            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                                                                     UNPUBLISHED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 LILLER, Minor.                                                 August 1, 2019

                                                                     No. 346685
                                                                     Wayne Circuit Court
                                                                     Family Division
                                                                     LC No. 17-000792 - NA


Before: TUKEL, P.J., and JANSEN and RIORDAN, JJ.

PER CURIAM.

        Respondent appeals by right the trial court order terminating his parental rights to the
minor child, JLL, under MCL 712A.19b(3)(a)(ii) (child’s parent has deserted the child for 91 or
more days and has not sought custody of the child during that period), (c)(i) (conditions that led
to the adjudication continue to exist and no reasonable likelihood that they would be rectified
within a reasonable time considering the child’s age), and (j) (reasonable likelihood of harm to
the child if returned to parent). We affirm in part, reverse in part, and remand for further
proceedings.

                                  I. REASONABLE EFFORTS

       On appeal, respondent contends that the trial court did not make reasonable efforts to
provide services for reunification. We disagree.

        Respondent did not preserve this issue for appeal by an objection or contention in the trial
court that the services were inadequate. In re Frey, 297 Mich App 242, 247; 824 NW2d 569
(2012). We review unpreserved issues for plan error affecting respondent’s substantial rights. In
re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008).

        In child protection proceedings, the Department of Health and Human Services (DHHS)
has a duty to expend reasonable efforts to rectify the conditions that led to the child’s removal
and to reunify the child with the respondent unless certain aggravating circumstances exist. In re
Mason, 486 Mich 142, 152; 782 NW2d 747 (2010); In re Frey, 297 Mich App at 247; MCL
712A.19a(2). “The state is not relieved of its duties to engage an absent parent merely because
that parent is incarcerated.” In re Mason, 486 Mich at 152. “The mere present inability to
personally care for one’s children as a result of incarceration does not constitute grounds for


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termination.” Id. at 160. In determining whether the DHHS fulfilled its duties to an incarcerated
parent under the court rules and statutes, this Court considers whether the parent was “afforded a
meaningful and adequate opportunity to participate.” Id. at 152. Although the DHHS has a
responsibility to expend reasonable efforts to provide reunification services, there also exists a
commensurate responsibility on the part of the respondent to participate in the services that are
offered. In re Frey, 297 Mich App at 248.

       In this case, respondent was offered the opportunity to participate in the proceedings.
The record shows that the court and the agency made sufficient efforts while respondent was
incarcerated to ensure that respondent had the opportunity to be present and participate, either by
speakerphone or video link. The court adjourned two hearings when respondent was unable to
be present. When his whereabouts were unknown, the court ordered publication of notice. The
times he was not present at hearings occurred because respondent failed to maintain contact with
the agency, his attorney, and the court when he was released from prison, or there were problems
at the prison when he was incarcerated which prevented him from being present by phone.
Respondent attended the termination hearing by speakerphone and testified on his own behalf.

         The record also shows that a case service plan was created for respondent and was mailed
to him. However, respondent had moved to another prison without informing the DHHS and did
not receive that case service plan. When his whereabouts became known, the case service plan
was again mailed to respondent and he then received it. The DHHS contacted the prisons to find
out what services would be available but had not been able to get that information. Respondent
was informed by the caseworkers when they spoke with him about the programs he was
supposed to engage in. The agency telephoned respondent and maintained contact with him by
letters, informing him of the progress of the case and what he needed to do. Although reasonable
services are generally required when a child is removed, such services cannot be rendered
without the cooperation of the parent. When respondent was incarcerated in Ohio, it was
impossible for the DHHS workers to coordinate any prison services with the treatment plan.

         Additionally, respondent maintained minimal contact with the agency. When respondent
was released from prison, he remained in Ohio without informing the DHHS and his
whereabouts were again unknown. During that time, he made no attempt to contact the DHHS,
comply with the treatment plan, or make contact with JLL. Three months after his release,
respondent was incarcerated again following his conviction for armed robbery. It was only after
he was reincarcerated, shortly before the termination hearing, that the DHHS was able to send
the treatment plan to the address where he would receive it and regained the ability to arrange for
respondent’s presence and participation at the hearings. Respondent reported that there were
very limited services available in the prison, and most were run by the inmates. Respondent
would not be released from this incarceration until 2020. By July 10, 2018, respondent was
moved to a different facility in Ohio. Despite making reasonable efforts, the DHHS had no
ability to provide outside services to an incarcerated person and had no control over the prison or
its policies.

       Evaluating the efforts made by DHHS, we find that the trial court did not clearly err by
concluding that the DHHS made reasonable efforts for respondent while he was incarcerated.
Respondent did not accept his commensurate responsibility because during the three months that
he was released from prison, he did not return to Michigan to try and make contact with JLL or

                                                -2-
with the DHHS. Nor did he inform the DHHS of his whereabouts. Thus, the record shows that
the DHHS made reasonable efforts towards reunification.

                                   II. STATUTORY GROUNDS

        Respondent argues on appeal that there was not clear and convincing evidence to support
the statutory grounds for termination. We disagree.

        On appeal from a termination of parental rights proceeding, this Court reviews the trial
court’s findings of fact for clear error. MCR 3.977(K); In re Sours, 459 Mich 624, 633; 593
NW2d 520 (1999). To terminate parental rights, the DHHS must establish by clear and
convincing evidence the existence of at least one statutory ground for termination found in MCL
712A.19b(3). In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003). Respondent’s parental
rights were terminated under MCL 712A.19b(3)(a)(ii), (c)(i), and (j), which provide:

                 (3) The court may terminate a parent’s parental rights to a child if the
         court finds, by clear and convincing evidence, 1 or more of the following:

                 (a) The child has been deserted under any of the following circumstances:

                                               * * *

                (ii) The child’s parent has deserted the child for 91 or more days and has
         not sought custody of the child during that period.

                                               * * *

                 (c) The parent was a respondent in a proceeding brought under this
         chapter, 182 or more days have elapsed since the issuance of an initial
         dispositional order, and the court, by clear and convincing evidence, finds either
         of the following:

                (i) The conditions that led to the adjudication continue to exist and there is
         no reasonable likelihood that the conditions will be rectified within a reasonable
         time considering the child’s age.

                                               * * *

                 (j) There is a reasonable likelihood, based on the conduct or capacity of
         the child’s parent, that the child will be harmed if he or she is returned to the
         home of the parent.

      JLL and his infant sibling were removed from their mother’s care in May 2017.1
Respondent testified that he did not know that JLL was a temporary court ward until July 2017.


1
    JLL’s mother died during the pendency of this case.


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However, respondent appeared at the continued preliminary hearing on May 24, 2017,
represented by an attorney, and was fully apprised of all the reasons why he was there.
Respondent testified that the last time he spoke to JLL was around Christmas of 2015. He
testified that he had been released from prison in the beginning of 2015 and had provided for
JLL until the middle of 2015. He was reincarcerated in early 2016 and was released in June
2017, about one month after JLL was removed from his mother’s care. Respondent was
reincarcerated by September 2017. During his 2017 release, he did not come to Michigan and
did not contact the DHHS. He did not contact or provide any support for JLL. Once back in
prison, he did not write, call, or send any financial support to JLL. Failure to make “any
substantial effort to communicate with [the child] or obtain assistance in regaining custody of
[the child] for a period well beyond the statutory period” constitutes grounds for termination
under MCL 712A.19b(3)(a)(ii). In re TM, 245 Mich App 181, 193-194; 628 NW2d 570 (2001).
We find that there was clear and convincing evidence to support termination under MCL
712A.19b(3)(a)(ii).

        Respondent had not provided for JLL most of the child’s life, including the limited time
that respondent was not incarcerated. At the time of the termination hearing, JLL had spent most
of his life with his maternal grandmother, who reported that respondent had not provided
anything for him. We find that there was clear and convincing evidence that the conditions that
led to the adjudication continued to exist and there was no reasonable likelihood that they would
be rectified within a reasonable time. Therefore, the trial court did not clearly err in finding clear
and convincing evidence to support termination under MCL 712A.19b(3)(c)(i).

         There was also clear and convincing evidence to support termination of respondent’s
parental rights under MCL 712A.19b(3)(j). Respondent had a substantial criminal history,
including drug offenses. He had never provided for JLL. When released, he did nothing to
facilitate a relationship with his son; he stayed in Ohio and did not inform the DHHS of his
whereabouts. These actions demonstrate that respondent’s priority was pursing criminal
endeavors rather than providing for JLL. Based on his conduct, there was clear and convincing
evidence that there was a reasonable likelihood that JLL would be harmed if he was placed with
respondent.

                                      III. BEST INTERESTS

        Respondent argues, and petitioner concedes that the trial court clearly erred in finding by
a preponderance of the evidence that termination of his parental rights was in JLL’s best
interests. We agree.

        Once the petitioner has established a statutory ground for termination by clear and
convincing evidence, the trial court must find that termination is in the child’s best interests
before it can order termination of parental rights. MCL 712A.19b(5). Whether termination of
parental rights is in the best interests of the child must be proven by a preponderance of the
evidence. In re Moss, 301 Mich App 76, 88-90; 836 NW2d 182 (2013). This Court reviews a
trial court’s decision regarding a child’s best interests for clear error. In re Laster, 303 Mich
App 485, 496; 845 NW2d 540 (2013).



                                                 -4-
        The trial court failed to address whether termination was appropriate in light of the fact
that JLL was placed with his maternal grandmother. Although the issue was raised by
respondent, the trial court failed to recognize that JLL’s sibling, also respondent’s son, lived with
JLL in the maternal grandmother’s home under a guardianship, and how this situation would
impact upon JLL. “A trial court’s failure to explicitly address whether termination is appropriate
in light of the [child’s] placement with relatives renders the factual record inadequate to make a
best-interest determination and requires reversal.” In re Olive/Metts, 297 Mich App 35, 43; 823
NW2d 144 (2012). Therefore, although we affirm the trial court’s finding of statutory ground to
terminate respondent’s parental rights, we reverse the court’s best-interest determination and
remand for further proceedings on the child’s best interests only.

                                       IV. CONCLUSION

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

                                                              /s/ Jonathan Tukel
                                                              /s/ Kathleen Jansen
                                                              /s/ Michael J. Riordan




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