            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                                                                     UNPUBLISHED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 B. A. DOERING, Minor.                                          July 16, 2020

                                                                     No. 351631
                                                                     Monroe Circuit Court
                                                                     Family Division
                                                                     LC No. 19-024719-NA


Before: TUKEL, P.J., and SERVITTO and BECKERING, JJ.

PER CURIAM.

       Respondent-father appeals as of right the order terminating his parental rights to his minor
child, BD, under MCL 712A.19b(3)(g) (failure to provide proper care or custody), and (j)
(reasonable likelihood child would be harmed if returned to parent). We reverse and remand.

                                       I. BACKGROUND

        In December 2018, petitioner, the Department of Health and Human Services, filed a
petition stating that BD’s mother had died and neither respondent nor another putative father had
established paternity. Respondent, who had been incarcerated since February 2018, testified that
he believed BD was his child and that he wished to establish paternity.

        In June 2019, DNA analysis revealed that respondent was BD’s biological father, and the
trial court thereafter entered an order declaring him BD’s legal father. Petitioner immediately filed
a petition seeking termination of respondent’s parental rights at the initial dispositional hearing.
Petitioner alleged that respondent could not provide proper care and custody to BD because he was
incarcerated and that BD was reasonably likely to be harmed if returned to his care due to
respondent’s domestic violence history. In addition, petitioner alleged that respondent had been
involved with Child Protective Services (CPS) in the past. Specifically, in December 2010, nine-
month-old CG died due to sepsis, failure to thrive, and co-sleeping. During a CPS investigation
into the matter, respondent reported that he was CG’s biological father. In March 2012, CPS
investigated neglect of respondent’s daughter, BM, by respondent and BM’s mother. Respondent
voluntarily released his parental rights to BM. At the time of BD’s birth, respondent was
incarcerated for, among other offenses, domestic violence against another one of his children’s
mother while she was pregnant.



                                                -1-
        At the preliminary hearing on the termination petition in the instant matter, CPS specialist
Eva Kopas testified that “there’s not many services [petitioner] can provide to [respondent]” and
that, given his earliest release date of December 2021 and his latest release date of February 2038,
it was unlikely respondent would complete services in a reasonable time. The trial court authorized
the petition without making a finding that reasonable efforts at reunification were unnecessary.

        In a November 2019 combined adjudication and termination hearing, respondent’s counsel
requested that respondent be provided with a service plan. Respondent emphasized that he was
never determined to be CG’s legal father, but largely admitted that the other allegations regarding
his criminal and CPS history were true. The trial court ultimately terminated respondent’s parental
rights. Respondent now appeals.

                                          II. ANALYSIS

        Respondent does not challenge the trial court’s findings that statutory grounds to terminate
his parental rights existed or that termination was in BD’s best interests. Respondent argues only
that the trial court prematurely terminated his parental rights because petitioner did not provide
him with a service plan, and therefore, did not make reasonable efforts at reunification.

       To preserve the issue of whether petitioner made reasonable efforts at reunification, a
respondent must object at the time the court adopts a service plan. In re Frey, 297 Mich App 242,
247; 824 NW2d 569 (2012); In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000).
Respondent did not assert that he wanted a service plan until the combined adjudication and
termination hearing, nearly four months after the petition to terminate his parental rights was filed.
Therefore, the issue is not preserved for review.

        This court reviews unpreserved issues for plain error affecting substantial rights. In re
Williams, 286 Mich App 253, 274; 779 NW2d 286 (2009), citing People v Carines, 460 Mich 750,
764; 597 NW2d 130 (1999). “To avoid forfeiture under the plain error rule, three requirements
must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights.” Carines, 460 Mich at 763. “The third requirement
generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower
court proceedings.” Id.

        “Reasonable efforts to reunify the child and family must be made in all cases except those
involving aggravated circumstances under MCL 712A.19a(2).” In re Rippy, __ Mich App __, __;
__ NW2d __ (2019) (Docket No. 347809); slip op at 2, citing In re Mason, 486 Mich 142, 152;
782 NW2d 747 (2010). Specifically, no efforts at reunification must be made if there “is a judicial
determination that the parent has subjected the child to aggravated circumstances as provided in
section 18(1) and (2) of . . . MCL 722.638.” MCL 722.638, in turn, provides in relevant part:

       (1) The department shall submit a petition for authorization by the court under
       section 2(b) of chapter XIIA of 1939 PA 288, MCL 712A.2, if 1 or more of the
       following apply:

       (a) The department determines that a parent, guardian, or custodian, or a person
       who is 18 years of age or older and who resides for any length of time in the child’s



                                                 -2-
       home, has abused the child or a sibling of the child and the abuse included 1 or
       more of the following:

       (i) Abandonment of a young child.

                                               * * *

       (b) The department determines that there is risk of harm, child abuse, or child
       neglect to the child and either of the following is true:

                                               * * *

       (ii) The parent’s rights to another child were voluntarily terminated following the
       initiation of proceedings under section 2(b) of chapter XIIA of 1939 PA 288, MCL
       712A.2, or a similar law of another state, the parent has failed to rectify the
       conditions that led to the prior termination of parental rights, and the proceeding
       involved abuse that included 1 or more of the following:

       (A) Abandonment of a young child.

        Respondent argues that petitioner did not allege, and the trial court did not find, that
aggravated circumstances relieved petitioner of its statutory duty to make reasonable efforts at
reunification. Respondent is correct. The petition alleged that services offered to respondent in
the 2012 case regarding BM constituted reasonable efforts to prevent removal of BD under MCR
3.965(C)(4), but the petition did not allege, and the court did not find, that the services offered in
2012 constituted reasonable efforts at reunification under MCL 712A.19a(2), and it is difficult to
see how they could. Respondent is also correct that the trial court did not expressly make a finding
that reasonable efforts at reunification were not required due to aggravated circumstances.

       At the preliminary hearing at which the petition was authorized, Kopas testified:

       There’s not many services we can provide to [respondent], given that his
       incarceration happened prior to our abuse and neglect [investigation], . . . [W]e
       have made contact with the prison to see what services are available, and what he
       can do from there[.] [H]owever, due to his earliest release date, it’s not likely that
       he’ll be able to do services in a reasonable time frame.1

Kopas’s testimony at the preliminary hearing was the last testimony the trial court heard on a
potential service plan before the hearing at which respondent’s parental rights were terminated.

       Our Supreme Court has stated that merely inquiring with a prison regarding available
services does not discharge petitioner’s duty to make reasonable efforts at reunification with an
incarcerated respondent. Mason, 486 Mich at 152. In Mason, the petitioner created a service plan



1
 Nonetheless, the box indicating that reasonable efforts at reunification shall be made was
checked in the trial court’s order authorizing the petition.


                                                 -3-
for the incarcerated respondent. Id. Despite a social worker’s testimony that it was the petitioner’s
policy to contact the prison to see what services were available, our Supreme Court held that the
petitioner had failed to make reasonable efforts at reunification because it did not actually facilitate
the respondent’s access to services. Id. at 157.

       In this case, petitioner did not even adopt a service plan for respondent, and there is no
evidence on the record that Kopas spoke with the prison about any particular service that might
have benefitted respondent. Therefore, respondent is correct that petitioner failed to make
reasonable efforts at reunification. Respondent is also correct that the trial court erred in failing to
make a finding that reasonable efforts were actually made or were not required under MCL
712A.19a(2) due to aggravated circumstances. Rippy, __ Mich App at __; slip op at 2.

        We acknowledge and find no fault with the trial court’s consideration of respondent’s prior
actions with BM when it addressed the instant matter, or its consideration of respondent’s pattern
of failure to establish paternity and domestic violence. Kopas testified regarding respondent’s
extensive pattern of using violence to resolve intrafamily disputes and respondent’s domestic
violence victims included his relatives, his romantic partners, and relatives of his romantic
partners. Moreover, respondent testified to a multitude of misconduct incidents while he has been
incarcerated, some of which involved violence. However, the trial court did not, in engaging in
such considerations, determine that clear and convincing record evidence existed to find that there
was a risk of harm, child abuse, or child neglect to BD, nor did it find that respondent had
abandoned BD. Contrary to petitioner’s argument otherwise, that the trial court may have
potentially been able to make such determinations does not absolve the trial court of its obligation
to actually do so in order to terminate respondent’s parental rights. The trial court thus erred in
terminating respondent’s parental rights without an explicit finding that petitioner made reasonable
efforts at reunification or that such efforts were not required, and these errors affected respondent’s
substantial rights. We therefore reverse and remand this matter to the trial court to either order
that reasonable services be provided to respondent, or articulate a factual finding by clear and
convincing evidence that aggravated circumstances exist such that services are not required.

        Reversed and remanded. We retain jurisdiction.



                                                                /s/ Jonathan Tukel
                                                                /s/ Deborah A. Servitto
                                                                /s/ Jane M. Beckering




                                                  -4-
                              Court of Appeals, State of Michigan

                                                 ORDER
                                                                               Jonathan Tukel
 In re B A Doering, Minor                                                        Presiding Judge

 Docket No.     351631                                                         Deborah A. Servitto

 LC No.         2019-024719-NA                                                 Jane M. Beckering
                                                                                 Judges


               Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.

                Proceedings on remand in this matter shall be given priority on remand until they are
concluded. As stated in the accompanying opinion, the trial court must either order that petitioner provide
reasonable services to respondent, or articulate a factual finding based on clear and convincing evidence
that aggravated circumstances exist such that services are not required. The proceedings on remand are
limited to these issues. The trial court shall decide the issues on remand within 112 days of the Clerk’s
Certification of this order.

               The parties shall promptly file with this Court a copy of all papers filed on remand. Within
seven days after entry, appellant shall file with this Court copies of all orders entered on remand.

               The transcript of all proceedings on remand shall be prepared and filed within 21 days after
completion of the proceedings.



                                                           _______________________________
                                                            Presiding Judge




                                 July 16, 2020
