by finding that respondent-mother’s substance abuse issues had not been rectified and that there was no reasonable likelihood that they would be rectified within a reasonable time considering the child’s age.”

Moreover, the trial court did not clearly err by finding that the respondent-mother had not rectified her emotional stability issues, the Court of Appeals said. “Indeed, the record reflects that despite selecting her own service provider, respondent-mother had yet to engage in any counseling services. On this record, therefore, the trial court did not clearly err by finding termination of respondent-mother’s parental rights was appropriate under MCL 712A.19b(3)(c)(i).”

Best Interests Of Child

The respondent-mother also argued the trial court erred by finding that termination of her parental rights was in the child’s best interests because 1) she had a strong bond with the child and 2) the child was placed with a relative.

“According to respondent-mother, the trial court should have afforded her more time to work on her issues so she could maintain this bond with the child,” the Court of Appeals observed. “The trial court, however, considered respondent-mother’s strong bond with the child, but found that the bond was ‘waning very quickly.’ The testimony showed that the child had been in foster care for a significant proportion of her life, and she was at the point where she did not want to speak about respondents. As a result, the court found that the bond did not weigh for or against termination in this case. That finding is not clearly erroneous.”

Further, “although the child was placed with a relative, the court considered that fact as well, and concluded that, given respondent-mother’s consistent lack of progress toward reunification –including her ongoing and unrectified substance-abuse issues – termination was nevertheless in the child’s best interests,” the Court of Appeals stated. “The child was doing better in foster care and her need for stability and permanency weighed in favor of termination. The trial court, therefore, did not clearly err by finding that termination of respondent-mother’s parental rights was in the child’s best interests.”

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