Termination at initial disposition without reasonable reunification efforts; In re Barber/Espinoza; “Aggravated circumstances”; MCL 712A.19a(2)(a); MCL 722.638(1) & (2); “Serious physical harm” (MCL 750.136b(1)(f)); “Child abuse” (MCL 722.622(g)); Claimed improper supervision & unfit home environment; Plain error review

In this case arising from one child accidentally shooting another with an unsecured gun in the home, the court held that the trial court plainly erred in terminating respondents’ parental rights at initial disposition without reasonable reunification efforts. None “of the statutory exceptions excusing such efforts were properly found to exist.” Thus, the court vacated the termination order and remanded. Respondents’ 21-month-old child (M) was shot by his then-six-year-old cousin while in respondents’ care. The court noted that parental rights may be terminated at initial disposition without reasonable reunification efforts “‘only in rare circumstances provided by statute.’” The trial court here “indicated in its written order following the preliminary hearing that it found aggravated circumstances under MCL 722.638(1) and (2) existed such that DHHS was not required to make reasonable efforts toward reunification. But [it] never articulated the factual basis for that apparent conclusion or how any such factual basis met the clear-and-convincing-evidence standard.” It failed to “mention or purport to address ‘aggravated circumstances’ at the preliminary hearing” and the DHHS “did not cite to MCL 712A.19a(2)(a) or MCL 722.638 in its petition requesting termination at initial disposition.” The written “order listed ‘[i]mproper supervision’ and ‘unfit home’ as the circumstances relieving DHHS of its duty to make reasonable efforts toward reunification. But neither of these circumstances is expressly listed as a basis for a judicial determination of aggravated circumstances under MCL 722.638(1)(a).” The court added that it was “not apparent how, in this case,” the underlying reasons for those findings “would constitute ‘abuse’ within the meaning of the statute.” It concluded that while M “may have suffered ‘serious physical harm,’ the trial court made no finding—and the present record does not indicate—that [M’s] injuries were ‘included’ in any ‘abuse’ of him or his siblings by respondents (or any other listed individual), as required by MCL 722.638(1)(a).” The court directed the DHHS on remand to “prepare a case service plan for each respondent and” that the trial court order “reasonable efforts be made toward reunification, unless or until a determination is properly sought and made on the record that such efforts are excused by law.”