DHHS Did Not Investigate Relative Placement, Parental Rights Termination ‘Conditionally Reversed’
The trial court’s finding that the termination of the respondents’ parental rights was in the child’s best interests must be “conditionally reverse[d],” the Michigan Court of Appeals has ruled, because the Department of Health and Human Services (DHHS) failed to comply with its statutory duty to investigate relative placements.
Accordingly, the Court of Appeals remanded In re D.M.A.N., Minor (Docket Nos. 364518 and 364520) “for further proceedings related to DHHS’s failure to investigate relative placements.”
The case arose after the child, DN, told her preschool teacher the respondent-father had sexually abused her and the respondent-mother was aware of the abuse. The preschool teacher reported the alleged abuse to Children’s Protective Services. DHHS subsequently removed DN from the respondents’ care and placed her with her maternal grandmother as part of a temporary voluntary agreement.
Before the adjudication trial, DHHS filed a motion to admit DN’s statements to her preschool teacher under the tender-years hearsay exception, MCR 3.972(C)(2). The Wayne County Circuit Court granted the motion and admitted the teacher’s testimony. After the adjudication trial, the trial court found statutory grounds to exercise jurisdiction over DN. Following a termination hearing, the trial court found statutory grounds to terminate the respondents’ parental rights and held that termination was in DN’s best interests. The respondent-mother’s parental rights were terminated under MCL 712A.19b(3)(b)(ii) and (j), while the respondent-father’s parental rights were terminated under MCL 712A.19b(3)(b)(i), (j) and (k)(ix).
The respondents appealed and raised various issues, including that the respondent-mother’s “suggest[ion]” that because DHHS failed its statutory duty to investigate relative placements, the trial court should have treated DN as if she were placed with a relative when making its best-interests determination. “We conclude that the trial court did not err by declining to treat the child as if she were placed with relatives when she was, in fact, not placed with relatives,” the Court of Appeals stated.
However, although the respondents did not argue that DHHS’s failure to investigate relative placement was an “independent basis for reversal,” the Court of Appeals said it had “discretion” to examine the issue. “Because we cannot overlook the fact that DHHS completely disregarded its obligation under MCL 722.954a(2) to investigate relative placements, we … consider this issue notwithstanding respondents’ failure to preserve the issue for review or to raise it as an issue on appeal.”
Because it was “impossible to know” how the case would have unfolded if DHHS had investigated relative placements as required by law, “we conclude that the trial court’s best-interests decision is conditionally reversed and we remand for a determination as to whether a suitable relative placement is available,” the Court of Appeals held.
Judge Mark T. Boonstra, Judge Michael J. Kelly and Judge Allie Greenleaf Maldonado were on the panel that issued the published opinion.
‘Failure To Investigate’
On appeal, the respondent-mother “mention[ed]” the DHHS “failed to investigate potential relative placements before placing DN with an unrelated foster family.” Although this issue was not specifically raised on appeal, the Court of Appeals decided to review it for “plain error affecting substantial rights.”
According to the Court of Appeals, the following must be shown to establish plain error: 1) an error occurred, 2) the error was “clear or obvious” and 3) the plain error affected substantial rights. Also, “the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.”
The Court of Appeals continued by explaining that, under MCL 722.954a(2), when a child is removed from his or her parents, DHHS “must, within 30 days, identify, locate, notify, and consult with relatives to determine placement with a fit and appropriate relative who would meet the child's developmental, emotional, and physical needs.”
Here, “[i]t is clear from the record that this obligation was not met,” the Court of Appeals said. “Multiple relatives expressed interest in caring for DN, but DHHS did not explore their fitness. This conduct fell foul of DHHS’s statutory duties and put at risk DN’s right to maintain a relationship with safe relatives. At the termination hearing, DHHS offered two excuses for its failure to comply with its statutory duty to investigate relative placements. First, a caseworker testified that no relative placements were considered because there were suspicions that DN’s maternal grandmother had coached DN. Second, a different DHHS employee testified that no relative placements were considered because there was a court order directing that the child not be placed with relatives. No such order appears in the record. Neither explanation allows DHHS to exempt itself from its statutory duty under MCL 722.954a(2). Therefore, on this record, it is plain that DHHS did not comply with its statutory duty.”
The Court of Appeals further said that “the failure to even attempt to keep DN from being separated from her biological family seriously affects the fairness, integrity, and public reputation of judicial proceedings.”
Accordingly, the remaining question was “whether the error affected substantial rights,” the Court of Appeals stated. “Normally, this Court would consider whether the error affected a party’s substantial rights. … However, under some circumstances, it is also appropriate to consider whether the error affected a non-party child’s substantial rights if a child’s rights are affected by the error. … At the outset, it is clear that DHHS’s failure to investigate a relative placement can have an [e]ffect on a respondent-parent’s interests. This is because the fact that a child is placed with a relative is an explicit factor that must be considered by the trial court when considering whether termination of a parent’s parental rights is in the child’s best interests. … Yet, the child’s rights are also implicated. MCL 722.954a creates a statutory preference for placement with relatives. Such a placement prevents the child from being separated from his or her family, thereby preserving important familial bonds even in the face of allegations that the child’s parent or parents are unfit to provide care. Finally, ‘[t]he focus at the best-interest stage has always been on the child, not the parent.’ … Indeed, the trial court is tasked with finding whether it is in the child’s best interests to terminate the parental rights of an unfit parent. MCL 712A.19b(5). Accordingly, given that the child’s rights are also directly impacted by the failure to consider relative placement, it is appropriate to consider whether the failure affected the child’s substantial rights.”
Based on the record, “we cannot ascertain whether the child would or would not have been placed with relatives if DHHS had not ignored its statutory duties,” the Court of Appeals wrote. “Because DHHS conducted no investigation of the relatives willing to accept placement of DN, there is nothing on the record to determine whether a relative placement exists that can ‘meet all relevant state child protection standard,’ MCL 722.954a(2), and that is in DN’s best interests, see MCL 722.954a(5). If none of DN’s relatives were suitable for placement, then no substantial rights would have been affected by the failure to investigate relative placements. But if DN had suitable relatives willing to accept placement, then she should have been placed with those relatives at the outset of the proceedings. Such a placement would have weighed against a finding that termination of respondents’ parental rights was in DN’s best interests. It would have also protected DN’s interest in maintaining a familial relationship with her suitable relatives.”
Therefore, “[w]e affirm the trial court’s decision to admit DN’s statements through her teacher’s testimony,” the Court of Appeals concluded. “Further, because DHHS’s failure to investigate a relative placement does not affect the trial court’s finding that there were statutory grounds to terminate respondents’ parental rights and because the trial court did not clearly err by finding statutory grounds to terminate respondents’ parental rights, we affirm that decision.”
However, based on DHHS’s failure to comply with its statutory duty under MCL 722.954a(2) to investigate relative placements, “we conditionally reverse the trial court’s findings that termination of respondents’ parental rights was in DN’s best interests and we remand for further proceedings related to DHHS’s failure to investigate relative placements,” the Court of Appeals held.
“On remand, if the evidence establishes that there are no suitable relative placements available, the termination order shall be reinstated,” the Court of Appeals wrote. “If, however, DHHS’s investigation under MCL 722.954a(2) results in a finding that a suitable relative placement exists, then DHHS shall make a placement decision as required by MCL 722.954a(5). Further, DHHS must comply with the notice requirements in MCL 722.954a(4). And a challenge to the placement decision may be made as set forth under MCL 722.954a(9). If a challenge to the placement decision is timely made, the trial court must hold a hearing as required in MCL 722.954a(9). After that hearing, the trial court must enter as order either approving or disapproving of DHHS’s placement decision. … Thereafter, the trial court shall reconsider whether termination of respondents’ parental rights is in the child’s best interests. Because this is a case in which termination has been sought with the initial petition, and because there are aggravating circumstances, DHHS does not have a duty to provide reasonable reunification efforts to respondents on remand.”
