If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

- 1

- 

### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

UNPUBLISHED In re D. D. FIELDS, Minor. June 16, 2022

No. 358792 Wayne Circuit Court Family Division LC No. 2019

- 001276

- NA

Before: B OONSTRA , P .J., and G ADOLA and H OOD , JJ.

P ER C URIAM

. Respondent appeals as of right the trial court ’ s order removing her minor child

, D D F

, from her care. We affirm.

I. FACT S

At the time D D F was born, respondent was subject to a case service plan in separate child protective proceedings regarding respondent ’ s o lder child , NF. NF was removed from respondent ’ s care two years earlier because of respondent ’ s ongoing substance abuse . Since that time, respondent had failed to comply with the case service plan as required to regain custody of NF. Specifically, respondent repeatedly failed to participate in required drug testing and continued using substances ; when she participate d in drug testing she fr equently tested positive for cocaine, fentanyl, and marijuana. Respondent continued to test positive for substances while pregnant with D D F, and admitted to police officers to drinking alcohol the week before D D F ’ s birth.

Shortl y after D D F ’s birth, pet itioner, Department of Health and Human Se r vices (DHHS), petitioned the trial court to remov e D D F from respondent’s care. In the petition, Child Protective Services investigator Dora Woods alleged that respondent was using illegal drugs and alcohol while pregnant with D D F and failing to comply with the case service plan established regarding her older child. At the preliminary hearing, Woods testified that it was contrary to D D F’s welfare for D D F to remain in respondent’s care because respondent was failing to comply with the case service plan and was continuing to use illegal substances . Wood s testified that in an effort to investigate D D F’s well

- being, she had repeatedly called and te x ted respondent’s pho ne and also had attempted to visit respondent’s home, but respondent refused to respond. Wood s testified that as a result of respondent’s failure to c ooperate with her efforts to investigate

, Woods was unable to provide respondent r eunification services r egarding D D F or to assess D D F’s health. In contrast- 2

-

to Woods’ testimony, r espondent testified that she was making progress in her case service plan regarding NF, that she was a bstaining from substance use, and that contrary to the police report she did no t drink alcohol the week before D D F’s birth.

At the conclusion of the preliminary hearing, the trial court’s hearing referee found that it was clearly contrary to D D F’s welfare to remain in respondent’s care. The hearing referee found that evidence wa s presented that respondent had been using substances and alcohol while pregnant with D D F and contrary to the requirements of the case service plan in place regarding her older child, NF. At the conclusion of the preliminary hearing, t he trial court entered an order authorizing the petition with respect to respondent, authorizing D D F ’ s removal

, and plac ing D D F in foster

care

. The trial court specifically found that it was contrary to the welfare of the child to remain in respondent’s home and that re asonable efforts had been made to prevent removal of D D F from the home. R espondent now appeals.

II. DISCUSSION

Respondent contends that the trial court erred by remov ing D D F from her care because there was in sufficient evidence to support removal unde r the requirements of MCL 712A.13a(9) and MCR 3.965(C)

. Respondent also argues that petitioner failed to make reasonable efforts to prevent D D F’s removal. We disagree.

We review for clear error a trial court ’ s factual findings in child protective proceedings. MCR 2.613(C); In re Benavides , 334 Mich App 162, 167; 964 NW2d 108 (2020). A finding of fact is clearly erroneous when the reviewing court has a definite and firm conviction that a mistake

was made. I

d

. We review t he trial court’s applicat ion of statutes and court rules de novo. In re Sanders , 495 Mich 394, 404; 852 NW2d 524 (2014).

A fter a preliminary investigation into allegations of child abuse or neglect

, the DHHS may petition the Family Division of the circuit court to take jurisd iction of a child when child abuse or neglect is suspected. In re Ferranti , 504 Mich 1, 15; 934 NW2d 610 (2019). Once the trial court receives the petition, typically the trial court must hold a preliminary hearing to decide whether to authorize the fili ng of the petition and, if authorized, whether the child should “ remain in the home, be returned home, or be placed in foster care pending trial. ” MCR 3.965(B)(12); see also In re Benavides , 334 Mich App at 167. Under MCL 712A.13a(9) and MCR 3.965(C)(2), t he trial court may order placement of the child into foster care only if it finds all of the following:

(9) The court may order placement of the child into foster care if the court finds all of the following conditions :
(a) Custody of the child with the parent presents a substantial risk of harm to the child ’ s life, physical health, or mental well

- being.

(b) No provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from risk as desc ribed in sub division (a).

(c) Continuing the child ’ s residence in the home is contrary to the child ’ s welfare.- 3

-

(d) Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child.

(e) Conditions of child custody away from the parent are adequate to safeguard the child ’ s health and welfare. [MC L 712A.13a(9) .] 1

In addition, under MCR 3.965(C)(3) and (4), if the trial court orders that the child be placed in foster care, the trial court must find that “ it is contrary to the welfare of the child to remain at home, ”

. . . and that “ reasonable efforts to prevent the removal of the child have been made. ” 2 In

re Benavides , 334 Mich App at 168 (quotation marks and citation omitted)

. In this case, the trial court explicitly found in its order entered following the preliminary hearing that it was contrary to the welfare of D D F to remain in the home and that reasonable efforts were made to prevent the removal of D D F from the home , thereby complying with MCR 3.9 65(C)(3) and (4)

. With respect to the five requirements of MCL 712A.13a(9) and MCR 3.965(C)(2), the trial court found during the preliminary hearing that being in respondent’s care
p resented a n ongoing risk of harm to D D F because of respondent’s continued illegal drug use, that continuing in respondent’s home was contrary to D D F’s welfare, that the only adequate arrangement at that point was removal of D D F from respondent’s care and placement in appropriate foster care adequate to safeguard the child, and that under the circumstances petitioner had made reasonable efforts to prevent the need for D D F’s removal from the home. The trial court thereby satisfied the requirements of MCL 712A.13a(9) and MCR 3.965(C)(2).

Respondent argues, however, that the tria l court erred by removing D D F from her care because i nsufficient evidence was presented to support removal and that petitioner improperly relied upon hearsay evidence presented by Woods to prove respondent’s prenatal substance use

. Respondent’s argument t hat the trial court erroneously relied on Woods’s testimony to establish a factual predicate to remove D D F is unpersuasive because the trial court’s findings at a preliminary hearing “ may be made on the basis of hearsay evidence that possesses adequate ind icia of trustworthiness .” MCR 3.965(C)(3). Accordingly, the trial court could consider the testimony of Woods , which was based in part on information from respondent’s drug

- screen reports and a police report , to demonstrate that respondent abused substan ces while pregnant with D D F.

Moreover, there was ample evidence that remaining in respondent’s home was contrary to D D F’s welfare. The evidence suggested that respondent had been using illegal substances since at least two years earlier when NF was rem oved from her care. A lthough services were offered for two years, respondent nonetheless was using illegal substances and alcohol shortly before D D F was born, suggesting that she was unable or unwilling to end her substance use even though she had been of

fered services to help her do so. A parent ’ s failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide proper care and custody for the child and that the child will be harmed if returned to the paren t ’ s home

. In re Kaczkowski , 325

1 MCR 3.965(C) is substantially the same as MCL 712A.13a(9).

2 There are certain enumerated exceptions to th e reasonab le

- efforts requirement , see MCL 712A.19a(2) and MCR 3.965(C)( 4) , none of which apply in this case.- 4

-

Mich App 69, 77; 924 NW2d 1 (2018). The trial court therefore did not err in finding that respondent ’ s substance abuse during her pregnancy and her failure to address her substance abuse as part of reunification efforts with NF demonstrated a substantial risk of harm to D D F. See In re Benavides , 334 Mich App at 169

- 170 (explaining that the failure to benefit from a court

- ordered treatment plan supports removal of a child). Although respondent denied the allegations of

s ubstance abuse, we defer to the trial court’s assessment of witness credibility. See MCR 2.613(C); In re Kellogg , 331 Mich App 249, 253 ; 952 NW2d 544 (2020)

. We conclude that the trial court’s factual findings were supported by the evidence presented. W e also observe that t he purpose of child protective proceedings is to protect the child. In re Richardson , 329 Mich App 232, 254; 961 NW2d 499 (2019) . In this case, respondent ’ s conduct demonstrated she was not prepared to place D D F ’ s needs over her own even shortly before his birth. 3

R espondent also contends that petitioner failed to make reasonable efforts to prevent D D F’s removal. R espondent ’ s failure to communicate with the child protective services investigator , however, renders respondent’s a rgument unpersuasive. Investigator Woods testified that she tried numerous times to reach respondent by phone, by text, and by visiting her home in
person, and attempted to contact respondent through police and through the hospital ; she was never able to reach respondent and respondent did not respond to messages. Petitioner cannot offer respondent services aimed at preventing removal if respondent refuses contact by petitioner. The evidence suggests that respondent’s refusal to cooperate with petitioner was intentional because respondent had been engaged in a case service plan for two years regarding her older child and therefore was aware of what efforts petitioner would expect her to make. As the trial court noted, petitioner previously provided respo ndent drug screens, drug counseling, and parenting classes in connecti on with the child protective proceedings relating to respondent’s older child, but respondent failed to comply with the offered services. Although petitioner had a responsibility to mak e reasonable efforts to prevent removal of the child, this Court has explained in the context of reunification that parents have a commensurate responsibility to participate in the services offered. See In re Atchley

,

___ Mich App

___, ___ ;

___ NW2d

___ ( 20 22) (Docket Nos. 358502, 358503); slip op at 2. The trial court did not clearly err by authorizing D D F’s removal from respondent’s

care.

Affirmed.

/s/ Mark T. Boonstra /s/ Michael F. Gadola /s/ Noah P. Hood

3 We note that respondent’s parental rights to D D F have not been terminated; rather, D D F was removed from respondent’s home for his safety, and respondent now has the opportunity to demonstrate adherence to her case service plan to reunite with D D F.