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Michigan Supreme Court Lansing, Michigan

Opinion
In re MASON, Minors. ____________________________________ DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee, v RICHARD MASON, Respondent-Appellant, and CLARISSA SMITH, Respondent.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED MAY 26, 2010

No. 139795

BEFORE THE ENTIRE BENCH CORRIGAN, J. We reverse the judgment of the Court of Appeals, which affirmed the circuit court's order terminating the parental rights of Richard Mason, the respondent-father (respondent), to his two sons, J. and C. The circuit court committed several legal errors and the Department of Human Services (DHS) failed in its duties to engage respondent in the proceedings against him. First, the court and the DHS failed to facilitate respondent's participation in the child protective action by telephone in light of his incarceration, as

required by MCR 2.004. The DHS further abandoned its statutory duties to involve him in the reunification process and to provide services necessary for him to be reunified with his children. The court effectively terminated respondent's parental rights merely

because he was incarcerated during the action without considering the children's placement with relatives or properly evaluating whether placement with respondent could be appropriate for the children in the future. Incarceration alone is not a sufficient reason for termination of parental rights. Accordingly, we reverse and remand the case to the circuit court for further proceedings consistent with this opinion. I. FACTS AND PROCEEDINGS Respondent is the father of J., born March 13, 2004, and C., born December 12, 2006. Clarissa Smith is the boys' mother. The parents were never married, but The DHS's Child

respondent testified that they shared responsibility for J.'s care.

Protective Services (CPS) program first became involved with the family in April 2006; it provided services to Smith, but never to respondent. Until respondent was jailed for drunk driving in October 2006, shortly before C.'s birth, he did construction work to support the family. While respondent was in jail, Smith brought the boys to visit him every week. On June 19, 2007, the DHS temporarily removed J. and C. from Smith's care. CPS had investigated Smith after the police found J. wandering outside the home unsupervised. The removal petition filed by the DHS also accused respondent of neglect, citing his

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criminal history and alleging that he "has failed to provide for the children physically, emotionally and financially." The court authorized the petition on June 20, 2007, at a hearing where respondent was represented by court-appointed counsel. The court notified respondent that the children had been removed and arranged for him to participate by telephone in a July 24, 2007, pretrial hearing. At the July 24 hearing, both respondent and Smith pleaded no contest to the allegations in the petition. The DHS planned to provide services to Smith with a goal of reunification. With regard to respondent, the court ordered supervised visits following his anticipated release from jail. The DHS foster care worker, Steven Haag, later created a parent-agency treatment plan and service agreement (the "service plan") requiring respondent and Smith to submit to substance-abuse and psychological assessments, complete parenting classes, maintain contact with the children, and establish legal sources of income and suitable homes. The court adopted the service plan with regard to both parents at an August 14, 2007, hearing, at which respondent was not present.1 Smith had requested placement of the children with respondent's family and the court ordered placement with the children's paternal aunt and uncle. Respondent's incarceration did not end in August 2007 as expected, however. Rather, when his jail term expired, he was sentenced to prison for a prior larceny

It is unclear from the record whether the DHS provided a copy of the service plan to respondent.

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conviction because the drunk driving conviction violated his probation conditions. Respondent's earliest release date became July 1, 2009. The court then restricted his contact with the children to cards or letters. Although the DHS and the court knew of respondent's incarceration, they did not include him in subsequent hearings on November 13, 2007, February 11, 2008, May 8, 2008, July 8, 2008, and October 7, 2008. Nor did they inform him of his right under MCR 2.004 to participate in hearings by telephone. At the July 8, 2008, hearing, respondent--who had corresponded with his attorney-- expressed through counsel that he was "extremely concerned with what is going on with this case." He "truly want[ed] what's best for [his] children, as well as to be a part of their lives." He did "very much want to be a part of any and all court proceedings." His request to participate was apparently overlooked. Finally, more than 16 months after he last participated, the court arranged for respondent to participate by phone in the December 3, 2008, permanency planning hearing. DHS worker Haag acknowledged at the hearing that respondent had provided proof that he completed an educational class and a business education technology course while in prison. Respondent also attended weekly Alcoholics Anonymous meetings and was on waiting lists for enrollment in parenting classes and counseling. But Smith had tested positive for drugs and acknowledged that her current residence was not suitable for her sons. Because the boys had been in care for almost 18 months, Haag contended that both parents' rights should be terminated. Both parents objected. Respondent's attorney observed that respondent was doing what he could and might be released by July 2009.

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The court nevertheless authorized the termination petition. Smith did not appear for the termination hearing and has not appealed. With regard to respondent, the entirety of the petition's allegations was as follows: Mr. Mason has been in prison since the boys were removed. His earliest release date is July 2009 and he could be incarcerated until July 2016. During his current incarceration, Mr. Mason has been participating in weekly 12-step meetings and completed a Business Education Technology program. He is waiting to be enrolled in parenting classes. The petition sought termination of respondent's rights on the following grounds listed in MCL 712A.19b(3): (c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds . . . : (i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age. * * * (g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age. (h) The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age. * * * (j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.

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At the February 3, 2009, termination hearing, respondent opposed termination because of his imminent release from prison. He requested a one-month adjournment until March 2009 to ascertain whether the parole board would release him the following July. The children's attorney supported respondent's request to adjourn to assess the situation since the children were living with respondent's family. Respondent had

arranged a construction job with his brother and housing with his mother in anticipation of his release from prison. Only Haag and respondent testified at the hearing. Haag candidly admitted that he had never spoken with respondent. Haag stated that respondent had not provided

verification of completion of any programs required by the service plan. In particular, respondent had not completed a substance-abuse program or received an evaluation by a psychologist. Haag opined that termination was in the children's best interests because, even if respondent were to be released from prison in July 2009, it would take him another six months to comply with the service plan and his parole conditions. Respondent testified regarding the classes he completed in prison. He was not using drugs or alcohol, as a drug test confirmed. He stated that a prisoner could not request a psychological evaluation. He did paid work while in prison. With regard to his criminal past, he explained that a 1997 criminal sexual conduct conviction involved consensual sexual behavior with his 16-year-old girlfriend when he was 17. He also described brief jail sentences and probationary periods resulting from this and his other past offenses. Finally, respondent expressed his desire to care for his sons. He had

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employment with his brother waiting for him upon his release. He planned to live with his mother, who had a three-bedroom home with "substantial room for the boys." The court nonetheless terminated respondent's parental rights on the basis of each of the grounds alleged. It faulted him because he had not personally cared for the children for at least the past two years. And his incarceration precluded him from taking advantage of services offered by the DHS. Even if he were to be released in July, the court concluded that he would need at least 6 months to comply with the service plan and bond with the children, requiring at least 11 more months in state-supervised care for the children after the termination hearing. Respondent appealed as of right. The Court of Appeals affirmed in a

memorandum opinion. In re Mason, unpublished memorandum opinion of the Court of Appeals, issued September 15, 2009 (Docket No. 290637).2 On December 3, 2009, we granted oral argument to consider whether to grant leave to appeal or take other peremptory action. II. STANDARD OF REVIEW We review for clear error a trial court's factual findings as well as its ultimate determination that a statutory ground for termination of parental rights has been proved by clear and convincing evidence. MCR 3.977(J); In re Trejo Minors, 462 Mich 341,

Because it is relevant to the relief available in this case, we note that respondent was paroled on September 22, 2009, one week after the Court of Appeals issued its opinion.

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356-357; 612 NW2d 407 (2000). "`A finding is "clearly erroneous" [if] although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.'" In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989) (citation omitted). We review de novo the interpretation and application of statutes and court rules. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). III. ANALYSIS The state is not relieved of its duties to engage an absent parent merely because that parent is incarcerated. In this case, once again, the DHS's efforts focused

exclusively on the custodial mother and essentially ignored the father. "Reasonable efforts to reunify the child and family must be made in all cases" except those involving aggravated circumstances not present in this case. MCL 712A.19a(2) (emphasis added). Here, because the DHS and the court failed to adhere to court rules and statutes, respondent was not afforded a meaningful and adequate opportunity to participate. Therefore, termination of his parental rights was premature. A. THE RIGHT TO PARTICIPATE BY TELEPHONE UNDER MCR 2.004 MCR 2.004 requires the court and the petitioning party to arrange for telephonic communication with incarcerated parents whose children are the subject of child protective actions. See MCR 2.004(A) to (C). The express purposes of the rule include ensuring "adequate notice . . . and . . . an opportunity to respond and to participate," in

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part by determining "how the incarcerated party can communicate with the court . . . during the pendency of the action, and whether the party needs special assistance for such communication, including participation in additional phone calls." MCR 2.004(E)(1) and (4). The court must consider "the scheduling and nature of future proceedings, to the extent practicable, and the manner in which the incarcerated party may participate." MCR 2.004(E)(5). Significantly, MCR 2.004(F) provides: A court may not grant the relief requested by the moving party concerning the minor child if the incarcerated party has not been offered the opportunity to participate in the proceedings, as described in this rule. This provision shall not apply if the incarcerated party actually does participate in a telephone call . . . . Although the court here arranged for respondent to participate in the July 24, 2007, pretrial hearing, no one informed him of his right to continue to participate in the proceedings with facilitation by the court.3 The court and the DHS were well aware that respondent was in prison and thus needed "special assistance"4 to participate in "future proceedings."5 Yet the court arranged for respondent's phone participation in only one additional proceeding before the termination hearing--the December 3, 2008, permanency planning hearing.

Even respondent's appointed attorney appears not to have recognized the court's duty to facilitate respondent's participation by phone. The attorney reported merely informing respondent by letter that "perhaps" respondent's participation could be arranged.
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MCR 2.004(E)(4). MCR 2.004(E)(5).

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When a respondent is not "offered the opportunity to participate in the proceedings," MCR 2.004(F) prohibits the court from granting the moving party's request for relief unless the respondent actually participated in "a telephone call." The DHS argues that the protection of MCR 2.004(F) is not applicable here because respondent participated in two telephone calls--at the July 24, 2007, pretrial hearing and the December 3, 2008, permanency planning hearing. We disagree. A child protective action such as this consists of a series of proceedings, including a preliminary hearing at which the court may authorize a petition for removal of a child from his home, MCL 712A.13a(2), review hearings to evaluate the child's and parents' progress, MCL 712A.19, permanency planning hearings, MCL 712A.19a, and, in some instances, a termination hearing, MCL 712A.19b.6 Each proceeding generally involves different issues and decisions by the court. Thus, to comply with MCR 2.004, the moving party and the court must offer the parent "the opportunity to participate in" each proceeding in a child protective action. For this reason, participation through "a

telephone call" during one proceeding will not suffice to allow the court to enter an order at another proceeding for which the parent was not offered the opportunity to participate. This case illustrates the point well. Although respondent participated by phone in the July 24, 2007, pretrial hearing, he was not offered the opportunity to participate in the
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Child protective actions, in general, are also divided into two "phases": the adjudicative phase, during which the trial court determines whether it "may exercise jurisdiction over the child," and the dispositional phase, during which the court "determines what action, if any, will be taken on behalf of the child." In re Brock, 442 Mich 101, 108; 499 NW2d 752 (1993).

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review or permanency planning hearings held from August 2007 through July 2008. By the time respondent participated in the December 3, 2008, permanency planning hearing--16 months after he last participated--the court and the DHS were ready to move on to the termination hearing. Thus, respondent missed the crucial, year-long review period during which the court was called upon to evaluate the parents' efforts and decide whether reunification of the children with their parents could be achieved. Indeed, respondent was practically excluded from almost every element of the review process, as is further detailed below. In sum, respondent was not "offered the opportunity to participate in the proceedings," MCR 2.004(F), by the moving party and the court as required by MCR 2.004(B).7 Further, he did not actually participate in a telephone call relevant to each proceeding. Although he participated in two calls before the termination hearing, neither call took place during the review period when the DHS made efforts to reunify the children with their parents. Accordingly, the court was precluded from granting the relief requested by the moving party at the close of the review period--specifically, the DHS's request for termination of respondent's parental rights. Respondent's absence affected both his ability to participate and the information available for the court's consideration.

MCR 2.004(B) imposes several specific duties, including the moving party's duties to notify the respondent, contact the department of corrections, and notify the court that telephonic participation is required. The court must then order the department to make arrangements for the call.

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Accordingly, as will be discussed, the circuit court's resultant findings in relation to the statutory grounds for termination were clearly erroneous. B. STATUTORY RIGHTS TO PARTICIPATE IN THE DHS SERVICE PLAN The failures of the DHS and the court also directly violated their statutory duties. If the court orders placement of a child outside the child's home, the DHS must prepare an initial services plan within 30 days of the child's placement. MCL 712A.13a(8)(a). Before the court enters an order of disposition, the DHS must prepare a case service plan, which must include, among other things, a "[s]chedule of services to be provided to the parent, child, and if the child is to be placed in foster care, the foster parent, to facilitate the child's return to his or her home or to facilitate the child's permanent placement." MCL 712A.18f(3)(d). "If a child continues in placement outside of the child's home, the case service plan shall be updated and revised at 90-day intervals . . . ." MCL

712A.18f(5). Further, at each review hearing, the court is required to consider, among other things, "[c]ompliance with the case service plan with respect to services provided or offered to the child and the child's parent, . . . whether the parent . . . has complied with and benefited from those services," and "[t]he extent to which the parent complied with each provision of the case service plan, prior court orders, and an agreement between the parent and the agency." MCL 712A.19(6)(a) and (c). The court may then modify the case service plan, including by "[p]rescribing additional services" and "[p]rescribing additional actions to be taken by the parent . . . to rectify the conditions that caused the child to be placed in foster care or to remain in foster care." MCL 712A.19(7)(a) and (b).

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The only documented service plan in this case listed respondent's obligations and stated that the DHS "worker will refer the family to the appropriate agencies in order to meet the goals" of the service plan. It is unclear, however, whether the DHS sent a copy of the service plan to respondent; although a copy appears in the circuit court record, the section reserved for respondent's signature is notably blank. In any event, neither Haag nor the court ever facilitated respondent's access to services and agencies or discussed updating the plan. Although Haag testified that as a matter of general policy the DHS "tr[ies] to make contact with the prison social worker that might be able to help [a respondent] fulfill some of [the service plan requirements] and get into the services in the prison," Haag did not assert that he complied with this policy here. At a minimum, there is no evidence that Haag spoke to a prison social worker about respondent's need for services. Indeed, Haag admitted that respondent could not comply with the service plan as written while in prison, but provided no explanation for his failure to update the plan or to contact respondent,8 particularly after Smith's noncompliance with the plan became

Failures such as these by the caseworker do not only prejudice parents' rights. The DHS's deficiencies in these regards can be the cause of millions of dollars in federal funding losses as a penalty for failing to meet state child welfare requirements addressed by the United States Department of Health and Human Services Child and Family Services review (CFSR) and review under subchapter IV, part E, of the United States Social Security Act, 42 USC 670 et seq., which provides significant funds for Michigan's foster care system. See 42 USC 674(d) (providing a system for reducing a state's funding as a penalty for noncompliance with program requirements). Indeed, on March 2, 2010, the Children's Bureau of the federal Administration for Children and Families informed the DHS that Michigan's noncompliance with federal requirements will result in an estimated minimum funding loss of $2,836,189 for fiscal year 2009 if the failures are not remedied through a program improvement plan. See the letter from Joseph L. Bock, Acting Associate Commissioner, Children's Bureau, Administration for Children and

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evident.

Haag first reported Smith's noncompliance and the DHS's intent to seek

termination at the December 3, 2008, permanency planning hearing. Yet the DHS and the court still failed to address respondent's right to services or updating the service plan. Respondent's parental rights were terminated a mere two months later, on February 3, 2009. Under these circumstances, the circuit court was required to consider MCL 712A.19a(6), which provides: If the court determines at a permanency planning hearing that a child should not be returned to his or her parent, the court may order the agency Families, United States Department of Health and Human Services, to Ismael Ahmed, Director, Michigan Department of Human Services (March 2, 2010) (on file with the author and the recipient); the memorandum from Kelly Howard, Michigan State Court Administrative Office, regarding the 2009 CFSR final report (March 18, 2010), available at <http://courts.michigan.gov/scao/services/CWS/CFSR-Memo03-10.pdf> (accessed May 25, 2010). As is reflected in the current DHS Childrens Foster Care Manual (also called the "FOM"): "Casework service requires the engagement of the family in development of the service plan. This engagement must include an open conversation between all parents/guardians and the [foster care] worker . . . ." FOM 722-6, p 1 (emphasis in original). The FOM is publicly available at <http://www.mfia.state.mi.us/olmweb/ex/ fom/fom.pdf> (accessed May 25, 2010). Indeed, the family is to be extensively involved in case planning and have a clear understanding of all the conditions which must be met prior to the child's return home, how these relate to the petition necessitating removal, and what the supervising agency will do to help the family meet these conditions. [Id. at 1-2.] Further, "[i]f the parents are not involved in developing or refuse to sign the case plan, the reasons must be documented . . . ." Id. at 2. "The [foster care] worker must also identify and document additional actions needed to secure the parent's participation in service planning and compliance with the case plan." Id. Haag clearly did not take any of these actions here, and respondent's signature is conspicuously absent from the service plan.

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to initiate proceedings to terminate parental rights. Except as otherwise provided in this subsection, if the child has been in foster care under the responsibility of the state for 15 of the most recent 22 months, the court shall order the agency to initiate proceedings to terminate parental rights. The court is not required to order the agency to initiate proceedings to terminate parental rights if 1 or more of the following apply: * * * (c) The state has not provided the child's family, consistent with the time period in the case service plan, with the services the state considers necessary for the child's safe return to his or her home, if reasonable efforts are required. [Emphasis added.] Although the initial conditions of MCL 712A.19a(6) were met--the children could not yet be returned to respondent and they had been placed out of their home for more than 15 months--the court and the DHS failed to consider that respondent had never been evaluated as a future placement or provided with services. Rather, the DHS had focused on its attempts to reunify the children with Smith and, in doing so, disregarded respondent's statutory right to be provided services and, as a result, extended the time it would take him to comply with the service plan upon his release from prison--which was potentially imminent at the time of the termination hearing. The state failed to involve or evaluate respondent, but then terminated his rights, in part because of his failure to comply with the service plan,9 while giving him no opportunity to comply in the future.
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MCL 712A.19a(5) provides for the court's consideration of a parent's failure to comply with a service plan as follows: [T]he court shall view the failure of the parent to substantially comply with the terms and conditions of the case service plan prepared under [MCL 712A.18f] as evidence that return of the child to his or her parent would cause a substantial risk of harm to the child's life, physical health, or mental well-being.

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This constituted clear error. As we observed in In re Rood, a court may not terminate parental rights on the basis of "circumstances and missing information directly attributable to respondent's lack of meaningful prior participation." In re Rood, 483 Mich 73, 119; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.); see also id. at 127 (YOUNG, J., concurring in part) (stating that, as a result of the respondent's inability to participate, "there is a `hole' in the evidence on which the trial court based its termination decision"). C. INCARCERATION ALONE IS NOT GROUNDS FOR TERMINATION As the earlier discussion suggests, the state's failures in this case (which are all too common in this type of case) appear to stem primarily from the fact of respondent's incarceration. Not only did the state fail to properly include him in the proceedings, but the circuit court's ultimate decision in the case was replete with clear factual errors and errors of law that essentially resulted in the termination of respondent's parental rights solely because of his incarceration.10 The mere present inability to personally care for one's children as a result of incarceration does not constitute grounds for termination.
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Notably, the termination petition practically confirms that the state was focused almost exclusively on the mere fact of respondent's incarceration. Two of the scant four sentences in the petition containing allegations against him state: "Mr. Mason has been in prison since the boys were removed. His earliest release date is July 2009 and he could be incarcerated until July 2016." The other two sentences do not establish grounds for termination; to the contrary, they appear to weigh in respondent's favor: "During his current incarceration, Mr. Mason has been participating in weekly 12-step meetings and completed a Business Education Technology program. He is waiting to be enrolled in parenting classes."

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MCL 712A.19b(3)(h) authorizes termination only if each of three conditions is met: The parent is imprisoned for such a period that [1] the child will be deprived of a normal home for a period exceeding 2 years, and [2] the parent has not provided for the child's proper care and custody, and [3] there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age. [Emphasis added.] The combination of the first two criteria--that a parent's imprisonment deprives a child of a normal home for more than two years and the parent has not provided for proper care and custody--permits a parent to provide for a child's care and custody although the parent is in prison; he need not personally care for the child.11 The third necessary condition is forward-looking; it asks whether a parent "will be able to" provide proper care and custody within a reasonable time. Thus, a parent's past failure to provide care
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Michigan traditionally permits a parent to achieve proper care and custody through placement with a relative. In re Taurus F, 415 Mich 512, 535; 330 NW2d 33 (1982) (opinion by WILLIAMS, J.) (equally divided decision) ("[I]f a mother gives custody to a sister, that can be `proper custody'."); In re Maria S Weldon, 397 Mich 225, 296; 244 NW2d 827 (1976) (opinion by LEVIN, J.) ("Some parents, . . . because of illness, incarceration, employment or other reason, entrust the care of their children for extended periods of time to others. This they may do without interference by the state as long as the child is adequately cared for."), overruled in part on other grounds by Bowie v Arder, 441 Mich 23, 47; 490 NW2d 568 (1992); In re Curry, 113 Mich App 821, 823826; 318 NW2d 567 (1982) (observing that incarcerated parents may achieve proper custody by placing a child with relatives); In re Carlene Ward, 104 Mich App 354, 360; 304 NW2d 844 (1981) (holding that a child "who was placed by her natural mother in the custody of a relative who properly cared for her, is not a minor `otherwise without proper custody or guardianship' and thus she was not subject to the jurisdiction of the probate court" under MCL 712A.2). Michigan's Estates and Protected Individuals Code includes an extensive statutory scheme designed to establish guardians for minors--including guardians who are relatives--by appointment of the court or by appointment of the minor's parents. MCL 700.5201 et seq.

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because of his incarceration also is not decisive.12 The court here failed to consider these provisions separately in at least three regards. First, as discussed in part earlier, the court failed to account for the fact that the DHS did not seek termination of respondent's or Smith's parental rights until December 3, 2008. At that time, respondent anticipated being paroled in less than two years; indeed, he was paroled less than one year later, on September 22, 2009. Second, on a related point, the court clearly erred by concluding, on the basis of Haag's largely unsupported opinion, that it would take at least six months for respondent to be ready to care for his children after he was released from prison. As noted,

throughout the proceedings the DHS and the court failed to evaluate respondent's parenting skills or facilitate his access to services.13 Accordingly, as previously

discussed, the court's conclusion that respondent could not care for his children within a
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The Court of Appeals consistently adheres to this approach, having stated that the trial court must consider "whether the imprisonment will deprive a child of a normal home for two years in the future, and not whether past incarceration has already deprived the child of a normal home." In re Neal, 163 Mich App 522, 527; 414 NW2d 916 (1987). See also In re Perry, 193 Mich App 648, 650; 484 NW2d 768 (1992), quoting Neal, 163 Mich App at 527, on this point. The state also arguably contributed to respondent's lack of a current bond with his children; although the children had previously visited him weekly in jail, on the DHS's recommendation the court prohibited even phone contact with them when he was imprisoned again. The court may have reasonably foreclosed further in-person visits given that, when he was reimprisoned, respondent was relocated to a facility in the Upper Peninsula. But the failure to permit phone contact absent proof that contact would harm the children appears to have violated MCL 712A.13a(11), which establishes that, until a petition for termination is filed, the court must permit "the juvenile's parent to have frequent parenting time" unless visits, "even if supervised, may be harmful to the juvenile . . . ."
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reasonable time in the future was improperly rooted in "circumstances and missing information directly attributable to respondent's lack of meaningful prior participation." Rood, 483 Mich at 119 (opinion by CORRIGAN, J.); see also id. at 127 (YOUNG, J., concurring in part). Moreover, respondent did engage in activities while in prison that amounted to compliance with elements of the service plan.14 In Haag's own words at the December 3, 2008, permanency planning hearing, "[W]e do have some of what's expected of him." Respondent also remained in contact with his children through cards and arranged for a home and legal income upon his release from prison. Under these circumstances, the court erred when it accepted Haag's opinion at the termination hearing that respondent had utterly failed to comply with the service plan--a plan that he may not have received in the first place--and had no hope of complying within a reasonable time given the children's ages.15
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It is impossible to tell from the record before us whether respondent was purposefully acting to comply with the service plan, sought out services simply for his own edification, or acted on the advice of counsel to improve his prospects of regaining custody of his children. Moreover, the court made several factual errors when it considered the length of the child protective proceedings. The children had been in state-supervised care ("in care") for about 20 months at the time of the termination hearing--from June 2007 through February 2009. For most of that time, they were living with respondent's family. Yet the court stated that, even if respondent were to be released from prison in July 2009--five months after the termination hearing--and then it took six months for him to comply with the service plan, the boys would have been in care for a total of four years. Actually, under this scenario the boys would have been in care for 31 months--just over 2

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