Opinion
No. 352091
08-27-2020
In re RITTERSDORF, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Montcalm Circuit Court Family Division
LC No. 2017-000799-NA Before: SHAPIRO, P.J., and SERVITTO and LETICA, JJ. PER CURIAM.
Respondent-mother appeals an order terminating her parental rights to the minor children, MR and HR, under MCL 712A.19b(3)(c)(i), (g) and (j). We reverse and remand this case for further proceedings.
I. FACTS & PROCEDURAL HISTORY
This case initially arose in 2017 as a result of respondent's substance abuse and criminal activity. Specifically, on August 30, 2017, respondent was arrested for shoplifting while with MR, who was nearly five years old at the time. The next day, respondent gave birth to HR, who tested positive for multiple illegal substances. On September 1, 2017, the Department of Health and Human Services (the department) filed a removal petition, and the children were placed in foster care. A few days later respondent was released on bond and her three older children were released to her. At a pretrial hearing, the trial court assumed jurisdiction over the children after respondent admitted that both she and HR tested positive for cocaine at his birth. When the dispositional hearing was held in October 2017 respondent was incarcerated in jail facing two charges of retail fraud. The trial court adopted a case service plan that required respondent to complete an inpatient substance abuse treatment program, complete a psychological evaluation and follow any recommendations, complete a parenting program and show benefit, participate in family counseling, and submit to random drug screens.
Respondent-mother also has two older children who were included in the initial petition. Those children were placed in a guardianship with their paternal grandfather and respondent's parental rights to them were not terminated. Respondent-father's parental rights to all four children were terminated in November 2018.
Respondent was transferred to prison in January 2018. Because of her incarceration, she was unable to comply with many aspects of the case service plan. Nonetheless, she participated in all relevant services available to her while incarcerated. As we previously summarized:
[Respondent] testified that she participated in AA/NA and other programs while in the Kent County Jail. She stated that once in prison she participated in programs there, including NA/AA, National Lifers Association, Healing and Trauma, House of Healing, Moving On, Par[en]ting Inside Out, Grief and Loss, and Advanced Substance Abuse Treatment. [In re Rittersdorf Minors (Rittersdorf I), unpublished per curiam opinion of the Court of Appeals, issued July 18, 2019 (Docket No. 346702), p 2.]
After a permanency planning hearing in July 2018, the trial court authorized the filing of a supplemental petition to terminate respondent's parental rights. At the November 2018 termination hearing,
the only testimony presented by petitioner was that of respondent. She admitted that she had had a drug addiction issue, specifically with respect to opiates and cocaine. She additionally admitted to committing a number of retail frauds in order to support her drug habit. . . . She stated that she intended to remain sober once paroled, continuing with NA and AA. Her additional testimony largely centered on her success in [the programs she completed while incarcerated], her desire to continue her progress and get her life straightened out, and to be reunited with her children. [Rittersdorf I, unpub op at 2.]
The trial court found clear and convincing evidence to terminate respondent's parental rights to MR and HR under MCL 712A.19b(3)(c)(i) (failure to rectify conditions of adjudication); (g) (failure to provide proper care and custody); and (j) (reasonable likelihood that child will be harmed if returned to parent), and that termination of respondent's parental rights was in the children's best interests.
On February 12, 2019, respondent was released on parole from incarceration with the Michigan Department of Corrections (MDOC). She subsequently moved the trial court to reinstate her parenting time, and the trial court denied the motion. Respondent then appealed the termination of her parental rights. While her appeal was pending before this Court, respondent committed a parole violation on May 25, 2019, by associating with Timothy Hannah, who was a parolee and felon. On July 16, 2019, respondent completed a urine drug test, which had a positive result for methamphetamine. Respondent was incarcerated for this positive drug test for three days, although it did not count as a parole violation. Respondent has consistently maintained that this was a false positive drug test and requested that the sample be retested by a lab and offered to pay for the testing. However, that course of action was precluded by a MDOC policy. Respondent's parole officer testified that respondent was tested weekly for six months and, but for the July 16, 2019 test, all tests were negative.
Per the conditions of her parole, respondent completed a substance abuse program in June 2019. The substance abuse educator testified that additional services to the program are required because "you're not gonna be fixed with eight weeks of therapy." Respondent also met with a therapist on four occasions while on parole. The therapist testified that respondent could benefit from additional time in therapy.
On July 18, 2019, we issued an opinion reversing the trial court's termination of mother's parental rights. While the trial court acknowledged that respondent made effort and progress in prison, the court determined that, "because it cannot ensure that [the] progress will extend once she's released, her rights must be terminated." Rittersdorf I, unpub op at 4. We found that reasoning inconsistent with In re Mason, 486 Mich 142, 160; 782 NW2d 747 (2010), which held, in part, that incarceration cannot be sole the basis for termination of parental rights. We concluded that respondent was denied a meaningful opportunity to be reunified with her children and that termination of her rights was premature. We stated, "Instead of terminating parental rights, the trial court should have continued the wardship and provided continuing services to respondent following her release from prison." Rittersdorf I, unpub op at 4. We remanded for further proceedings consistent with our opinion.
On remand, the trial court issued an order reinstating respondent's parental rights on July 31, 2019, and scheduled a reviewing hearing for August 13, 2019. On August 7, 2019, police and parole officers conducted a home check at respondent's residence. They asked respondent if Hannah was at her home and she said he was not. The officers searched respondent's residence and found Hannah located under an access door in respondent's closet. Therefore, by the time of the August 13, 2019, review hearing, respondent was in jail facing a charge of harboring a felon. The trial court reinstated the case service plan, which now required respondent to complete a psychological evaluation and follow all recommendations, complete a substance abuse assessment and follow all recommendations, participate in random drug screens, participate in a parenting program and show benefit, comply with the conditions of her parole, and maintain housing and transportation.
On September 5, 2019, respondent pleaded guilty to harboring a felon. She later received a sentence of six months in jail and 18 months' probation for this conviction, with time imposed for the parole violation to be served concurrently. The next review hearing was held on October 22, 2019. The trial court determined that respondent had not complied with the case service plan and ordered the department to file a termination petition. The court stated, "I'm not going to order a case service plan at this time. She can participate in what services are available through the county jail." The termination hearing was held on December 11, 2019. Respondent's release date was in April 2020. She testified and requested that the trial court allow her additional time to participate in and demonstrate benefit of the case service plan. After hearing testimony from multiple other witnesses, the trial court again terminated respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j), and found that termination was in the children's best interests. This appeal followed.
II. ANALYSIS
Respondent argues that the trial court failed to follow our remand directive by terminating her parental rights before affording her an opportunity to participate in and benefit from a case service plan. We agree and also conclude that the trial court clearly erred by finding that the department made reasonable efforts to reunify the family.
"On remand, a trial court is required to comply with a directive from an appellate court." Duncan v Michigan, 300 Mich App 176, 188; 832 NW2d 761 (2013). We review de novo as a question of law whether the trial court followed our ruling on remand. Augustine v Allstate Ins Co, 292 Mich App 408, 424; 807 NW2d 77 (2011). We review for clear error a trial court's decision regarding reasonable efforts. In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005).
In Rittersdorf I, we were clear that respondent was to be given a meaningful opportunity to engage in court-ordered services. As we noted in our prior opinion, "[r]easonable efforts to reunify the child and family must be made in all cases except those involving aggravated circumstances not present in this case." In re Mason, 486 Mich at 152 (quotation marks and citation omitted; emphasis in original). The department must create a case service plan outlining the steps that it and the parent will take to rectify the conditions that led to intervention and achieve reunification. In re Hicks/Brown, 500 Mich 79, 85-86; 893 NW2d 637 (2017). The case service plan must include a schedule of services "to be provided to the parent, child, and if the child is to be placed in foster care, the foster parent, to facilitate the child's return to his or her home or to facilitate the child's permanent placement." MCL 712A.18f(3)(d). Termination of parental rights is premature when reasonable efforts toward reunification were not made. See In re Mason, 486 Mich at 152.
Despite our prior opinion, the evidence and testimony presented at the termination hearing demonstrated that the department did not provide respondent with any renewed services in an effort to reunify her with the children. The trial court reinstated the case service plan at the August 13, 2019 review hearing, but the caseworker testified that she did not make any referrals for services because respondent was incarcerated and the department did not have services that were available to respondent while she was in jail. There was no evidence, however, that the caseworker attempted to coordinate services with the Montcalm County jail or update the case service plan. See In re Mason, 486 Mich at 156-157 (indicating that reasonable efforts were not made when the department did not make efforts to facilitate access to services in prison or update the service plan). We also note that the caseworker only met with respondent once during these proceedings in June 2019 for approximately 15 minutes.
The trial court and the caseworker relied on the fact that respondent participated in services during her term of incarceration from September 2017 to February 2019. The caseworker also indicated that respondent's conditions of parole were sufficient to meet the requirements of the case service plan. However, the previous services in which respondent participated were not offered or coordinated by the department and did not meet all aspects of the case service plan. The bottom line is that the department did not fulfill its statutory duty to facilitate services for respondent. Further, the caseworker's testimony that respondent would not benefit from additional services was contradicted by the testimony of respondent's substance abuse educator and therapist and was inconsistent with our remand directive that respondent receive additional services.
The trial court also determined that termination of respondent's parental rights was warranted because she continued to engage in criminal activity. Contrary to the trial court's ruling, however, the record demonstrates that respondent has made substantial progress on the issues that led to the children's removal. Respondent admitted at the first termination hearing that she had a substance abuse problem and that she committed retail fraud to support her addiction. As of the second termination hearing, however, respondent had achieved nearly 26 months of sobriety. While on parole respondent was drug tested weekly for sixth months with only one positive test, which she vigorously disputed. The only criminal activity that had occurred since the last termination hearing was allowing her boyfriend, a felon, to be at her home. Because there was a warrant out on the boyfriend, she was charged with harboring a felon. While respondent's actions relating to Hannah were foolish, they did not warrant termination when she was set to be released from incarceration in about four months.
The trial court also stressed that respondent's children needed finality. We agree. However, except in rare cases, finality cannot be achieved without giving a non-abusive parent a meaningful opportunity to participate and benefit from services that they have a statutory right to receive.
III. CONCLUSION
Contrary to our remand directive, the trial court terminated respondent's parental rights before she was afforded an opportunity to participate in services and demonstrate compliance with the case service plan. The trial court also erred by finding that reasonable efforts were made to reunify the family.
Respondent also challenges on appeal the trial court's findings with regard to the statutory grounds and best interests. However, we need not address those findings in light of our conclusion that the department failed to offer reasonable services.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Douglas B. Shapiro
/s/ Deborah A. Servitto
/s/ Anica Letica