-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re Jones, Minors. June 13, 2017

No. 335232 Ontonagon Circuit Court Family Division

LC No. 13-000013-NA

Before: S WARTZLE , P.J., and S AAD and O’C ONNELL , JJ.

P ER C URIAM

.

Previously, in February 2015, the trial court terminated the p arental rights of respondentmother to he two daughters. In a prior appeal, this Court reje cted respondent’s claims that (1) her attorney provided ineffec tive assistance throughout the chi ld protection proceedings, and (2) petitioner failed to p rovide sufficient re unification services. In re Jones , unpublished opinion per curiam of the Court of Appeals, issued October 27, 2015 (Docket No. 326252), slip op at 3-8. This Court further held that respondent was precluded from chal lenging the trial court’s exercise of jurisdiction over the children on the basis of respondent’s admissions. Id. at 3. However, this
Court held that the trial court erred by failing to consider ex plicitly in its best-interest determination the option of continuing placement of the childre n with respondent’s aunt and
uncle. Id. at 6. Accordingly, this Court remanded the case for redetermi nation of the children’s
best interests. Id. at 8. Respondent appealed this Court’s decision to our Suprem e Court, which vacated this Court’s decision, and also vacated the trial court ’s orders “adjudicating jurisdiction
over the children” and “termina ting the respondent ’s parental r ights to the children.” In re Jones

, 499 Mich 862; 874 NW2d 129 (2016). The Supreme Court remanded the case “to the circuit court for a new adjudication determination.” Id.

On remand, an adjudication trial was held and a jury found tha t a statutory basis for jurisdiction over the children existed pur suant to MCL 712A.2(b ). The trial court then conducted a dispositional hearing on petitioner’s request to terminate re spondent’s parental rights. Following the hearing, the trial court issued an order terminat ing respondent’s parental rights to the children pursuant to MCL 712A.19b(3)(b)( i ), (c)( i ), (g), and (j). Responde nt again appeals as of right, and we affirm.

Respondent argues on appeal that the trial court erred in exer cising jurisdiction over the children because, during the 2016 adjudication trial on remand from the Supreme Court, petitioner presented evidence relating solely to respondent’s c onduct and the children’s circumstances preceding the September 2014 order removing the c hildren from respondent’s-2- care. Respondent contends that because no new allegations were made concerning her fitness as a parent since September 2014, and no evidence was presented co ncerning her circumstances in 2016, petitioner failed to show that she was an unfit parent at the time of the adjudication trial. She further argues that the trial court erred by denying her mo tion to reinstate supervised visitation with the children after the case was remanded by the Supreme Court, which thereby prevented her from providing the jury with an opportunity to “h ear about the assessment of any current parent/child bonds to be able to justify its decision i n granting the Court jurisdiction” and instead required the jury to rel y on “a stale impression based on [respondent’s] actions in the past.” Respondent also argues that the trial court improperly terminated her parental rights without providing her with an opport unity to participate in add itional reunification services.

Although the general issue of jur isdiction over the children w as raised and decided below, respondent did not argue below that it was improper for petitioner to rely solely on her past conduct, without evidence of h er current circumstances, to establish jurisdiction. Therefore, that argument is unpreserved. Polkton Charter Twp v Pellegrom , 265 Mich App 88, 95; 693 NW2d 170 (2005). Likewise, respondent failed to preserve her a rgument that petitioner was required to provide additional reunification efforts following the Supreme Court’s remand order.

This Court reviews a jury’s ver dict regarding jurisdiction ove r the children to determine if a preponderance of the evidenc e satisfied the statutory requ irements of MCL 712A.2(b). In re

BZ , 264 Mich App 286, 295; 690 NW2d 505 (2004); In re S R , 229 Mich App 310, 314; 581 NW2d 291 (1998). “Generally, whether child protective proceedi ngs complied with a respondent’s substantive and proc edural due process rights is a question of law that this Court
reviews de novo.” In re TK , 306 Mich App 698, 703; 859 NW2d 208 (2014). Unpreserved claims of error, however, are reviewed for plain error affectin g respondent’s substantial rights.

Id.

“In Michigan, child protective proceedings comprise two phases : the adjudicative phase and the dispositional phase.” In re Sanders , 495 Mich 394, 404; 852 NW2d 524 (2014). “Generally, a court determines w hether it can take jurisdiction over the child in the first place during the adjudicative phase.” Id . Jurisdiction is established pursuant to MCL 712A.2(b). Id

. As relevant to the instant case, MCL 712A.2(b) provides that a trial court has jurisdiction over a child less than 18 years of age unde r the following circumstanc es:

(1) Whose parent or other person legally responsible for the c are and maintenance of the juvenile, when able to do so, neglects or re fuses to provide proper or necessary support, education, medical, surgical, or o ther care necessary for his or her health or morals, who is subject to a substantia l risk of harm to his or her mental well-being, who is abandoned by his or her parent s, guardian, or other custodian, or who is wit hout proper custody or guardiansh ip . . . . [or]

* * *

(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depr avity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile t o live in.-3- The rules of evidence apply at an adjudication trial. MCR 3.97 2(C)(1); In re Sanders , 495 Mich at 405; In re AMAC , 269 Mich App at 536; 711 NW2d 426 (2006).

Respondent does not contend that the evidence of her conduct r elated to the filing of the 2014 removal petition was inadmissible. Instead, she argues th at petitioner should not have been permitted to rely on this evidence as the only measure of her p arental fitness. She contends that, considering the length of time the children had been out of her care, the evidence of her past conduct was no longer relevant to determining her current fitne ss as a parent, and therefore, petitioner should have been required to present evidence bearin g on her fitness at the time of the adjudication trial.

Respondent’s argument appears to be predicated on her belief t hat there is an unstated limitation in the Supreme Court’s remand order in the case. An d yet, nothing in the remand order required the trial court to ignore the allegations or und erlying evidence that led to the initial filing of the petition and to wh ich respondent offered pleas of admission, albeit through improper procedure. Moreover, petitione r’s reliance on evidence related to and predating the September 2014 petition to remove the children is consistent with In re MU , 264 Mich App 270, 279; 690 NW2d 495 (2004), in which this Court held that the statute gove rning jurisdiction, MCL 712A.2, “speaks in the present tense, and, therefore, the trial court m ust examine the child’s situation at the time the petition was filed.” Under In re MU , petitioner appropriately relied on respondent’s
circumstances at the time the children were removed to evaluate respondent’s fitness as a parent for purposes of adjudication. Be cause evidence of respondent’s circumstances in 2016 would not be probative of the children’s situation at the time the re moval petition was filed in September 2014, that there may have been little or no evidence of respondent’s current circumstances does not undermine the jury’s verdict. A prepond erance of the evidence supports a finding that, despite extensive efforts from petitioner, resp ondent either refused to participate in services, or did not benefit fr om them. Moreover, respondent h ad the opportunity to offer her own evidence that she had materially changed her behavior durin g the pendency of her prior appeal, but she failed to do so. 1

In sum, it was not improper for petitioner to rely on evidence of respondent’s
circumstances at the time of t he September 2014 removal petitio n for purposes of adjudication, and the jury’s decision that sta tutory grounds for jurisdiction existed is supported by a preponderance of the evidence.

We also reject respondent’s argum ent that petitioner was requi red to provide her with
additional reunification services after the case was remanded b y the Supreme Court. Respondent contends that services were required because the case did not i nvolve any aggravating circumstances relieving petiti oner of that responsibility. We disagree.

1 In fact, evidence offered during the subsequent dispositional hearing showed that respondent did not have a job and that her residence was filthy, with hole s in the wall, marijuana plants growing inside, and minimal food available.-4- In general, petitioner must make reasonable efforts to reunify a child with his or her family unless aggravating circum stances are present. MCL 712A. 19a(2); In re Plump , 294 Mich App 270, 272; 817 NW2d 119 (2011). Failure to provide such ser vices may prevent the trial court from having sufficient evidence to terminate parental rig hts. In re Mason , 486 Mich 142, 166; 782 NW2d 747 (2010). Yet, even in the absence of statutor y aggravating circumstances, petitioner need not provide services to every family in every s ituation, “but the statute requires the agency to jus tify the decision.” In re Plump , 294 Mich App at 272. See also MCL 712A.18f(1)(b). In particular, “[p]etitioner . . . is not requ ired to provide reunification services when termination of parental rights is the agency’s goal.” In re HRC , 286 Mich App 444, 463; 781 NW2d 105 (2009), citing In re Terry , 240 Mich App 14, 25 n 4; 610 NW2d 563 (2000). See
also In re LE , 278 Mich App 1, 21; 747 NW2d 883 (2008) (“[s]ervices need not be provided
where reunification i s not intended”).

In an amended petition filed on remand, petitioner requested t hat the trial court exercise jurisdiction over the children an d terminate respondent’s paren tal rights. The trial court authorized the petition. Because termination was the goal, pet itioner was not required to offer respondent additional reunification services, as long as it cou ld justify its decision. In re LE , 278 Mich App at 21.

The case history justified petitioner’s decision to forgo addi tional reunification services. Throughout the case, respondent had been offered extensive serv ices, and either failed to participate in them or failed to benefit from them. Moreover, after the September 2014 incident that led to the children’s removal, respondent was offered the opportunity to continue with counseling services, which she had previously attended only spo radically, but she declined that opportunity and she had not completed any services since August 14, 2014. It is clear from the earlier proceedings that prior attempts to rehabilitate respond ent were unsuccessful, and equally clear that there was no basis for believing that any additional services would be productive or successful. In sum, additional services were not required, bot h due to petitioner’s goal of termination and the fact that pe titioner had already made reaso nable efforts toward reunification in this case, but respondent faile d in her duty to participate in, or benefit from, the services provided.

Respondent next argues that she should have been granted paren ting time with the children after the case was remanded by the Supreme Court, both because she was entitled to show that she no longer posed a t hreat to the children’s safety and because a therapist’s recommendation that the children would likely be harmed if visi tation was reinstated was based
on “stale” information.

In general, unless parenting tim e would be harmful to the chil d, the parent shall have parenting time no less than once every seven days. MCL 712A.18 f(3)(e). MCR 3.977(D) provides, however, that “[i]f a petition to terminate parental rights to a child is filed, the court may suspend parenting time for a parent who is a subject of the petition.” Likewise, MCL 712A.19b(4) provides that “[i]f a petition to terminate parenta l rights to a child is filed, the court may suspend parenting time for a parent who is a subject of the petition.” This Court has held that “[t]he suspension of parenting time once a petition to ter minate parental rights is filed requires no finding of harm and is presumptively in the child’s best interest” because of the-5- drastic measures a parent facing termination might be tempted t o undertake, among other

reasons. In re Laster , 303 Mich App 485, 489; 845 NW2d 540 (2013).

In the instant case, because petitioner had requested terminat ion of respondent’s parental rights, the trial court was not required to make a finding of h arm. The trial court did, however, rely on letters submitted by the children’s foster parents and their therapist to decide that resumption of parenting time before the adjudication hearing co uld traumatize the children, and again ordered that visitation be suspended. The trial court al so based its decision on respondent’s admission that, if pa renting time were to resume, there would be a little “regression.” The court’s findi ng that the children would be t raumatized if visitation was reinstated is supported by the evi dence presented and thus is n ot clearly erroneous. Also, while respondent argues that the thera pist’s and the foster parents’ correspondence was based on stale information because respondent had not seen the children for so me time, these documents were based on the witnesses’ recent observations of the children, no t the circumstances that existed in 2014. Thus, the information was not stale.

In addition, while respondent ar gues that the suspension of pa renting time prevented the jury from considering any recent parent/child bonds, she provid es no legal support for her position that it was appropriate for the jury to consider this in determining the existence of a statutory basis for jurisdiction pursuant to MCL 712A.2(b). As explained previously, it was appropriate for petitioner to rely on the circumstances that ex isted at the time the children were removed in September 2014 to evaluate respondent’s fitness as a parent for purposes of adjudication. In re MU , 264 Mich App at 279. Thus, respondent has not established th at the trial court erred by denying her motion to reinstate parenting time a fter the case was remanded by the Supreme Court.

Finally, in a reply brief, respondent raises additional argume nts regarding whether the trial court erred by unduly re lying on her past conduct to find that the statutory grounds for termination were established by clear and convincing evidence. She also raises claims of ineffective assistance of counsel. These issues are not proper ly before this Court. As explained
in Bronson Methodist Hosp v MI Assigned Claims Facility , 298 Mich App 192, 199; 826 NW2d 197 (2012):

Reply briefs must be limited to “rebuttal of the arguments in t he appellee’s or cross-appellee’s brief . . . .” MCR 7.212(G); see also Kinder Morgan Michigan v City of Jackson , 277 Mich App 159, 174; 744 NW2d 184 (2007). “[R]aising an issue for the first time in a reply brief is not sufficient to present the issue for appeal.” Blazer Foods, Inc v Rest aurant Properties, Inc, 259 Mich App 241, 252; 673 NW2d 805 (2003).-6- Accordingly, we decline to cons ider the newly raised issues in respondent’s reply brief.

Affirmed.

/s/ Brock A. Swartzle /s/ Henry William Saad
/s/ Peter D. O'Connell