                              STATE OF MICHIGAN

                               COURT OF APPEALS



                                                                     UNPUBLISHED
In re JONES, Minors.                                                 October 27, 2015

                                                                     No. 326252
                                                                     Ontonagon Circuit Court
                                                                     Family Division
                                                                     LC No. 2013-000013-NA


Before: MARKEY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

        Respondent-mother appeals as of right the trial court order terminating her parental rights
to two minor children, RJ and GJ, under MCL 712A.19b(3)(c)(i) (conditions of adjudication
continue to exist) and (j) (reasonable likelihood that the children will be harmed if returned to the
parent).1 We remand this case to the trial court for redetermination of the children’s best
interests, but otherwise reject respondent’s claims.

                  I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

        In August 2013, petitioner, the Department of Health and Human Services (“DHHS”),
filed a petition for the removal of RJ, GJ, and another child2 from respondent’s home.3 The
petition included a series of allegations indicating that respondent had neglected and abused the
children, and that respondent’s home was an unfit place for the children to live. Later that
month, petitioner filed a supplemental petition that included additional allegations of neglect and
abuse and again indicated that respondent’s home constituted an unfit or unsafe home
environment. At the preliminary hearing in September 2013, the trial court determined that it
could exercise jurisdiction over the children and authorized the petition in light of respondent’s
admissions—albeit with explanation—to three of the allegations in the petition: (1) that
respondent slept in a camper, located on a campsite next to a lake, while the children played


1
  The court also terminated the parental rights of the children’s father, but he has not appealed
that decision and, as a result, is not participating in this appeal.
2
    The third child is not a subject of this appeal.
3
  Before the petition for removal was filed in August 2013, respondent had been under the
attention of Child Protective Services and received services from DHHS.


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outside without supervision; (2) that RJ, a toddler, walked along a well-traveled highway by
herself while respondent was inside the home bathing another child; and (3) that respondent
grabbed RJ by her hair to prevent her from walking onto a roadway when the family was
walking home from the store. It is undisputed that the trial court failed to comply with MCR
3.971(C) when it accepted respondent’s plea. However, the record clearly indicates that the trial
court stated on the record, before respondent admitted the three allegations, that the court would
have jurisdiction over the children if it accepted respondent’s admissions. Following the
hearing, the children were placed in their father’s care.

       Between September 2013 and May 2014, respondent was offered numerous services to
address her parenting skills and anger issues, which included, among other things, anger
management classes, parenting classes, counseling services, parenting aide assistance, and
guidance for improving respondent’s home environment and properly providing for the children.
Throughout this time period, respondent demonstrated some improvement in her interactions
with the children during their supervised visits, although she occasionally regressed and became
overwhelmed with supervising the children.

        In May 2014, RJ and GJ were removed from their father’s care and returned to
respondent. Respondent’s home environment showed improvement, but she resisted services for
GJ and began to miss appointments with her parenting aide, her counselor, and her caseworker
and expressed frustration with, and resistance to, petitioner’s involvement in her life. In July
2014, it became evident that respondent had reverted to inappropriate and violent parenting of
her children.

        In September 2014, a supplemental petition for removal was filed, which included
allegations that respondent inappropriately disciplined and supervised the children, and that her
home was an unfit place for the children to live. In particular, the petition alleged that (1)
respondent lifted RJ off of a shopping cart by her hair, forcefully pushed RJ against a wall, and
yelled at RJ with her face inches away from RJ’s face; (2) respondent placed tape over GJ’s and
RJ’s mouths to make them stop talking; and (3) respondent pushed GJ with her foot, dragged GJ
out of the store using GJ’s foot, and then pushed the cart into GJ while GJ was on the ground.
The trial court entered an emergency order removing the children from respondent’s care.
Ultimately, the children were placed with respondent’s aunt and uncle.

        In October 2014, a supplemental petition was filed, which sought the termination of
respondent’s parental rights on the basis that respondent was unable to control her anger and
temper during challenging parenting situations, exhibited abusive and neglectful parenting
practices, displayed an inability to utilize proper parenting techniques in order to ensure the
safety of the children, and failed to provide structure and supervision for the children. The trial
court found that termination of respondent’s parental rights to GJ and RJ was proper pursuant to
MCL 712A.19b(3)(c)(i) and (j). The court further found that termination was in the children’s
best interests. Although the court noted that respondent had made some progress with regard to
maintaining a clean home environment and providing food for the children, the court found that
respondent did not demonstrate “the same progress in controlling her temper and parenting her
children in a safe and controlled manner,” reverting back to violent and destructive parenting
practices, especially when she was stressed. The trial court also noted that petitioner had
provided respondent with all of the services that it could offer, but, despite these services,

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respondent demonstrated “negligible progress” and failed to address her mental health issues.
Respondent now appeals.

                              II. VALIDITY OF ADJUDICATION

        Respondent first asserts that the trial court erroneously assumed jurisdiction over the
children on the basis of her admissions, arguing that (1) she did not intend for her admissions to
function as a plea, and (2) the court failed to comply with MCR 3.971 and advise her of the
consequences of entering a plea before she stated her admissions on the record. We, however,
conclude that respondent may not challenge the trial court’s initial exercise of jurisdiction in this
appeal.

         “Child protective proceedings have long been divided into two distinct phases: the
adjudicative phase and the dispositional phase.” In re AMAC, 269 Mich App 533, 536; 711
NW2d 426 (2006). “The adjudicative phase occurs first and involves a determination whether
the trial court may exercise jurisdiction over the child, i.e., whether the child comes within the
statutory requirements of MCL 712A.2(b).” Id. “The dispositional phase involves a
determination of what action, if any, will be taken on behalf of the child.” Id. at 537. Ordinarily,
in cases where “termination occurs following the filing of a supplemental petition for termination
after the issuance of the initial dispositional order,” “an adjudication cannot be collaterally
attacked following an order terminating parental rights.” In re SLH, 277 Mich App 662, 668;
747 NW2d 547 (2008); see also In re Gazella, 264 Mich App 668, 679-680; 692 NW2d 708
(2005) (“Matters affecting the court’s exercise of its jurisdiction may be challenged only on
direct appeal of the jurisdictional decision, not by collateral attack in a subsequent appeal of an
order terminating parental rights.”), superseded in part on other grounds as stated in In re
Hansen, 285 Mich App 158, 163-164; 774 NW2d 698 (2009), vacated on other grounds 486
Mich 1037 (2010). However, an exception to this rule applies when “termination occurs at the
initial disposition as a result of a request for termination contained in the original, or amended,
petition for jurisdiction . . . .” In re SLH, 277 Mich App at 668.

        In this case, the adjudication and final disposition were separated by a lengthy period of
attempts at reunification. Because this appeal is from a dispositional order of termination
entered after the initial adjudication, respondent is precluded from challenging the trial court’s
exercise of jurisdiction in this case. See also In re Hatcher, 443 Mich 426, 438-440; 505 NW2d
834 (1993) (stating that an error in the exercise of jurisdiction may be challenged in a direct
appeal, but may not “be challenged years later in a collateral attack”).

                     III. SUFFICIENCY OF REUNIFICATION SERVICES

        Next, respondent argues that the trial court erred in terminating her parental rights
because termination was premature in light of the fact that petitioner offered no further services
after the children were removed from respondent’s care for the second time. Likewise,
respondent contends that petitioner failed to fulfill its duty to expend reasonable efforts to
reunify respondent with her children. We disagree.

                   A. STANDARD OF REVIEW AND APPLICABLE LAW


                                                -3-
        To preserve an issue regarding the adequacy of the services provided during child
protective proceedings, a respondent must object or otherwise raise the issue when the services
are offered. In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012) (“The time for asserting
the need for accommodation in services is when the court adopts a service plan . . . .” [Quotation
marks and citation omitted.]). Respondent asserts that this issue was preserved through
petitioner’s claim in its petition for the termination of respondent’s parental rights that it had
expended reasonable efforts for reunification and through the statement of respondent’s counsel
in his written closing argument that “termination [was] not the solution” in light of respondent’s
compliance with her service plan before the children were removed from her care. However, we
deem this issue unpreserved because neither of the statements cited by respondent challenged the
adequacy of the services offered by petitioner. Accordingly, we review respondent’s claim for
plain error affecting substantial rights. Demski v Petlick, ___ Mich App ___, ___; ___ NW2d
____ (2015) (Docket No. 322193); slip op at 9. “To avoid forfeiture under the plain error rule,
three requirements must be met: (1) the error must have occurred, (2) the error was plain, i.e.,
clear or obvious, (3) and the plain error affected substantial rights.” Id. at ___; slip op at 9-10
(quotation marks and citation omitted).

        “In general, when a child is removed from the parents’ custody, the petitioner is required
to make reasonable efforts to rectify the conditions that caused the child’s removal by adopting a
service plan.” In re Fried, 266 Mich App 535, 542; 702 NW2d 192 (2005), citing MCL
712A.18f(1), (2), and (4); see also In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008). When
the petitioner fails to offer services or provide a reasonable opportunity for a respondent to
participate in services, the result is a gap in the evidentiary record that renders termination of
parental rights improper. In re Mason, 486 Mich 142, 158-160; 782 NW2d 747 (2010).
However, “[w]hile the DH[H]S 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 at 248.
When a respondent fails to adequately participate in, and benefit from, services that are in fact
provided by petitioner, she is not entitled to claim that petitioner was required to provide
additional services. See id.

                                         B. ANALYSIS

       In this case, the trial court summarized the services offered as follows:
       During the two years that [petitioner] worked with [respondent and the children’s
       father] in Ontonagon County, they were provided with parenting assistance,
       including Parent Aides, guidance on how to provide a proper physical home
       environment, physical care and needs, anger management, psychological needs
       assessment, general counseling services, Families First assistance, Friend of the
       Court SMILE program, Parenting Wisely programs. Additional services were
       also provided for the children, some of which [respondent] accepted, but others
       she refused (such as much needed therapy, Head Start and Early On preschool
       services for [GJ], assistance in obtaining dental services for [GJ] and
       psychological services for herself if medication was prescribed).




                                                -4-
On appeal, respondent does not argue that she did not receive the services described by the trial
court. Instead, she only challenges the fact that petitioner failed to provide additional services
after the children were removed from her care for the second time.

         At the hearing on the petition in connection with the second removal, a DHHS worker
testified that “the historical issues that we have at hand with services being provided to
[respondent include that] every effort that [petitioner] has been able to make has not been shown
to [help respondent] be successful with parenting the [minor children] and, if anything,
[respondent has been] destructive and plac[ed] them in unsafe situations.” The caseworker also
stated that she could describe the efforts that DHHS had made to correct respondent’s parenting
issues and the fact that those issues have “not been able to be resolved.” She elaborated:
                Well, what’s not in the Petition . . . is that there is also a lack of
       cooperation that we have observed with [respondent] over the last month. She has
       not . . . cooperated with the weekly counseling sessions and services that have
       been arranged . . . . She’s also had an average of four missed appointments with
       . . . a parent aide, which is supposed to service [respondent] on a twice a week
       basis and has not; and she has missed appointments for last two to three weeks
       with [another] parent aid . . . .

The DHHS caseworker added that respondent’s counselor had indicated that respondent “was
showing frustration with the Department and did verbalize . . . a will or a desire not to
cooperate.” When respondent’s counsel asked, “Is it possible to have any services implemented
right now to--so that . . . there cannot be or will not be a suspended parenting time?,” the DHHS
caseworker responded, “Services through [petitioner] . . . from my knowledge at this point, [are]
exhausted. We’ve given [respondent] everything that we can--or currently are giving
[respondent] everything that we can, and I don’t see any other way to implement any other
services.” At the termination hearing, the DHHS caseworker again confirmed that there were no
further services that the agency could offer, and respondent had received all of services that the
agency was capable of offering before the children were removed for a second time.
Additionally, the trial court’s order terminating parental rights reiterates these facts.

       Although the trial court ordered that “[r]easonable efforts for reunification should be
continued” after the second removal, the record demonstrates that petitioner had previously
expended extensive efforts to achieve reunification and that services in addition to those already
provided were not reasonable under the circumstances given respondent’s lack of improvement
from the previous efforts and the fact that petitioner had provided all of the services that it could
offer. Although respondent asserts on appeal that she was steadily becoming a better parent
throughout the proceedings, the record indicates otherwise. If a respondent fails to display
improvement from services, and there is no basis for believing that additional services will be
successful when the services already offered were ineffective, the logical conclusion is that
additional services are not necessary under petitioner’s obligation to expend reasonable efforts.
Instead, it is apparent from the record that petitioner fulfilled its duty to make reasonable efforts
toward reunification in this case, but respondent failed in her duty to participate in, or benefit




                                                -5-
from, the services provided. See In re Frey, 297 Mich App at 248.4 Thus, respondent has failed
to demonstrate a plain error affecting her substantial rights.

                    IV. CONSIDERATION OF RELATIVE PLACEMENT

        Respondent argues that the trial court’s conclusions regarding the children’s best interests
were deficient because the court failed to explicitly consider in its best-interests determination
the option of continuing placement of the children with respondent’s aunt and uncle. We agree.

                       A. STANDARD OF REVIEW AND APPLICABLE LAW

        This Court reviews for clear error a trial court’s best-interest determination. In re White,
303 Mich App 701, 713; 846 NW2d 61 (2014), citing MCR 3.977(K). “A finding is clearly
erroneous [if] although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been made.” In re Mason, 486
Mich 142, 152; 782 NW2d 747 (2010) (quotation marks and citation omitted; alteration in
original).

        Generally, a child’s placement with a relative weighs against termination and is “an
explicit factor to consider in determining whether termination [is] in [a child’s] best interests.”
Id. at 164, citing MCL 712A.19a(6)(a); see also In re Olive/Metts Minors, 297 Mich App 35, 43;
823 NW2d 144 (2012). If the court fails to expressly address placement with a relative, the
record is inadequate to make a best-interest determination, and reversal is required. In re
Olive/Metts, 297 Mich App at 43.

                                         B. ANALYSIS

        On appeal, respondent and petitioner agree that the trial court failed to expressly consider
the children’s placement with respondent’s aunt and uncle during its best-interest determination.
Likewise, although it is evident that the trial court was aware of the relative placement, as it
mentioned in its factual findings that the children had been placed with respondent’s aunt and
uncle and appeared to be thriving in their care, the record does not indicate that the court
explicitly considered the option of relative placement in determining whether termination was in


4
  Respondent relies on In re Plump, 294 Mich App 270, 273; 817 NW2d 119 (2011), in which
we noted that the petitioner “provided respondent numerous services each time the children were
removed from care . . . .” As such, respondent contends that our statement established a rule that
petitioner must recommence reunification services each time a child is removed from a parent’s
household. However, the context of the statement in In re Plump clearly indicates that we were
merely observing that petitioner had, in fact, provided services after each removal in that case;
we were not establishing or referencing a rule that services must be renewed with every removal
in every case. Indeed, implicit in the requirement that petitioner must take “reasonable efforts”
to achieve reunification is an understanding that what is reasonable will vary from case to case.
Respondent’s attempt to wring from In re Plump a firm rule requiring renewed services after
each removal is misguided.


                                                -6-
the children’s best interests, or recognized that a placement with relatives would weigh against
termination. Accordingly, we vacate the trial court’s best-interest determination and remand this
case for further proceedings on this issue.

                       V. INEFFECTIVE ASSISTANCE OF COUNSEL

        Lastly, respondent asserts that her attorney provided ineffective assistance throughout the
child protective proceedings. In particular, she argues that trial counsel was ineffective for
failing to object to the trial court’s initial exercise of jurisdiction, failing to seek additional
reunification services, and failing to assert that the trial court must consider, under In re
Olive/Metts Minors, the children’s placement with relatives during its best-interest
determination. We disagree.

                       A. STANDARD OF REVIEW AND APPLICABLE LAW

        “Although the constitutional provisions explicitly guaranteeing the right to counsel apply
only in criminal proceedings, the right to due process also indirectly guarantees assistance of
counsel in child protective proceedings. Thus, the principles of effective assistance of counsel
developed in the context of criminal law apply by analogy in child protective proceedings.” In
re CR, 250 Mich App 185, 197-198; 646 NW2d 506 (2002), overruled on other grounds by In re
Sanders, 495 Mich 394; 852 NW2d 524 (2014); see also In re Simon, 171 Mich App 443, 447;
431 NW2d 71 (1988). Our review of respondent’s claims is limited to mistakes apparent on the
record because she did not move for a new trial or Ginther5 hearing. People v Petri, 279 Mich
App 407, 410; 760 NW2d 882 (2008). “A claim of ineffective assistance of counsel is a mixed
question of law and fact. A trial court’s findings of fact, if any, are reviewed for clear error, and
this Court reviews the ultimate constitutional issue arising from an ineffective assistance of
counsel claim de novo.” Id., citing People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002).

        In order to prove that counsel provided ineffective assistance, a respondent must
demonstrate that (1) “ ‘counsel’s representation fell below an objective standard of
reasonableness,’ ” and (2) respondent was prejudiced, i.e., “that ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” People v Vaughn, 491 Mich 642, 669-671; 821 NW2d 288, 305 (2012) (quoting
Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984)). “A
[respondent] must also show that the result that did occur was fundamentally unfair or
unreliable.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). “Effective
assistance of counsel is presumed,” and a respondent bears a heavy burden of proving otherwise.
Petri, 279 Mich App at 410. Likewise, a respondent “must overcome a strong presumption that
counsel’s performance constituted sound trial strategy.” Id. at 411.

                                          B. ANALYSIS



5
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


                                                -7-
        First, as discussed supra, respondent’s claims related to the trial court’s initial exercise of
jurisdiction, including her claim of ineffective assistance, should have been raised in a direct
appeal from that decision, not in this claim of appeal from a later decision to terminate parental
rights. See In re Hatcher, 443 Mich at 439-440; In re SLH, 277 Mich App at 668. As such, this
claim of error, which is related to the trial court’s exercise of jurisdiction at the adjudicative
stage, may not be considered in this appeal. Nevertheless, the testimony in the record describing
respondent’s physical and emotional abuse of the children clearly demonstrates that there is not a
reasonable probability that the outcome of the proceedings, in this case the trial court’s exercise
of jurisdiction over the children, would have been different but for counsel’s alleged errors. See
MCL 712A.2(b)(1), (2); Vaughn, 491 Mich at 669-671.

        Second, we reject respondent’s claim of ineffective assistance arising from counsel’s
failure to request additional services when the children were removed a second time. Counsel’s
failure to advocate a meritless position cannot constitute ineffective assistance of counsel.
People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). As explained supra,
petitioner was not required by law to renew services with each removal. Additionally, given the
testimony indicating respondent’s minimal compliance and benefit from the services that had
been offered, such that petitioner’s ability to facilitate reunification had been “exhausted,” it is
apparent that petitioner fulfilled its duty to make reasonable efforts toward reunification and that
respondent failed to fulfill her duty to participate in and benefit from the services provided.
Moreover, the record suggests that counsel had reason to believe that a continued provision of
services could have resulted in an expansion of respondent’s record of resisting, or otherwise
failing to benefit from, the services. Accordingly, counsel may have refrained from requesting
additional services in order to avoid drawing attention to his client’s poor record in that regard.
See Petri, 279 Mich App at 411 (noting the strong presumption that counsel’s performance
constituted sound trial strategy).

        Lastly, we need not consider respondent’s argument concerning her attorney’s alleged
failure to argue that the trial court was required, under In re Olive/Metts Minors, to explicitly
consider the children’s placement with relatives during its best-interest determination. Our
decision to vacate the court’s best-interest determination and remand for redetermination of the
children’s best interests obviates any need to consider whether a deficiency in counsel’s
performance also necessitates reconsideration of the best-interests determination. See B P 7 v
Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998) (“As a general rule, an
appellate court will not decide moot issues.”). However, contrary to respondent’s claims on
appeal, the written closing argument prepared by respondent’s counsel expressly reminded the
trial court that a child’s placement with relatives is a factor that the court needs to consider in
determining a child’s best interests.

                                        VI. CONCLUSION

       For the reasons stated above, we remand this case to the trial court for redetermination of
the children’s best interests in accordance with In re Olive/Metts, 297 Mich App at 43, but
otherwise reject respondent’s claims of error.




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        Affirmed in part, vacated in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.



                                                          /s/ Jane E. Markey
                                                          /s/ Cynthia Diane Stephens
                                                          /s/ Michael J. Riordan




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