                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                   UNPUBLISHED
In re HILL, Minors.                                                August 11, 2016

                                                                   No. 330764
                                                                   Alger Circuit Court
                                                                   Family Division
                                                                   LC No. 2013-004455-NA


Before: SERVITTO, P.J., and MARKEY and GLEICHER, JJ.

PER CURIAM.

       Respondent appeals by right from the order terminating his parental rights to his minor
children, JH and AH. We affirm.

        JH and AH were initially removed from the home of respondent and the children’s
mother in May 2013 based on allegations that the parents were incarcerated and had a lengthy
history of criminal behavior and drug abuse. In June 2013, the Sault Ste. Marie Tribe of
Chippewa Indians filed a petition to intervene, alleging that the children were members of the
tribe. The motion was granted. Both respondent and the children’s mother admitted to the
allegations in the petition at a hearing in August 2013, at which they both appeared via telephone
from their respective prisons. The trial court assumed jurisdiction over JH and AH.

        Respondent participated in a number of services while he was incarcerated, including an
employment readiness program, a money smart program, and a violence prevention program.
Respondent also completed a parenting handbook that was sent to him by Stacy King, who
would later supervise respondent’s parenting time with the children. Respondent also obtained
his GED and had contact with his children through letters and phone calls. During his time in
prison, respondent participated in all of the periodic review hearings via telephone.

        Respondent began parenting time shortly after his release from incarceration in
December 2014, and by all accounts displayed good parenting skills and was appropriate during
parenting time. King testified that JH and AH were affectionate with respondent, were excited to
see him, and often did not want visits to end. Respondent was also offered a variety of services,
including substance abuse counseling and a family continuity program. Respondent attended 6
of 9 sessions with his substance abuse counselor. He explained he missed 3 sessions because he
forgot they were scheduled. Respondent did not engage with the family continuity program.
Tribal caseworker Christina Menard testified that respondent told her he did not think that he
needed it. Respondent testified that he was too busy with work and other services to be involved


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with the family continuity program. Respondent’s drug screens only tested positive for
substances for which he had a prescription.

        Respondent was arrested on March 5, 2015, for violating his parole by having
unauthorized contact with the children’s mother, and again on April 30, 2015, for being out past
his curfew. Menard testified that when respondent was restrained for violating his curfew he was
found to be in possession of morphine for which he did not have a prescription. Respondent
acknowledged that at the time he was placing his desire to get high above all else. Respondent
was sentenced to a jail term of 1 year. Respondent testified that he wanted to engage in
substance abuse treatment and programs while incarcerated but could not get into them.
Respondent continued to have contact with his children through phone calls and letters.
Respondent was in a physical altercation with another inmate during this most recent
incarceration.

       Petitioner filed a supplemental petition requesting the termination of respondent’s
parental rights in October 2015. Heidi Cotey, a caseworker for the Sault Ste. Tribe of Chippewa
Indians, was recognized by the court as a tribal expert. Cotey testified that the active efforts
were made to avoid termination. Cotey testified that it did not appear that respondent benefitted
from the services provided because he has been incarcerated all but 3 months in the last 2 and a
half years. Menard testified that she believed it was in the best interests of the children to
terminate respondent’s parental rights. Menard stated that the biggest issue was that respondent
was not able to put his kids’ needs ahead of his criminal lifestyle. Menard testified that the tribal
welfare committee had also recommended termination.

       The trial court accepted testimony that respondent did well at parenting times, but
concluded that respondent put himself in a situation where he would not be available to his
children. The trial court accepted that the children were bonded to respondent, but found that he
had not provided the permanence and stability that they deserve. The trial court stated that if the
past were a barometer, respondent would likely reoffend. The trial court stated that by
possessing morphine, respondent had signaled that the drug was more important to him than his
children. The trial court stated that reasonable efforts to avoid termination were made but that
they were unsuccessful. The trial court terminated respondent’s parental rights.

       On appeal respondent argues that the trial court erred in terminating his parental rights
because neither active efforts nor reasonable efforts were made to reunify him with his children.
We review an order terminating parental rights under the clearly erroneous standard. MCR
3.977(K). A trial court’s decision that termination is in the best interests of the children is
reviewed for clear error. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144
(2012). A decision of the trial court is clearly erroneous if “the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been made.” In re JK
Minor, 468 Mich 202, 209-210; 661 NW2d 216 (2003).

        Before termination, petitioner must show that reasonable efforts were made to “rectify
the conditions that led to its involvement in the case.” In re Terry Minors, 240 Mich App 14, 25-
26; 610 NW2d 563 (2000). When dealing with an “Indian child” the state must “ ‘satisfy the
court that active efforts have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that these efforts have proved

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unsuccessful.’ ” In re JL Minor, 483 Mich 300, 317; 770 NW2d 853 (2009), quoting 25 USC
1912(d). The “active efforts” requirement requires affirmative rather than passive efforts and
more than the “ ‘reasonable efforts’ required under state law.” Id. at 321.

       At the time of respondent’s termination hearing, Cotey testified that active efforts had
been made. Cotey testified extensively about the services provided, including contact between
the children and respondent while he was in prison, checking with the prison for services,
obtaining services for respondent when he was out of prison such as family continuity, assisting
with transportation, and providing parenting classes. Cotey testified that no services were
needed that were not provided, that active efforts had been made, and that termination was
appropriate. This testimony, coupled with the record of services provided, supports the
conclusion that affirmative “active” efforts were made toward reunification.1

        In support of his argument that he was not provided sufficient services or that petitioner
made insufficient effort toward reunification, respondent relies on In re Mason Minors, 486
Mich 142; 782 NW2d 747 (2010). In Mason Minors, the respondent was sent to prison on a
probation violation, and the petitioner and the trial court did not include him in subsequent
hearings or inform him of his right to participate by telephone. Id. at 148. The respondent
opposed termination due to “his imminent release from prison” and the assertion that he had
arranged a job and housing. Id. at 150. The trial court terminated the respondent’s parental
rights because he had not personally cared for the children while in prison and because his
incarceration had precluded him from taking advantage of services. Id. at 151.

        Our Supreme Court held that the trial court was prohibited from granting termination
because it and the petitioner had precluded respondent from participating in the hearings via
telephone. Id. at 154-155. The Court further explained that “[t]he mere present inability to
personally care for one’s children as a result of incarceration does not constitute grounds for
termination.” Id. at 160. The Court also found that the respondent had arranged for his children
to be cared for by a family member and had arranged for a job and housing for himself upon his
release from prison. Id. at 162-164. Our Supreme Court also faulted the petitioner for not
helping the respondent to seek out and obtain services while incarcerated. Id. at 156-160. The
Court held that because the petitioner and trial court had failed to fulfill their duties to make
reasonable efforts to reunite the family, the trial court’s termination of respondent’s parental
rights should be reversed. Id. at 166.

        Respondent argues that like the case of In re Mason, his parental rights were terminated
solely because of his incarceration and that petitioner, and the trial court failed to give him a
meaningful opportunity to avoid termination. We find Mason inapposite. In Mason, the
petitioner failed “to engage respondent in the proceedings against him “by neglecting to arrange
for his telephonic participation in the child protective proceedings, and “abandoned” its statutory


1
  After respondent’s parental rights were terminated, the Sault Ste. Marie Tribe of Chippewa
Indians sent a letter to the trial court stating that respondent “has been disenrolled due to
improper enrollment of the family many years ago.” The trial court granted the tribe’s motion to
withdraw its intervention in the case.


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responsibility to provide in appropriate and necessary reunification services. Id. at 146. The trial
court in Mason had

       effectively terminated respondent’s parental rights merely because he was
       incarcerated during the action without considering the children’s placement with
       relatives or properly evaluating whether placement with respondent could be
       appropriate for the children in the future. [Id.]

       In contrast, respondent participated by telephone during his incarceration and with
multiple services both while incarcerated and during his brief windows of freedom. The trial
court terminated respondent’s parental rights based on its well-supported conclusion that
respondent would be unable to provide his children with stability or permanence due to his on-
going drug abuse and criminality. Unlike the respondent-father in Mason, respondent was
offered a meaningful opportunity to participate in and benefit from the case services.
Respondent’s reliance on Mason in unavailing.

        Respondent also failed to participate in the family continuity program, and while he did
attend 6 of 9 sessions with a substance abuse counselor, his explanation for missing the other 3
was simply that he forgot. Respondent was also allowed to attend every hearing by either
telephone or video conference. Additionally, by the time of the termination hearing, the
children’s maternal grandmother was no longer able to take care of them, and respondent never
identified another family member who could take over their care.

        Given the evidence adduced below, we conclude that that petitioner made reasonable
efforts to “rectify the conditions that led to its involvement in the case.” In re Terry, 240 Mich
App at 25-26. Services were provided, but respondent failed to benefit from them to a degree
that additional efforts toward reunification should have been made.

       We affirm.

                                                             /s/ Deborah A. Servitto
                                                             /s/ Jane E. Markey
                                                             /s/ Elizabeth L. Gleicher




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