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STATE OF MICHIGAN COURT OF APPEALS
In the Matter of MADISON KABAT, Minors

DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee, v KURT KABAT, Respondent-Appellant.

UNPUBLISHED April 7, 2009

Nos. 286481 Macomb Circuit Court Family Division LC Nos. 2007-000324-NA

In the Matter of SKYLAR KABAT, Minor.

DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee, v KURT KABAT, Respondent-Appellant. No. 286482 Macomb Circuit Court Family Division LC No. 2007-000323-NA

In the Matter of KYLE KABAT, Minor.

DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee, v KURT KABAT, Respondent-Appellant. No. 286483 Macomb Circuit Court Family Division LC No. 2007-000362-NA

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Before: Murray, P.J., and Gleicher and M.J. Kelly, JJ. PER CURIAM. In these consolidated appeals, respondent appeals as of right the trial court's order terminating his parental rights to the minor children under MCL 712A.19b(3)(c)(i), (g), and (j). We reverse and remand for further proceedings. I. Facts and Proceedings

Respondent and his wife, Melissa Kabat, were the parents of MK, SK and KK. During June 2006, respondent and Melissa were substantiated for neglecting MK and SK (KK was not yet born). At this time, respondent was unemployed and the family was homeless and living in a shelter. In October 2006, after respondent and Melissa worked with in-home services and received financial assistance for housing, their case was closed. By late April 2007, however, Melissa, who was expecting a third child, was struggling with substance abuse and had committed retail fraud, and the family was residing in a hotel, prompting Protective Services involvement again.1 Services were again attempted to address substance abuse, money management, housing, and parenting issues. Approximately one month later, in May 2007, MK and SK were removed from respondent and Melissa's care due to substance abuse and homelessness, and placed in foster care.2 Shortly thereafter, on May 20, 2007, Melissa gave birth to KK and tested positive for cocaine. KK was immediately removed from respondent and Melissa's care and placed in foster care. On June 8, 2007, the court assumed jurisdiction over the children pursuant to respondent's no-contest plea, wherein he admitted to the allegations that the family had previously received services to work on their issues, they had previously been substantiated for neglect, Melissa tested positive for cocaine at the time of KK's birth, and respondent had a criminal history, including "misdemeanor retail fraud" in 1998, "possession of a controlled substance" (cocaine) in 1999, "misdemeanor stolen property" in 2006, and "misdemeanor retail fraud" in January 2007. Thereafter, the court adopted and ordered the parents to comply with a parent-agency agreement, which required respondent to (1) undergo a psychological evaluation, (2) complete parenting classes and demonstrate adequate parenting skills, (3) obtain and maintain appropriate housing, (4) demonstrate financial independence and stability, (5) attend a

According to respondent, during this time he was gainfully employed and the family was staying at a hotel because they were "in the middle" of purchasing a manufactured home. Respondent had been employed in the auto industry but had been laid off. The Department of Human Services worker testified at the May 4, 2007, hearing that the biggest issue was Melissa's substance abuse.
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substance abuse assessment, (6) undergo random drug screens, (7) consistently attend visits, (8) maintain contact with his caseworker, and (9) "clear up" his legal issues. Unfortunately, in July 2007, approximately two months after the children's removal from their parents' care, Melissa died due to the "toxic effect of drugs." Respondent naturally had difficulty with his wife's death, and thereafter his visits with the children and drug screens were inconsistent due to his "grief and loss."3 However, as recognized by the DHS at the August 20, 2007, hearing, because of the mother's death in July, and since the court had only taken jurisdiction in May, by late August the parties were "just in the process of starting the [parentagency agreement], all of the terms and conditions." All parties involved also recognized that because of Melissa's death, any missed visits or screens by respondent in July and early August would be excused. At some point, however, respondent underwent a substance abuse evaluation at the Cantonese Clinic, after which the therapist who performed the evaluation, the caseworker, and respondent agreed that respondent should attend an inpatient treatment program located in Kentucky to address alcohol abuse. Importantly, at a September 7, 2007, hearing the DHS worker strongly encouraged respondent to attend the Kentucky in-patient program, as he needed to take care of himself before he could take care of his children: Through the (inaudible) Clinic Counseling Center, and it's a really good in-patient clinic for substance abuse and other issues to be addressed and I think that offer is still on the table for him to do that. He was hesitant to go because he doesn't want to miss out on visiting with his children, but I told him if it's going to help him, then I would by all means go get it done. You've got to take care of yourself before you can take care of your kids. Thus, in September 2007, respondent went to Kentucky and started the treatment program, which according to respondent, addressed substance abuse, parenting skills, anger management, and "every issue" needed to become a more productive person. During the first 90 days in the treatment program, respondent was not permitted leave to visit his children, but after 2

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