In this decision, the Court of Appeals reverses a termination order, concluding that the juvenile court completely denied visits between the parents and children without a sufficient showing that denial of visitation was appropriate and that the department did not exercise reasonable efforts to rehabilitate the father.
As a preliminary matter, the Court of Appeals acknowledges the split between appellate divisions as to whether a de novo or clear error standard of review should apply, but determines it need not resolve this question because the juvenile court’s decision was erroneous under either standard.

In determining that the record did not contain sufficient evidence to support the denial of visits, the Court of Appeals considers a two-weeks sobriety requirement before reinstatement of visits to be a denial of visits and notes the lack of evidence indicating that parents had been intoxicated during a visit or had missed a visit. The Court of Appeals ultimately concludes that the record failed to make clear how the magistrate’s visitation order promoted the health, safety, and well-being of the children or facilitated the reunification of the family. The Court of Appeals also notes the lack of evidence demonstrating why a more moderate approach than suspension would not have sufficiently addressed existing concerns.

In holding that the department had not made reasonable efforts to rehabilitate father, the Court of Appeals is persuaded by the father’s argument that the father was presented with an “impossible choice” of either participating in a two-year substance abuse treatment program he enrolled in three days after the department moved to terminate parental rights or being available to parent his children. The Court of Appeals also notes that the department did not make referrals or provide funding for other substance abuse treatment programs and left the father to identify and pay for substance abuse services on his own.

On appeal, the father also asserted that the department did not make reasonable efforts to reunify his family because it did not provide necessary mental health services for A.A. While the Court of Appeals does not reverse the termination order based on this contention, it does provide instructions for the juvenile court on remand, stating that the juvenile court must consider whether the department’s approach to addressing A.A.’s mental health needs is sufficient to meet the requirement that the department exercise reasonable efforts to reunify the family. The Court of Appeals also clarifies that to the extent the department asserts lack of funding for services for A.A., the juvenile court must base its decision on evidence related to the department’s efforts, if any, to secure funding for the needed services.

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