in Re Gee Minors ( 2019 )

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UNPUBLISHED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 GEE, Minors. June 6, 2019
No. 346664
Oakland Circuit Court
Family Division
LC No. 2018-862682-NA
Before: SAWYER, P.J., and O’BRIEN and LETICA, JJ.
PER CURIAM.
Respondent-mother appeals as of right the trial court’s order terminating her parental
rights to the minor children pursuant to MCL 712A.19b(3)(b)(i), (g), (j), and (k)(v). We affirm.
This case arises from an original petition to obtain court jurisdiction over the minor
children and terminate respondent’s parental rights at the initial dispositional hearing. At a
hearing on February 27, 2018, a Child Protective Services (CPS) specialist testified that on
February 3, 2018, respondent was driving under the influence of cocaine and with a blood
alcohol content of .23, while pregnant. Respondent crashed her vehicle into a pole. The trauma
necessitated an emergency Cesarean section to deliver the unborn child, who died shortly after
birth. Respondent’s other children were not in the vehicle at the time of the accident and were in
the care of their maternal uncle pursuant to a safety plan, but CPS was concerned that respondent
would take the children. Thereafter, the trial court entered an order finding that reasonable
efforts were made to prevent the children’s removal and placing them into protective custody.
After a preliminary hearing, the trial court similarly found that reasonable efforts had been made
to prevent removal and authorized the petition.
Subsequently, a bench trial regarding jurisdiction was held. The trial court found that
petitioner had satisfied its burden under MCL 712A.2(b)(1) and (2), on the basis of evidence that
respondent used illegal drugs and alcohol while pregnant and got into a car accident, resulting in
the death of her child. The trial court also found that there were statutory grounds to terminate
respondent’s parental rights pursuant to MCL 712A.19b(3)(b)(i), (g), (j), and (k)(v). After a
best-interest hearing, the trial court further found that termination of respondent’s parental was in
the children’s best interests. This appeal followed.
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Respondent argues that the children were improperly removed because the Department of
Health and Human Services (DHHS) failed to make reasonable efforts to prevent the children’s
initial removal and, therefore, the remaining proceedings are null and void. We disagree.
This Court reviews a trial court’s factual findings, such as whether DHHS made
reasonable efforts to prevent removal, for clear error. In re Fried, 266 Mich. App. 535, 541; 702
NW2d 192 (2005). “A trial court’s findings of fact are clearly erroneous if we are definitely and
firmly convinced that it made a mistake.” In re Keillor, 325 Mich. App. 80, 85; 923 NW2d 617
(2018) (quotation marks and citation omitted).
Respondent is challenging the emergency removal of the children that occurred after the
hearing on February 27, 2018. The trial court entered an order taking the children into protective
custody, in which it expressly found that reasonable efforts were made to prevent removal of the
children from the home. Specifically, the trial court found:
DHHS has attempted several interviews with mother. DHHS has
interviewed putative fathers, relatives, hospital staff and law enforcement. DHHS
reviewed several law enforcement reports. DHHS has attempted to hold several
[Family Team Meetings (FTMs)] with mother however mother does not appear.
Previous CPS records have been reviewed. A maternal uncle and his fiancée have
been investigated for relative placement. Mother has claimed Native American
heritage. DHHS has begun the process of notification to the appropriate tribes.
Respondent relies on Title IV-E, 42 USC 670 et seq., arguing that it requires the
petitioner to make “reasonable efforts” to prevent the removal of a child. 42 USC 671(a)(15),
however, sets forth criteria that a state agency must satisfy in order to qualify for federal aid. See
Suter v Artist M, 503 U.S. 347, 358; 112 S. Ct. 1360; 118 L. Ed. 2d 1 (1992). It does not confer any
rights on parents in child protective proceedings. Id. at 363-364.
Nonetheless, MCR 3.963(B)(1)(c) governs emergency removal orders and requires a
court to make specific findings of fact that, “[c]onsistent with the circumstances, reasonable
efforts were made to prevent or eliminate the need for removal of the child.” See also MCL
712A.14b(1)(c). As noted, the trial court’s order entered after the February 27, 2018 hearing,
expressly found that reasonable efforts were made to prevent removal of the children from the
home. Respondent, however, claims that the trial court’s findings are clearly erroneous because
DHHS failed to identify what was learned from the interviews and reports, and failed to identify
any program that could have been implemented before removal.
Initially, petitioner argues that respondent has waived her claim that DHHS failed to
make reasonable efforts to prevent removal. “Waiver is the intentional relinquishment of a
known right.” Dep’t of Licensing & Regulatory Affairs v Gordon, 323 Mich. App. 548, 562; 919
NW2d 77 (2018). Petitioner relies on the fact that, at the preliminary hearing, which began on
February 28, 2018, the day after the children’s removal, the referee asked respondent for any
argument against emergency placement and her attorney stated, “I understand the placement
issue and would ask for supervision, your Honor, supervised visits.” Although this statement
does appear to have effectuated a waiver of the removal issue at the preliminary hearing on
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February 28, 2018, respondent is challenging the emergency removal that occurred on
February 27, 2018, and, on that date, no waiver occurred.
Nonetheless, respondent fails to establish that the trial court’s finding that reasonable
efforts were made to prevent removal is clearly erroneous. DHHS’s efforts included conducting
interviews, reviewing reports and records, and holding a FTM. Although the CPS specialist did
not testify regarding what she learned from the interviews and records, it can reasonably be
inferred that the decision to seek removal of the children was based on these efforts and the
information obtained. According to the testimony at the February 27, 2018 hearing, DHHS was
concerned that if the children were not removed from respondent’s custody, she would take them
from their uncle and they would be in danger, given her continued substance abuse, which
resulted in the car accident that caused the death of her child shortly after an emergency delivery.
Thus, removal was sought to ensure that respondent could not take the children from the uncle.
Although respondent also argues that DHHS failed to identify any program that could
have been implemented before removal, she fails to identify any relevant authority that requires
DHHS to “identify a program” as part of its reasonable efforts to prevent removal. She similarly
fails to identify a specific program that should have been offered and that could have prevented
removal. “The failure to brief the merits of an allegation of error is deemed an abandonment of
an issue.” In re JS & SM, 231 Mich. App. 92, 98; 585 NW2d 326 (1998), overruled on other
grounds by In re Trejo, 462 Mich. 341 (2000). Moreover, it is not evident that any program
could have been immediately implemented so that removal of the children from respondent’s
custody would have been unnecessary. Respondent was a substantial risk to the children given
her decision to use drugs and alcohol while pregnant and drive under the influence of those
substances. The trial court did not clearly err by finding that DHHS’s efforts to prevent removal
were reasonable under the circumstances.
In addition, even if the trial court erred by finding that reasonable efforts were made,
respondent fails to establish that reversal is required under the harmless error standard from
MCR 2.613(A), which applies to child protective proceedings. See MCR 3.902(A); In re Utrera,
281 Mich. App. 1, 21; 761 NW2d 253 (2008); In re TC, 251 Mich. App. 368, 371; 650 NW2d 698
(2002). MCR 2.613(A) provides:
An error in the admission or the exclusion of evidence, an error in a ruling
or order, or an error or defect in anything done or omitted by the court or by the
parties is not ground for granting a new trial, for setting aside a verdict, or for
vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to
take this action appears to the court inconsistent with substantial justice.
As noted, respondent failed to appear for a FTM. Given respondent’s failure to attend a
FTM before the emergency removal, she fails to establish that the identification of any program
by DHHS would have made a difference. Respondent was apparently interviewed and any
program that would have likely been offered to her and implemented would have been done at
the FTM. Moreover, respondent failed to comply with services offered in connection with a
previous CPS investigation involving substance abuse. In this case, respondent only participated
in one parenting time visit and one drug screen, which yielded positive results for THC and
cocaine. Thus, it is unlikely that she would have participated in any program offered before
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removal. Accordingly, the failure to correct any error in the finding of reasonable efforts is not
inconsistent with substantial justice.
Moreover, respondent’s claim that any error in the finding of reasonable efforts nullified
the entire proceedings is without merit. Respondent fails to provide any support for her claim
that an error in an emergency removal order renders the entire child protective proceedings null
and void. Respondent observes that because petitioner sought termination at the initial
dispositional hearing, an attack on jurisdiction is direct, not collateral. But respondent does not
challenge the trial court’s jurisdictional findings, only its order taking the children into protective
custody.
Furthermore, following the children’s emergency removal, a preliminary hearing was
held, after which the referee and the trial court again found that reasonable efforts were made to
prevent removal, including interviewing respondent, the putative fathers, relatives, hospital staff,
and law enforcement. The referee and the trial court made similar findings after the continued
preliminary hearing on April 16, 2018. Subsequently, an adjudication trial was held and the trial
court found that jurisdiction was proper under MCL 712A.2(b)(1) and (2). The trial court also
found that there were statutory grounds to terminate respondent’s parental rights pursuant to
MCL 712A.19b(3)(b)(i), (g), (j), and (k)(v). Finally, after a best-interest hearing, the trial court
found that termination of respondent’s parental rights was in the children’s best interests.
Respondent does not challenge any of these findings. Accordingly, respondent fails to establish
that failure to correct any error in the order taking the children into protective custody would be
inconsistent with substantial justice.
Affirmed.
/s/ David H. Sawyer
/s/ Colleen A. O’Brien
/s/ Anica Letica
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