JUVENILE CASELAW UPDATE

BY KELLY WARD (VAN BUREN)

DELINQUENCY
 
UNPUBLISHED
 
PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellee, v BS, Respondent-Appellant, (January 23, 2025), No. 370879, Midland Circuit Court Family Division, LC No. 23-005515-DL
 
Respondent, a juvenile, appeals by right the trial court’s dispositional order committing her to an open-ended term of detention following her violation of probation on an underlying offense of illegal entry, MCL 750.115(1).
 
This case arises from an incident in which respondent illegally entered the home of her neighbor, i.e., entered without permission, and took some property belonging to the owner. Respondent was apprehended shortly after. At her adjudication, she admitted to the offense; at the dispositional hearing, the court ordered that the respondent serve a nine-month term of probation. Shortly after starting probation, respondent left her home, did not return, and absconded from probation. Respondent maintained contact with some third parties, including her sister, but failed to contact her probation officer. Respondent finally returned 11 or 12 days before her next scheduled dispositional review. In total, the respondent absconded from probation for approximately seven months.
 
After a violation of probation hearing where the prosecutor argued that juvenile detention was the least restrictive environment available to protect society and to meet the respondent’s needs considering her behavior and defense counsel agreeing to the prosecutor’s recommendation, the court ordered an open-ended term of probation.
 
MCR 3.902(B) instructs the court to “ensure that each minor coming within the jurisdiction of the court shall . . . receive the care, guidance, and control, preferably in the minor’s own home, that is conducive to the minor’s welfare and the best interests of the public” in a delinquency proceeding. If a trial court finds that a juvenile has violated the terms of the juvenile’s probation, it “may modify the existing order of probation or order any disposition available under MCL 712A.18 or MCL 712A.18a.” MCR 3.944(E)(1). The court may enter a dispositional order that is “appropriate for the welfare of the juvenile and society in view of the facts proven and ascertained,” but it must order that the juvenile remain with their parent if doing so would not “cause a substantial risk of harm to the juvenile or society.” MCL 712A.18(1). The dispositional orders listed under MCL 712A.18 include commitment to a public institution. MCL 712A.18(1)(e). “The court has broad authority in effectuating dispositional orders once a child is within its jurisdiction.” In re Sanders, 495 Mich 394, 406; 852 NW2d 524 (2014). This Court affords dispositional orders “considerable deference on appellate review.” Id. “In making second and subsequent dispositions in delinquency cases, the court must consider imposing increasingly severe sanctions, which may include . . . ordering a juvenile who has been residing at home into an out-of-home placement.” MCR 3.943(E)(2).
 
The court agreed with the trial court that respondent’s act of absconding indicated that she posed a substantial risk to herself and the community. Furthermore, placement in a secure facility was necessary because there was no appropriate less restrictive placement available, considering the best interests of the respondent, because her parent was unable to provide the care, guidance, and control that would have been conducive to respondent’s welfare as evidenced by that fact that her whereabouts were unknown for approximately seven months.
 
Affirmed.

CHILD PROTECTIVE PROCEEDINGS
 
FOR PUBLICATION
 
In re Barber/Espinoza, Minors, (Sept. 19, 2024), Docket No. 369359, Lenawee County Circuit Court Family Division, LC No. 23-000033-NA
 
Petitioner, DHHS, filed for permanent custody of the minor children based largely on a forensic interview given by one of the children, CB, where CB disclosed sexual abuse perpetrated on her on two different occasions by two different adult men in the presence of the respondent. Respondent observed the abuse occurring to CB but did not attempt to stop it, and CB alleged that one of the incidents occurred because the respondent was attempting to secure drugs from one of the men. The Trial Court suspended Respondent’s parenting time and contact with both children following the preliminary hearing and the children were placed with their father. The Trial Court did not inform respondent of her right to appeal the removal decision. The Trial Court later found, in a written order, that reasonable efforts to reunify were not required due to the presence of aggravated circumstances as defined by MCL 722.638. The Trial Court ultimately concluded that there was clear and convincing evidence to terminate respondent’s parental rights pursuant to MCL 712A.19b(3)(b)(i), (b)(ii), and (j) and that termination was in the children’s best interests. Respondent then appealed.
 
To be considered an aggravated circumstance within the meaning of MCL 722.638(1) and (2), sexual abuse perpetrated on a child must be perpetrated by “a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child’s home.”
 
The court noted that, while “CB unquestionably alleged abuse via criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate,” which is indeed contained within the plain language of MCL 722.638(1)(a)(i), “this case is complicated because the sexual abuse was committed by an unrelated adult not living in the home.” The court found that “the key question here is whether criminal sexual conduct against a minor child enumerated in MCL 722.638(1)(a)(ii) must be perpetrated by “a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child’s home” to constitute an aggravated circumstance warranting termination at the initial disposition.” The court noted that it had addressed this question in two recent unpublished cases: In re Boyce (Docket No. 348992) released January 23, 2020, and In re Bergren (Docket No. 354767) released June 3, 2021.
 
Although both Boyce and Bergren contain a similar fact pattern, the court came to different conclusions regarding the key question present here. The Boyce Court determined that “a parent subjects a child to aggravating circumstances when the child is sexually abused by an unrelated adult living outside the home if the parent placed the child at an unreasonable risk of harm because of their failure to take reasonable steps to intervene to eliminate that risk.” The Bergren Court determined “that criminal sexual conduct as an aggravating circumstance must be committed by a parent or other specifically listed person in MCL 722.638(1)(a).” The court in the present case determined that the Bergren interpretation of MCL 722.638 was proper, as Boyce “incorrectly conflates the related but distinct requirements of MCL 722.638(1) and (2).” The court further found that allowing aggravating circumstances to apply generally to cases involving criminal sexual conduct perpetrated by anyone so long as the parent is “suspected of placing the child at an unreasonable risk of harm because of the parent’s failure to take reasonable steps to intervene to eliminate that risk” would render superfluous the legislature’s clear instruction that the various categories of abuse must be perpetrated by” those individuals listed in MCL 722.638.” The court found that the trial court in the present case committed the same error as the Bergren trial court and a petition for termination at initial disposition was not mandated under MCL 722.638(1). The court concluded that the trial court’s decision to terminate respondent’s parental rights without first offering reunification services was clearly erroneous.
 
Plain error applies even where the appellant does not provide substantive argument regarding the prejudicial nature of a clear and obvious error. The court held that, although there was a “dearth of published authority addressing the facts and question at issue and indeed conflicting unpublished authority on the matter,” the trial court’s error was sufficiently “clear and obvious” such that the plain error standard could apply. The court supported this finding, stating that “interpretation of MCL 722.638 is clearly provided by the statute’s plain language and supported by a recent case from this court.”
 
The court also held that the trial court’s error prejudiced the respondent, although respondent did not provide “substantive argument that the outcome of this case was affected by the trial court’s error,” because “it is unclear how an aggrieved respondent could establish outcome-determinative error concerning the denial of reunification services altogether and the error improperly dispensed with a critical aspect of a child protective proceeding, the requirement to offer reunification services before terminating parental rights, affected the very framework within which this case progressed, undermined the foundation of the rest of the proceedings, and impaired respondent’s fundamental right to direct the care, custody, and control over her children.” The court further noted that, although there was no authority addressing this issue, “it logically appears that the error at issue would categorically deprive respondents the ability to challenge the case’s outcome, or at least hinder this ability, because reunification services are the primary avenue through which a parent can demonstrate their willingness and ability to parent once a case commences,” and respondent could have demonstrated termination was not warranted if she had been provided the opportunity to participate in reunification services. The court also found In re Ferranti, 501 Mich 1 (2019) to be analogous to the situation presented by this case, as, although the error here occurred before the adjudication, “the error nevertheless impaired respondent’s fundamental right to direct the care, custody, and control over her children in the first instance, and it unquestionably affected the very framework within which this case progressed and undermined the foundation of the rest of the proceedings.” The court reversed the trial court’s order terminating respondent’s parental rights.
 
Where a trial court fails to advise a respondent of their appellate rights, pursuant to MCR 3.965(B)(15), following removal of a child from the respondent’s care, the trial court plainly errs.
 
The Court did conclude that, because the Trial Court failed to advise respondent of her appellate rights following the removal of the children from her care, the Trial Court had violated MCR 3.965(B), and the Trial Court’s violation of that court rule was a “clear or obvious error in the process” such that plain error standard applied.
 
Reversed and remanded.  We do not retain jurisdiction. 
 
FOR PUBLICATION
 
In re WALTERS, Minor, (January 02, 2025), No. 369318, Calhoun Circuit Court Family Division, LC No. 2023-002237-NA
 
In this case, DHHS proceeded without obtaining jurisdiction despite the minor child having tested positive for illegal substances at birth.  DHHS then implemented an oral ‘safety plan’ which was essentially a case service plan that was never presented to or approved by a court.  Under the law, the respondent was never obligated to comply with this safety plan, because it was never court ordered.  Respondent failed to comply with the safety plan and DHHS filed a petition and sought termination of parental rights at initial disposition based on the failure to comply with the safety plan, despite no evidence the minor child’s needs were not being met.  DHHS did not fulfill its obligation to obtain court jurisdiction and implement a formal, written, court-approved services plan.
 
Additionally, DHHS “sought and obtained termination of respondent’s parental rights at the initial disposition despite failing to even allege the existence of an exception to its duty to provide reasonable efforts toward reunification.”  MCL 712A.19a(2) contains an exclusive list of the exceptions to the DHHS’s duty to make reasonable efforts toward reunification and a trial court, under no circumstances, may terminate a parent’s rights without first finding that one of these exceptions applies. DHHS “argues that MCL 712A.19a(2) is optional, and it can avoid its protections by continuing to offer services while it awaits the initial disposition.”  The statue unambiguously provides that the efforts being made must be aimed at reunification and that is impossible if the agency that is offering the services is actively working to terminate parental rights. The trial court erred by terminating respondent’s parental rights at the initial disposition instead of ordering reasonable efforts toward reunification.  DHHS and the trial court did not provide reasonable efforts toward reunification.
 
The court’s order terminating respondent’s parental rights is reversed. This case is remanded for additional proceedings. On remand, DHHS shall prepare a case service plan, and the trial court shall order that reasonable efforts be made toward reunification. We do not retain jurisdiction.