DHHS Sufficiently Made ‘Some Efforts’ To Avoid Removal Of Children | Speaker Law
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DHHS Sufficiently Made ‘Some Efforts’ To Avoid Removal Of Children

Posted on Wednesday, April 27, 2022

The trial court in this child-protective proceeding correctly placed the mother’s children under its jurisdiction because “some efforts” were made by the Department of Health and Human Services (DHHS) to prevent removal of the children, the Michigan Court of Appeals has ruled.

Child Protective Services (CPS) initiated the case of In re Wiseman/Gibson, Minors (Docket No. 357464) after it was notified the respondent-mother, her parents, her boyfriend and three of her five children were sleeping in an SUV parked in a hotel parking lot. The respondent had recently moved to Michigan from Wisconsin and had been staying in the hotel with her family until they could no longer pay for a room. At the time, the respondent’s two other children were living with their father in Muskegon. CPS determined the living conditions were inadequate and removed the children from the respondent’s care.

The DHHS then filed various removal petitions in the Livingston County Circuit Court. At an adjudication bench trial, the respondent’s attorney argued the DHHS had “hastily removed” the children without offering the respondent any services or making any efforts to prevent removal. However, before the trial court issued its decision, the respondent and the DHHS reached an agreement whereby the permanency planning goal was changed from termination to reunification. In exchange, the respondent waived any claim that reasonable efforts had not been made to prevent removal. The trial court concluded the bench trial.

On appeal, the respondent argued the DHHS did not make reasonable efforts to prevent removal.

The Court of Appeals disagreed, finding the respondent did not present “a clear and cogent argument” to disregard the waiver agreement that she had reached with the DHHS.

“There is one final point that we [want to] make,” the Court of Appeals emphasized. “The caseworker … testified that before the decision to remove the children was made, the caseworker informed [the respondent] about available shelters. Thus, some efforts were made by the DHHS to avoid removal when confronted with the homeless family.”

Judges Mark J. Cavanagh, Jane E. Markey and Deborah A. Servitto were on the panel that issued the 5-page unpublished opinion.

Sufficient Efforts

On appeal, the respondent argued, among other things, that while poverty was the root cause of her difficulty to properly care for her children, the DHHS offered no financial, housing or other type of referral resources to prevent removal of the children.

Addressing this argument, the Court of Appeals first pointed out the respondent did not timely appeal the trial court’s decision. “Under MCR 3.993(A)(1), one of the types of orders appealable to this Court by right is an ‘order removing a child from a parent’s care and custody.’ There was no timely claim of appeal of the removal order. And [the respondent] never filed an application for leave to appeal. Instead, [the respondent] waited until an adjudication order was entered before filing an appeal and challenging the removal order. We thus question whether we even have jurisdiction to entertain [the respondent’s] arguments challenging removal of the children.”

Next, the Court of Appeals noted that, even assuming the children should not have been removed, the trial court’s adjudication order should not be “undermined.” According to the appeals court, releasing the children to the respondent and not ordering removal “would not have stopped the protective proceedings from moving forward.”

Furthermore, “at this stage of the proceedings, ‘removal’ has essentially become a moot issue,” the Court of Appeals observed. “With the adjudication complete, the dispositional phase of the proceedings began, and the DHHS is under a duty to make reasonable efforts at reunification. … Moreover, the dispositional review hearings that now take place must entail ‘court evaluation of the continued need and appropriateness for the child to be in foster care.’ MCR 3.975(A). Thus, the children could potentially be returned to [the respondent’s] care.”

The Court of Appeals continued by emphasizing that the DHHS’s obligation to make reasonable efforts to prevent removal must be “consistent with the circumstances” and, when making this determination, the child’s “health and safety must be of paramount concern to the court” under MCR 3.965(C)(4). “This was not a case in which the children were living in a ‘home’ where poverty-driven neglect was alleged,” the appeals court said. “Rather, the children were living in a vehicle and had been doing so for three days. A DHHS caseworker testified that, ‘[o]n scene,’ she ‘had reached out to family members on the other side of the state in Muskegon’ in regard to possible relative placement, asked [the respondent] ‘about other relatives,’ and was informed … that she did not have any plan.”

In addition, the Court of Appeals pointed out the caseworker testified that the respondent was given information about available shelters, thereby demonstrating that the DHHS made “some efforts” to avoid removal. “The caseworker acknowledged that she did not provide [the respondent] with other housing resources, but we are doubtful that doing so would have resulted in housing being immediately available such that removal could have been entirely avoided under the circumstances,” the appeals court said.

Meanwhile, the respondent further argued that she could not legally waive her right to have the DHHS make reasonable efforts to prevent removal because “parents have a fundamental constitutional right to make decisions regarding the care, custody and control of their children.” The Court of Appeals primarily addressed this argument in a footnote to the opinion and said: “The agreement between [the respondent] and the DHHS is indeed an oddity that this panel has never previously confronted. Interestingly, if the agreement is not honored as advanced by respondent-mother, it would seem to also allow the DHHS to return to its original position that termination be the permanency planning goal. Although it is unnecessary to reach the issue, we find the agreement troubling. Whether the DHHS seeks termination of parental rights at the initial dispositional hearing or instead sets a goal of reunification should be determined solely on the basis of a child’s best interests, not on the basis of the DHHS’s apparent attempt to avoid its general obligation to make reasonable efforts to prevent removal.”

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