If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re CLOSE/JONES, Minors. September 15, 2022
No. 357938
Wayne Circuit Court
Family Division
LC No. 2019-000615-NA
In re D. A. JONES, Minor. No. 358902
Wayne Circuit Court
Family Division
LC No. 2019-000615-NA
Before: CAVANAGH, P.J., and GARRETT and YATES, JJ.
PER CURIAM.
In Docket No. 357938, respondent appeals as of right the trial court’s orders terminating
her parental rights to DAC, MBJ, MMJ, RDJ, and JMJ pursuant to MCL 712A.19b(3)(g) and (j).
In Docket No. 358902, respondent appeals as of right a separate order terminating her parental
rights to DAJ pursuant to MCL 712A.19b(3)(a)(ii), (g), and (j). For the reasons discussed below,
we affirm.
I. FACTUAL BACKGROUND
This case arises from the initial removal of seven children from respondent’s care in 2019.
During the proceedings, respondent gave birth to two additional children, who were also removed
from her care. These appeals involve the six younger children.1
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The three oldest children, DMM, SMM, and SDM, were initially removed and taken into
protective care, but respondent’s parental rights to those children were not terminated. Those
children were placed with their father and are not at issue in this appeal. The father of RDJ and
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The children were initially taken into care after a domestic-violence incident. Responding
to the scene, law-enforcement officers found stolen, loaded firearms accessible to the children. At
the first preliminary hearing, Jasmine Byers of the Department of Health and Human Services
(DHHS) testified that respondent had a history of using cocaine, marijuana, and alcohol. Byers
testified that more than one of respondent’s children were born positive for cocaine. Byers testified
that, at a family-team meeting shortly after removal, respondent admitted that she had relapsed
“on substances including alcohol and [m]arijuana[,]” and she admitted that she could not provide
appropriate care for the children. However, during that same family-team meeting, respondent
refused to participate in inpatient substance-abuse treatment. Respondent “refused and reported
she’s not willing to do in-patient treatment at this time.” Testifying about respondent’s history,
Byers noted that she “did in-patient treatment on three different occasions. One being last year.”
Authorizing the petition, the referee ordered respondent to participate in individual therapy, attend
parenting classes, undergo a psychological examination, obtain a legal source of income, maintain
contact with the caseworker, and maintain safe and suitable housing. For reasons not entirely
clear, the referee did not order substance-abuse services. A parent-agency treatment plan dated
April 25, 2019, reflects that mother agreed to refrain from drug and alcohol abuse and participate
in random drug and alcohol screens. At the dispositional review hearing on June 25, 2019,
respondent did not object to the treatment plan, but she requested a housing referral and a parenting
partner. The trial court granted her requests.
But it became evident that respondent’s substance abuse was a primary issue in the
proceedings. In September 2019, the trial court ordered that substance-abuse treatment and drug
screening be added to respondent’s treatment plan, noting that it was unclear why those services
were not included in earlier orders. Despite referrals to several treatment programs and an order
to submit drug screens, respondent failed to fully comply with either substance-abuse treatment or
screening. During the lower-court proceedings, respondent missed 53 of 56 drug screens. She
continued to use cocaine, marijuana, and alcohol—even during her subsequent pregnancies; and
both of those children were born with medical issues because of respondent’s drug use during
pregnancy. Respondent admitted to using cocaine as late as March 2021. Respondent also failed
to obtain housing, was not fully compliant with her mental-health treatment, and did not
consistently visit all of the children even though petitioner provided her with bus passes and some
visits were to be conducted via Zoom.
In May 2021, a termination hearing was held on a supplemental petition seeking
termination of respondent’s parental rights to DAC, MBJ, MMJ, RDJ, and JMJ. The trial court
terminated respondent’s parental rights to those children. In June 2021, a combined adjudication
and termination hearing was held on an original petition seeking removal and termination of
DAC was initially involved in the proceedings, but his parental rights to RDJ and DAC were not
terminated and those children were returned to his care. The father of MBJ and MMJ had his
parental rights terminated. The fathers of JMJ and DAJ were not identified, and the trial court
terminated the parental rights of those unknown fathers. None of the fathers is a party to these
appeals.
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respondent’s parental rights to DAJ. The trial court found grounds to exercise jurisdiction over
DAJ and also terminated respondent’s parental rights to him. These appeals follow.
II. LEGAL ANALYSIS
In both appeals, respondent argues that petitioner failed to make reasonable efforts to
reunify the family by failing to rectify her substance abuse before implementing other aspects of
her treatment plan. Respondent also argues that petitioner did not present clear and convincing
evidence to support the statutory grounds for termination. We disagree with both claims.
A. REASONABLE EFFORTS
Respondent argues that petitioner did not make reasonable efforts to reunify the family.
We disagree. Generally, in order to preserve an issue for appeal, it must be raised in the trial court.
Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020). Respondent did
not argue below that petitioner failed to make reasonable efforts toward reunification. Indeed, she
never asserted in the trial court that the services offered were unreasonable or insufficient.
Therefore, this issue is unpreserved. In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000)
(explaining that “[t]he time for asserting the need for accommodation in services is when the court
adopts a service plan”). Accordingly, we will review this unpreserved issue only for plain error
affecting substantial rights. In re Beers, 325 Mich App 653, 677; 926 NW2d 832 (2018). “To
avoid forfeiture under the plain-error rule, the proponent must establish that a clear or obvious
error occurred and that the error affected substantial rights.” Id.
Generally, during the dispositional phase, DHHS “has an affirmative duty to make
reasonable efforts to reunify a family before seeking termination of parental rights.” In re Hicks,
500 Mich 79, 85; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c) and
MCL 712A.19a(2). “As part of these reasonable efforts, the Department 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.” Hicks, 500 Mich at 85-86. The case-service plan must
include, in relevant part, 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); see also In re Mason, 486
Mich 142, 156; 782 NW2d 747 (2010). The parent should be given a reasonable time to make
changes and benefit from services before termination of parental rights. See Mason, 486 Mich
at 159. The trial court should regularly update the plan to account for the parent’s progress and
developing needs. Id. at 156. “While [petitioner] has a responsibility to expend reasonable efforts
to provide services to secure reunification, there exists a commensurate responsibility on the part
of respondents to participate in the services that are offered.” In re Frey, 297 Mich App 242, 248;
824 NW2d 569 (2012). To prove a claim of lack of reasonable efforts, respondent must show that
she would have fared better had petitioner offered other services. See In re Fried, 266 Mich App
535, 543; 702 NW2d 192 (2005). In this case, respondent argues that petitioner should have
required her to participate in inpatient drug treatment “the very minute she made admissions in her
case.” Respondent’s argument lacks merit.
Respondent agreed to a treatment plan after the oldest children initially came into care.
The treatment plan required her to participate in individual therapy and parenting classes, undergo
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a psychological examination, obtain a legal source of income, maintain contact with the
caseworker, and maintain safe and suitable housing. To be sure, respondent was not initially
ordered to participate in substance-abuse treatment or screening. It is not entirely clear why. But
the trial court recognized the situation and ordered respondent to participate in these services in
September 2019, following the first dispositional-review hearing, and respondent was eventually
referred to substance-abuse treatment numerous times.
Even after she was ordered to inpatient substance-abuse treatment, respondent did not
complete or benefit from those services for a considerable time. The first referral occurred in
July 2019, but was terminated in November 2019. She attended other outpatient programs in
November 2019 and March 2020—but she discharged herself after a couple of days on both
occasions. She also checked into the Genesis House on December 31, 2020. She discharged
herself the next day. Moreover, despite the treatment offered, respondent was not compliant with
random drug screens and continued to test positive for cocaine. Respondent told the foster-care
worker, Ellie Lauer, as recently as March 2021, that she continued to use cocaine and alcohol in
order to cope. During the proceedings, respondent gave birth to JMJ and DAJ, who both tested
positive for cocaine at birth. On March 15, 2021, the trial court ordered respondent to participate
in inpatient treatment. Respondent participated in another inpatient substance-abuse treatment
program at Positive Images, and then began a second portion of the treatment during which she
would be assisted in finding suitable housing. However, respondent discharged herself during the
second portion of treatment against the advice of staff. At the beginning of her court-ordered stay
at Positive Images, respondent submitted a positive screen. Later still, she checked herself into a
different treatment center on May 4, 2021, but failed to provide any information regarding the
treatment she was receiving. Lauer did not believe that respondent was receiving the treatment
she needed or being drug-screened at that facility. Lauer only knew that the facility offered weekly
group and individual therapy. In short, the evidence reflected that petitioner offered numerous
substance-abuse services to respondent, as well as drug screening, but respondent failed to fully
participate in those services. As a result, respondent failed to rectify her substance-abuse barrier.
At the time of the hearing on the supplemental petition for termination, she had been sober for 60
days. Two years had passed since removal.
As the reasonableness of reunification efforts depends on the circumstances of a particular
case, we reject respondent’s request to hold that inpatient treatment should be required first in
every case involving substance abuse. See In re Fried, 266 Mich App at 542-543. In this case,
respondent was offered both inpatient and outpatient treatment in conjunction with other services,
including parenting classes, parenting time with the children, and mental-health counseling. It was
not unreasonable for petitioner to order these other services at the same time as substance-abuse
treatment given the importance of some of the other services, particularly visitation and addressing
respondent’s mental-health concerns. Moreover, respondent cannot show that she would have
fared better had different services been offered because substance-abuse services were offered but
she did not benefit from those services for a considerable time. At no time did respondent request
additional or different substance-abuse treatment and the record does not support that a reasonable
likelihood existed that she would have completed other treatment had it been offered. In particular,
respondent’s argument that she should have been placed in a 90-day program is undercut by her
failure to complete the shorter programs that were offered. Additionally, respondent herself
claimed that she used drugs to help her “cope,” highlighting that mental-health services were likely
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necessary to help her fight her substance-abuse problem. Accordingly, respondent has not
established plain error affecting her substantial rights in regard to reasonable efforts.
B. STATUTORY GROUNDS
Respondent also briefly argues that petitioner failed to present clear and convincing
evidence to terminate her parental rights under MCL 712A.19b(3)(g) and (j). We disagree. The
trial court must find at least one of the statutory grounds for termination by clear and convincing
evidence in order to terminate parental rights. In re Gonzalez/Martinez, 310 Mich App 426, 431;
871 NW2d 868 (2015). If this Court finds that the trial court did not clearly err as to the existence
of one ground for termination, this Court need not address any additional termination grounds.
See In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009). Accordingly, we affirm the trial
court’s determination under subsection (j).
Under MCL 712A.19b(3)(j), termination is proper when “[t]here is a reasonable likelihood,
based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is
returned to the home of the parent.” This statutory factor considers not only the harm that may
result from the parent’s conduct toward the child, but also harm that might reasonably result from
the parent’s conduct around the child, such as exposing the child to individuals with criminal
backgrounds who might exploit the child or otherwise place the child at risk. See In re White, 303
Mich App 701, 712; 846 NW2d 61 (2014). A parent’s “lengthy period of instability” stemming
from mental-health issues, combined with a present and “continuing lack of judgment, insight, and
empathy” for a child, is also relevant to this statutory ground. In re Utrera, 281 Mich App 1, 25;
761 NW2d 253 (2008). This Court has recognized that subsection (j) considers not only the
prospect of physical harm, but also the risk of emotional harm. See In re Hudson, 294 Mich App
261, 268; 817 NW2d 115 (2011). Harm may also include the prospect that the parent’s behavior
would negatively influence the children. See In re Olive/Metts Minors, 297 Mich App 35, 41; 823
NW2d 144 (2012). The trial court must “scrutinize the likelihood of harm if the child were
returned to the parent’s home” at the conclusion of the child-protective proceedings, not at that
exact moment in time. See In re Pops, 315 Mich App 590, 600; 890 NW2d 902 (2016).
The trial court did not clearly err in relying on this statutory ground. The record reflects
that respondent had a long history—at least 14 years—of substance abuse that included alcohol
and cocaine. Several of the children were born positive for cocaine, suffered withdrawals after
birth, and were suspected of suffering from fetal-alcohol syndrome. Respondent lacked housing
and income. Respondent also frequently missed parenting-time visits with some of the children,
claiming that the visits were too overwhelming. In short, petitioner presented clear and convincing
evidence of respondent’s failure to consistently visit the children, comply with her treatment plan,
and benefit from services, thus establishing that there was a reasonable likelihood of harm if the
children were returned to her care. See White, 303 Mich App at 710-711. Accordingly, the trial
court did not clearly err by finding that termination of respondent’s parental rights to the children
was proper under MCL 712A.19b(3)(j).
C. BEST INTERESTS
Although respondent does not challenge the trial court’s best-interests findings, a review
of the record supports the trial court’s determination. “Even if the trial court finds that the
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Department has established a ground for termination by clear and convincing evidence, it cannot
terminate the parent’s parental rights unless it also finds by a preponderance of the evidence that
termination is in the best interests of the children.” Gonzalez/Martinez, 310 Mich App at 434. “In
making its best-interest determination, the trial court may consider the whole record, including
evidence introduced by any party.” In re Medina, 317 Mich App 219, 237; 894 NW2d 653 (2016)
(quotation marks and citation omitted). “[T]he child’s bond to the parent, the parent’s parenting
ability, the child’s need for permanency, stability, and finality, and the advantages of a foster home
over the parent’s home,” are all factors for the court to consider when deciding whether termination
is in the best interests of the child. White, 303 Mich App at 713. “The trial court may also consider
a parent’s history of domestic violence, the parent’s compliance with his or her case service plan,
the parent’s visitation history with the child, the children’s well-being while in care, and the
possibility of adoption.” Id. at 714. On appeal, this Court places its focus on the child, rather than
the parent. In re Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016).
The trial court did not clearly err when it found that termination was in the children’s best
interests. The record reflects that the children were removed following a domestic-violence
incident and the discovery of stolen, loaded firearms accessible to them. Several of the children
were very young; one was born after the others were removed. Witnesses testified that adoption
offered them needed stability and permanency. Respondent had a 14-year history of drug and
alcohol addiction and generally did not comply with her treatment plan. Respondent also
frequently missed parenting-time visits with several of the children, claiming the visits were
overwhelming.
Affirmed in Docket Nos. 357938 and 358902.
/s/ Mark J. Cavanagh
/s/ Kristina Robinson Garrett
/s/ Christopher P. Yates
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