                           STATE OF MICHIGAN

                             COURT OF APPEALS



                                                                       UNPUBLISHED
In re LARKIN, Minors.                                                  May 5, 2016

                                                                       No. 329173
                                                                       Oakland Circuit Court
                                                                       Family Division
                                                                       LC No. 14-818589-NA


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

PER CURIAM.

       Respondent appeals as of right the order terminating her parental rights to the minor
children under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist).1
We affirm.

                I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

        In April 2014, petitioner, the Department of Health and Human Services (“DHHS”), filed
a petition for removal of the minor children from respondent’s care. The petition alleged that the
trial court should exercise jurisdiction over the children under MCL 712A.2(b) because of (1)
respondent’s inability to properly care for and supervise the children due to her prescription drug
use, and (2) unsafe living conditions in the home, including, inter alia, “large amounts of dirty
dishes, large amount[s] of old and rotten food on the counters throughout the home, dog feces . .
. in multiple locations in the home, . . . a broken window [with only a blanket covering it],”
rotten carpet and floors, filthy furniture, and excessive debris, which prevented Oakland County
Sheriff’s Deputies from walking through the house.

       The petition alleged that the family had an extensive history with Children’s Protective
Services (“CPS”), which included two open, “high risk” cases arising from physical abuse and
unsafe home conditions. Additionally, the petition alleged that the family already had received
services in both CPS cases and was working with Easter Seals when the petition was filed. The


1
  The trial court also terminated the parental rights of the children’s father, but he is not a party to
this appeal. Thus, we will refer to respondent-mother as “respondent” in this opinion. Where
relevant, we will refer to the child’s father as respondent-father and both parents jointly as
“respondents.”


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petition also alleged that the family allowed multiple squatters to live in the family home,
including at least one individual with an extensive criminal history, and that respondent was
currently being investigated for alleged retail fraud. Following a preliminary hearing, the trial
court authorized the petition.

        Later that month, respondent pleaded no contest to the allegations in the petition. The
trial court accepted respondent’s plea, finding that a sufficient factual basis existed to conclude
that the children came within the jurisdiction of the court under MCL 712A.2(b)(1) and (2).
Respondent was ordered to submit to random drug screening and participate in parenting classes
as well as supervised visitation with the children.

        At a dispositional hearing in June 2014, respondent was ordered to comply with her
parent/agency agreement (“PAA”), under which she was required to attend substance abuse
counseling, attend parenting classes, participate in parenting time, secure a legal source of
income, obtain suitable housing, participate in individual therapy, participate in anger
management classes if her individual therapy did not include such a component, and submit to
random drug screens. As further discussed infra, in the year following the filing of the initial
petition, respondent largely failed to comply with or benefit from the court-ordered services and
failed to rectify the conditions leading to adjudication.

        In March 2015, petitioner filed a supplemental petition seeking the termination of
respondent’s parental rights under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication
continue to exist) and (3)(j) (reasonable likelihood of harm). At a statutory basis hearing in May
2015, respondent pleaded no contest to the allegations in the termination petition. After hearing
testimony from one of the caseworkers assigned to the case, the trial court found that petitioner
had proven, by clear and convincing evidence, that a statutory basis for termination existed under
MCL 712A.19b(3)(c)(i), but not (3)(j). Following a best interests hearing in August 2015, the
trial court found, by a preponderance of the evidence, that termination of respondent’s parental
rights was in the best interests of the children. The court also found that petitioner made
reasonable efforts to return the children to respondent and reunify the family, but those efforts
were unsuccessful. Accordingly, it entered an order terminating respondent’s parental rights on
August 20, 2015.

                     II. SUFFICIENCY OF REUNIFICATION EFFORTS

        Respondent’s sole contention on appeal is that petitioner failed to make reasonable efforts
to reunify the family, thereby violating her due process rights. In particular, respondent argues
that petitioner failed to make reasonable efforts because it failed to offer housing services and
failed to timely facilitate an alternative method and location for respondent’s drug screens. We
disagree.

                   A. STANDARD OF REVIEW AND APPLICABLE LAW

        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

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marks and citation omitted). Likewise, a respondent fails to preserve her challenge to a case
service plain if she waits until late in the proceedings to challenge the services offered. See id.;
cf. In re Terry, 240 Mich App 14, 26-27; 610 NW2d 563 (2000).

        Respondent neither objected nor otherwise raised an issue in the trial court regarding the
adequacy of housing-related services offered during the proceedings. However, respondent
raised the issue of her inability to complete drug screens without an alternative testing method
and requested additional services in that regard. Thus, this issue is arguably preserved. We
review for clear error the trial court’s decision that petitioner made reasonable efforts to reunify
the family. See In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005).

         “A natural parent has a fundamental liberty interest in the care, custody, and
management of his child that is protected by the Fourteenth Amendment of the United States
Constitution.” In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009) (quotation marks and
citation omitted). “In Michigan, procedures to ensure due process to a parent facing removal of
his child from the home or termination of his parental rights are set forth by statute, court rule,
DHS policies and procedures, and various federal laws discussed below.” Id. at 93.
Accordingly, by statute, “when a child is removed from the parents’ custody, the petitioner is
[generally] 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 at 542, citing MCL
712A.18f(1), (2), and (4); see also In re HRC, 286 Mich App 444, 462; 781 NW2d 105 (2009);
MCL 712A.19a(2). Reasonable efforts to reunify parents and children must be made “in all
cases” except those involving aggravated circumstances that are not present here. MCL
712A.19a(2); In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). When 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 and
premature. In re Mason, 486 Mich at 152, 158-160.

       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 actually
offered by petitioner, she is not entitled to claim that petitioner was required to provide
additional services. See id.

                                         B. ANALYSIS

       Reasonable efforts were made to rectify the conditions that led to adjudication and
reunify respondent with her children.

                                    1. HOUSING SERVICES

        First, as respondent contends, the record shows that petitioner provided limited, if any,
housing-related assistance to respondent. However, given the representations of respondent and
respondent-father throughout the proceedings, and the fact that respondent never requested
housing assistance, the record includes no basis for concluding that petitioner should have
realized that housing services were necessary. Both respondents repeatedly indicated that they

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were making progress toward securing safe and stable housing throughout the pendency of the
child protective proceedings.

       At the June 4, 2014 dispositional hearing, the parties acknowledged on the record the
problems that needed to be addressed in respondents’ home so that it would be safe for the
children. During the hearing, a Lutheran Social Services caseworker assigned to this case stated
that she had brought “some community resources that may be able to help with” fixing the
home.2 At that time, respondent did not indicate that housing-related services were required or
requested.

        At the September 8, 2014 hearing, the same caseworker indicated that she had been
unable to perform a home assessment due to (1) respondent’s failure to maintain contact with her
or return her phone calls, and (2) the fact that no one was home when she subsequently attempted
to perform an unannounced home assessment. However, respondents, individually and through
their counsel, stated that they had fixed two broken windows, that “the inside of the house is
fine,” that respondent-father had been using as much of his income as possible to fix up the
house, and that “[t]he only thing[s] left [to fix] are two broken windows.” These statements
clearly indicated purported progress toward rehabilitating the home.

         By December 2014, respondents had “let the house go” because they believed that the
neighborhood was not an appropriate place for their children. As a result, they were staying with
a neighbor in the same trailer park as their former home. Despite this situation, at the December
1, 2014 hearing, respondent-father’s attorney indicated, “[Both respondents] have the possibility
of . . . housing, and hopefully by the time we come back for the next hearing housing will be in
place.” Likewise, both respondents personally stated on the record that they planned to move out
of the trailer park in approximately one month.

        At the February 18, 2015 permanency planning hearing, a Lutheran Social Services
caseworker indicated that she learned that respondents had been forced to leave the neighbor’s
trailer on December 10, 2014, and that they subsequently moved into a hotel, but neither
respondent directly notified her of that development or notified her that their phone number had
changed. The caseworker later discovered that they had moved into a different hotel on January
25, 2015. Despite this apparent housing instability, however, respondent-father’s attorney again
stated in the trial court, “They have prospects of an apartment. They should be able to move out
of their motel fairly soon.”

       Shortly thereafter, the termination petition was filed on March 2, 2015. “Petitioner . . . is
not required to provide reunification services when termination of parental rights is the agency’s
goal.” In re HRC, 286 Mich App at 463.

         On this record, petitioner did not act unreasonably in omitting housing-related services
given respondents’ representations to the trial court and the fact that respondent never requested
such assistance. This is especially apparent in light of the numerous other services offered by


2
    The nature of these community resources is not apparent from the record.


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petitioner, both in this case and in previous CPS cases, including the Families First program,
PACE substance abuse assessments, family team meetings, case conferences, parenting classes,
substance abuse classes, parenting time, individual therapy, and anger management classes.

                                    2. DRUG SCREENING

       The record also shows that petitioner made sufficient efforts to ensure that respondent
was provided with suitable drug screening services. Respondent claims that petitioner did not
make reasonable efforts in this case because it was late in providing accommodations for her
social phobia and it refused to provide Forensic Fluids testing once she moved away from
Oakland County. The gravamen of respondent’s argument is that petitioner failed to consistently
provide an alternative drug testing method, i.e., mouth swab tests as opposed to urine tests, in a
timely manner after it became aware of her condition at the June 4, 2014 dispositional hearing.

        First, it is apparent that petitioner’s purported lack of effort between June 2014 and
September 2014 was inconsequential and did not result in a gap in the evidentiary record. See In
re Mason, 486 Mich at 158-160. Respondent expressly admitted at the review hearing on
September 8, 2014, that she had been using prescription drugs, for which she did not have a
prescription, since the last review hearing on June 4, 2014, and that she would have failed any
drugs screens if she had participated in them.

        Following the September 8, 2014 hearing, the record shows that petitioner provided
information to respondent in November 2014 regarding Forensic Fluids screens in Oakland
County after it received a letter from respondent’s doctor confirming that respondent cannot
perform urine tests due to her social phobia. Respondent confirmed at the hearing that she had
no issue with performing mouth swab tests for her drugs screens. Nevertheless, respondent did
not sign up to begin the Forensic Fluids screenings until December 24, 2014.

        Then, even though she had signed up for Forensic Fluids screenings, respondent missed
every screen between December 24, 2014, and the permanency planning hearing on February 18,
2015. While respondent emphasizes on appeal that she moved from Oakland County to Lapeer
County during this time period, the move occurred only two and a half weeks before the hearing,
during which time respondent failed to keep in touch by phone with the Lutheran Social Services
caseworker. At the hearing, the court ordered the caseworker to contact DHHS about finding an
alternative testing site in Lapeer County, but, as the trial court recognized, the location of the
services was only a recent issue. Thus, it is apparent that the majority of the missed drug screens
between November 2014 and February 2015 were due to respondent’s own lack of initiative.

        Following the February 18, 2015 hearing, the caseworker attempted to locate a closer
testing site that was under contract with DHHS, but her attempts were unsuccessful as of March
5, 2015. Contrary to respondent’s characterization of the record on appeal, petitioner never
refused to provide Forensic Fluids testing after she moved to a different county. Rather,
respondent was informed that the only available testing sites were in Oakland County. Further, it
is noteworthy that the caseworker testified at the best interest hearing in August 2015 that
respondent began completing Forensic Fluids screens after she completed an inpatient drug
rehabilitation program on June 21, 2015.


                                                -5-
        On this record, especially given respondent’s complete failure to participate in the
alternative drug screens offered by petitioner between November 2014 and February 2015 before
she moved to Lapeer County, it is clear that respondent failed to fulfill her “commensurate
responsibility . . . to participate in the services that are offered.” In re Frey, 297 Mich App at
248. Because she failed to adequately participate in, and benefit from, services that were
actually offered by petitioner, she arguably is not entitled to claim on appeal that petitioner was
required to provide additional services. See id.

         Furthermore, in determining whether reasonable efforts were made in this case, we may
consider whether respondent would have fared better had petitioner offered additional services.
See In re Fried, 266 Mich App at 543. At the best interests hearing, respondent testified that she
had entered a rehabilitation program earlier in 2015 and had only been clean for 76 days, i.e.,
since June 21, 2015. Likewise, the caseworker testified that respondent had made some progress
on her substance abuse issues in the two months prior to the best interests hearing on August 6,
2015, during and after respondent had admitted herself to the drug rehabilitation program. Given
this testimony, there is no indication that “petitioner’s efforts toward reunification were not
reasonable, and, more to the point, [there is no indication] that respondent would have fared
better if [petitioner] had offered . . . additional [drug screening] services to h[er]” earlier in the
proceedings. Id. at 543. Likewise, given the evidence in the record, petitioner’s failure to
facilitate alternative drug screens near respondent’s residence between February 2015 and June
2015 does not undercut the adequacy of the evidence demonstrating that termination of
respondent’s parental rights was in the best interests of the children. See In re Mason, 486 Mich
at 152, 158-160; In re Fried, 266 Mich App at 541; In re Newman, 189 Mich App 61, 66-69; 472
NW2d 38 (1991).

        Finally, as stated supra, the record reveals that respondent was offered numerous services
prior to the filing of the termination petition as well as throughout the entire pendency of this
case. Petitioner’s efforts in this case were reasonable under the circumstances, and the trial court
did not clearly err in so finding. See In re Fried, 266 Mich App at 542-543. Accordingly, we
find no basis for concluding that respondent’s due process rights were violated in this case.

                                        III. CONCLUSION

        The trial court did not clearly err in concluding that petitioner provided reasonable efforts
to reunify respondent with the children. Likewise, there is no basis for concluding that the extent
of petitioner’s reunification efforts in this case violated respondent’s due process rights.

       Affirmed.

                                                              /s/ Christopher M. Murray
                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Michael J. Riordan




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