Termination without requiring the Department of Health & Human Services (DHHS) to make reasonable reunification efforts; In re Simonetta; Aggravating circumstances exception; Effect of the DHHS’s failure to allege any aggravating circumstances; “Child abuse” (MCL 722.622(g))

The court held that given “the lack of both (1) reasonable reunification efforts towards respondent[-mother] and (2) a judicial determination by clear and convincing evidence supporting an aggravated circumstance, the trial court plainly erred in terminating [her] parental rights at initial disposition.” Thus, it vacated the termination order and remanded for the trial court to either order that the DHHS provide respondent with reasonable services “‘or articulate a factual finding based on clear and convincing evidence that aggravated circumstances exist such that services are not required.’” Because she failed to “preserve a reasonable-reunification-efforts issue for appeal,” the court reviewed the trial court’s judgment for plain error. The “DHHS did not allege any aggravating circumstances that would warrant termination at the initial disposition, let alone cite MCL 712A.19a(2) or MCL 722.638 in its petition; rather, it requested termination under” §§ (b)(ii), (g), and (j). The trial court also did not “make any factual findings regarding aggravated circumstances sufficient to terminate respondent’s parental rights without providing reunification services. Indeed, its order provides the opposite, concluding (erroneously) that ‘Reasonable efforts were made to preserve and unify the family to make it possible for the child(ren) to safely return to the child(ren)’s home. Those efforts were unsuccessful.’” In addition, upon its independent review of the record, the court could not conclude at this point that it supported “the existence of aggravated circumstances sufficient to relieve DHHS’s duty to provide reasonable efforts toward reunification.” Considering the definition of “child abuse” in the Child Abuse and Neglect Protection Act, the court noted that there was “no indication respondent or her boyfriend were abusing the children as the statute defines that term. CDF’s death, while tragic, appears to be accidental, and nothing in the record demonstrates otherwise. Further, there is no evidence supporting other potential aggravating factors, like termination of rights to another child, certain serious convictions, or registering as a sex offender.”