8.4Reasonable Efforts to Prevent or Eliminate Removal of Child Findings

DHHS is obligated to make reasonable efforts to reunify a child and the child’s family in all cases except those cases involving an aggravated circumstance listed in MCL 712A.19a(2). In re Simonetta, 340 Mich App 700, 707 (2022). There must be a judicial determination that a child has been subjected to aggravating circumstances before the DHHS is excused from its duty to make reasonable efforts to prevent a child’s removal. In re Smith-Taylor, 339 Mich 189, 200 (2022). “The mere fact of imprisonment is not one of [those aggravating circumstances].” In re Dixon (On Reconsideration), ___ Mich App ___, ___ (2023). In Dixon, the Court held that the DHHS was obligated to make reasonable efforts at reunification with the child’s father after the mother’s parental rights were terminated, even though the father was incarcerated. Id. at ___. A trial court is required “to permit ‘regular and frequent parenting time’ when a child is removed from a parent’s care,” despite that the parent is incarcerated. Id. at ___, quoting MCL 712A.13a(13) and MCL 712A.18f(3)(e). In Dixon, the DHHS failed to arrange for the father to have video visits with his child as the trial court had ordered. Dixon, ___ Mich App at ___. Further, the DHHS did little to provide the incarcerated father with services “even after he was named as a respondent.” Id. at ___. “At the very least, the caseworker must provide available workbooks for father to complete, as has been done in many other cases involving incarcerated parents.” Id. at ___.

If the court orders foster care placement, it must find, among other factors, that “[c]onsistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child.” MCR 3.965(C)(2)(d). See also MCR 3.965(C)(4). A court is also required to make a finding that reasonable efforts have been made to avoid non-emergency removal of a child from his or her home and placement of the child in foster care to establish a child’s eligibility for federal foster care maintenance payments under Title IV-E of the Social Security Act. 42 USC 672(a)(1).¹ 

Accordingly, the court must find that reasonable efforts were made “to maintain the family unit and prevent the unnecessary removal of a child from his/her home, as long as the child’s safety is assured[.]” 45 CFR 1356.21(b). The court must make a child’s health and safety its paramount concern when making reasonable efforts determinations. 45 CFR 1356.21(b); MCR 3.965(C)(4).

“When the court has placed a child with someone other than the custodial parent, guardian, or legal custodian, the court must determine whether reasonable efforts to prevent the removal of the child have been made or that reasonable efforts to prevent removal are not required.” MCR 3.965(C)(4). The court must make a reasonable efforts determination at the earliest possible time, but no later than 60 days of the child’s removal from the home. MCR 3.965(C)(4); 45 CFR 1356.21(b)(1)(i). The court “must state the factual basis for the determination in the court order.” MCR 3.965(C)(4). “Nunc pro tunc orders or affidavits are not acceptable.” Id.

Note: The court’s failure to make a reasonable efforts determination within 60 days of the child’s removal will result in the child’s ineligibility for federal foster care maintenance payments under Title IV-E during the child’s stay in foster care. 45 CFR 1356.21(b)(1)(ii).

The court’s 60-day period for making a reasonable efforts determination begins on the date the child was actually removed from his or her home. 45 CFR 1356.21(b)(1)(i). If the child was living with a relative before the court proceedings and the court places the child with that relative, the date of the court order for removal from the constructive custody of a parent is the date of actual removal. 45 CFR 1356.21(k)(1)(ii).

A.Reasonable Efforts Not Required for Child’s Removal

Reasonable efforts to prevent a child’s removal from his or her home are not required if the court has determined any of the following:

“(a) the parent has subjected the child to aggravated circumstances as listed in . . . MCL 722.638(1) and [MCL 722.638](2);^[2] or

(b) the parent has been convicted of 1 or more of the following:

(i) murder of another child of the parent,

(ii) voluntary manslaughter of another child of the parent,

(iii) aiding or abetting, attempting, conspiring, or soliciting to commit such a murder or such a voluntary manslaughter, or

(iv) a felony assault that results in serious bodily injury to the child or another child of the parent; or

(c) parental rights of the parent with respect to a sibling have been terminated involuntarily; or

(d) the parent is required to register under the Sex Offender[s] Registration Act [(SORA), MCL 28.721 et seq.]”³ MCR 3.965(C)(4). See also 45 CFR 1356.21(b)(3).

Note: If the court determines that reasonable efforts to reunite the family or prevent removal are not required, an initial permanency planning hearing must be held within 28 days of that determination. MCR 3.976(B)(1). See Section 16.3(A).

For example, where the trial court’s stated findings indicated that it “determined that [the minor child] suffered severe physical abuse (respondent’s excessive consumption of alcohol while pregnant) that resulted in a life-threatening injury ([the minor child’s fetal alcohol syndrome] symptoms and the accompanying medical issues), and that respondent was the perpetrator of this abuse,” “[t]hese findings amount[ed] to a judicial determination that respondent subjected [the minor child] to aggravated circumstances as provided in MCL 722.638(1) and [MCL 722.638(2)]”; “[t]herefore, under MCL 712A.19b(2)(a), reasonable efforts were not required[.]” In re Rippy, 330 Mich App 350, 358-359 (2019).

But see In re Simonetta, 340 Mich App 700, 703 (2022), where the Court held that “[m]aternal drug use during pregnancy does not give rise to an aggravated circumstance permitting the termination of parental rights under any circumstances because a fetus is not a ‘child’ under the Probate Code.” The Court acknowledged that in Rippy, 330 Mich App at 357-359, “th[e] Court upheld a termination of parental rights at the initial disposition based on an assumption that a mother’s prenatal drug use was an aggravated circumstance.” Simonetta, 340 Mich App at 712 n 4. However, the Court in Simonetta distinguished its disposition in the instant case from its disposition in Rippy. Id.

Simonetta first noted that MCL 722.638(1) did not apply—and so reasonable efforts were required—because the record in the instant case “d[id] not support that [the infant] sustained any consequences of respondent’s prenatal use of controlled substances.” Simonetta, 340 Mich App at 708. The Court then stated that the absence of evidence in the case was “not the only reason” that MCL 722.638(1) was not applicable. Simonetta, 340 Mich App at 708. The Court determined that “MCL 722.638(1)(a)(iii) does not apply to the ‘abuse’ of a fetus because a fetus is not a ‘child’ as that term is defined in the criminal law or the juvenile code.”⁴ Simonetta, 340 Mich App at 708. The Court explained the distinction between its dispositions in Rippy and Simonetta: “[T]he majority in Rippy, id. at 359 n 2, declined to consider whether a ‘fetus’ falls within the definition of a ‘child’ as contemplated in MCL 722.638(1), and therefore reached no binding opinion on that question.” Simonetta, 340 Mich App at 712 n 4.

The Court elaborated: “[T]he aggravating circumstances identified in MCL 722.638(1)(a)(iii)—’battering, torture, or other severe physical abuse’—apply to children living outside the womb.” Simonetta, 340 Mich App at 710. The Court noted also that the other aggravating circumstances described in MCL 722.638(1)(a) “pertain to children who have been born, and not fetuses[.]” Simonetta, 340 Mich App at 710. According to the Court, “[b]y excluding fetuses from the definition of a ‘child,’ our Legislature has recognized that drug use during pregnancy does not automatically mean that a mother will abuse her child after birth.” Id. at 711.

The respondent need not be the perpetrator of the abuse in order for the aggravating circumstances in MCL 722.638(1)-(2) to apply. In re Smith-Taylor, 339 Mich App 189, 202 (2021), rev’d on other grounds ___ Mich ___ (2022). “The plain language of MCL 722.638(2) [does] not limit its application to the suspected perpetrator of the abuse.” In re Smith-Taylor, 339 Mich App at 202. A respondent who does not perpetrate the abuse but who “plac[es] the child at an unreasonable risk of harm due to a failure to take steps to eliminate a risk of harm,” may have his or her parental rights terminated at the initial dispositional hearing. Id. at 202. When aggravating circumstances are present, reasonable efforts to reunify a child and a parent are not required. Id. at 202.

B.Required Documentation for Reasonable Efforts Finding

The court’s determination “regarding . . . reasonable efforts to prevent removal . . . including judicial determinations that reasonable efforts are not required, must be explicitly documented and must be made on a case-by-case basis and so stated in the court order.” 45 CFR 1356.21(d). See also MCR 3.965(C)(4).

Additionally, 45 CFR 1356.21(d) states:

“(1) If the reasonable efforts . . . judicial determination[ is] not included as required in the court orders identified in . . . [45 CFR 1356.21(b)], a transcript of the court proceedings is the only other documentation that will be accepted to verify that th[is] required determination[ has] been made.

(2) Neither affidavits nor nunc pro tunc orders will be accepted as verification documentation in support of reasonable efforts . . . judicial determinations.

(3) Court orders that reference State law to substantiate judicial determinations are not acceptable, even if State law provides that a removal must be based on a judicial determination . . . that removal can only be ordered after reasonable efforts have been made.”

For a description of services that may be offered to families to prevent a child’s removal from his or her home, see the Department of Health and Human Services’s (DHHS’s) Children’s Protective Services Manual (PSM), CPS Supportive Services PSM 714-2, and the DHHS’s Children’s Foster Care Manual (FOM), Case Planning FOM 722-06.