Opinion
No. 344457 No. 344458
02-19-2019
In re BEELER, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kent Circuit Court Family Division
LC Nos. 16-053690-NA; 17-052785-NA Before: METER, P.J., and SAWYER and CAMERON, JJ. PER CURIAM.
In Docket No. 344457, respondent-mother appeals the June 12, 2018 order terminating her parental rights to the minor child JBJ under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to exist), and terminating her parental rights to both minor children, JBJ and AB, under MCL 712A.19b(3)(g) (failure to provide proper care and custody) and (j) (reasonable likelihood that children will be harmed if returned to the parent). We affirm.
In Docket No. 344458, respondent-father appeals the June 12, 2018 order terminating his parental rights to the minor child JBJ under MCL 712A.19b(3)(c)(i) and terminating his parental rights to both minor children, JBJ and AB, under MCL 712A.19b(3)(g) and (j). We affirm.
This case arises out of a petition filed against respondents just after JBJ was born. Petitioner alleged that both parents were unemployed and homeless at the time, and they were planning to leave the hospital with JBJ and find a shelter. Respondent-mother had two prior terminations in North Dakota and one prior termination in Michigan. She also had a criminal history of domestic violence, and assault and battery. Respondent-father was listed on the Sex Offender Registry under the Sex Offender Registration Act (SORA). At the time, he was noncompliant with its registration requirements, he was unemployed, and he did not have a place to live. Respondents were provided a treatment plan, and during the proceedings, respondent-mother gave birth to AB. Eventually, the trial court terminated the parents' parental rights. On appeal, respondents each challenge the trial court's decision, claiming (1) it failed to provide reasonable efforts to accommodate their disabilities, (2) there was not a statutory basis for termination, and (3) termination was not in the children's best interests.
I. REASONABLE EFFORTS
Both parents challenge the trial court's finding that the Department of Health and Human Services (DHHS) made reasonable efforts to accommodate their disabilities as required under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. Although the record reflects that the trial court was aware of the parents' disabilities and advised petitioner that it must make reasonable accommodations for both parents, neither parent objected to the adequacy of their service plan at the time. Any claim that one's rights under the ADA are violated must be raised in a timely manner, In re Terry, 240 Mich App 14, 26 n 5; 610 NW2d 563 (2000), and because the parties did not raise this issue, it is unpreserved. Generally, we review the trial court's decision regarding reasonable efforts for clear error. See In re Frey, 297 Mich App 242, 244, 248; 824 NW2d 569 (2012). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013) (quotation marks and citation omitted). However, we review unpreserved issues for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011) (quotation marks and citation omitted). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Utrera, 281 Mich App at 9.
"In general, petitioner must make reasonable efforts to rectify conditions, to reunify families, and to avoid termination of parental rights." In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008). "As part of these reasonable efforts, the Department must create a service plan outlining the steps that both it and the parent will take to rectify the issues that led to court involvement and to achieve reunification." In re Hicks/Brown, 500 Mich 79, 85-86; 893 NW2d 637 (2017). "Not only must respondent cooperate and participate in the services, she must benefit from them." In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014). In challenging the services offered, a respondent must establish that he or she would have fared better if other services had been offered. In re Fried, 266 Mich App 535, 543; 702 NW2d 192 (2005).
Under the ADA, " 'no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination . . . .' " Hicks/Brown, 500 Mich at 86, quoting 42 USC 12132. Therefore, the DHHS must make " 'reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless . . . the modifications would fundamentally alter . . . the service' provided." Id., quoting 28 CFR 35.130(b)(7) (2016). Our Supreme Court explained that "[a]bsent reasonable modifications to the services or programs offered to a disabled parent, the Department has failed in its duty under the ADA to reasonably accommodate a disability." Id. at 86. "Once the Department knew of the disability, its affirmative duty to make reasonable efforts at reunification meant that it could not be passive in [its] approach . . . as far as the provision of accommodations is concerned." Id. at 87-88 (quotation marks and citation omitted).
A. RESPONDENT-MOTHER'S ACCOMMODATIONS
Respondent-mother argues that petitioner failed to make a number of accommodations to her service plan that satisfies the standard set out in Hicks/Brown. We disagree.
The first accommodation petitioner made for respondent-mother was to replace her caseworker. Respondent-mother did not get along with the first caseworker assigned to her case and would express her dissatisfaction directly to him. It is unclear whether respondent-mother requested this change or if petitioner made this change unprompted. Regardless, the change was an accommodation for respondent-mother, and although respondent-mother had not undergone a psychological evaluation yet, petitioner recognized that she had some sort of emotional instability that prevented her from being successful with the original caseworker.
Respondent-mother underwent a psychological evaluation about a month before termination. She was diagnosed with multiple mental illnesses, including autism, bipolar disorder, borderline personality disorder, and attention deficit hyperactive disorder. Petitioner made numerous accommodations in light of these pervasive mental health issues, including: personally escorting mother to psychological evaluations and counseling, creating detailed to-do lists for respondent-mother written on a calendar, increasing the frequency of meetings with her caseworker, scheduling meetings directly after parenting time, and referring her to the type of counseling she requested. The record shows that petitioner made reasonable efforts to accommodate respondent-mother's disabilities that went above and beyond a normal reunification plan. See Hicks/Brown, 500 Mich at 90. For respondent-mother, petitioner complied with the ADA and the Hicks/Brown standard.
The record shows that it was not petitioner's failure to accommodate respondent-mother's disabilities, but rather her failure to take advantage of the opportunities provided to her that led to the termination of her parental rights. She consistently refused to undergo a psychological evaluation; attend the counseling sessions she requested; attend parenting classes; and complete the tasks asked of her. This failure is dispositive, Frey, 297 Mich App at 248, and considering respondent-mother's failure to cooperate with services despite petitioner's additional efforts, the trial court did not plainly err when it concluded that petitioner provided reasonable efforts to accommodate respondent-mother's disabilities. Importantly, respondent-mother failed to establish that she would have fared better if other services had been offered. See Fried, 266 Mich App at 543. She identifies no additional services that petitioner should have provided to accommodate her specific needs, instead stating only that she required "more individualized and reasonable accommodations." Based on respondent-mother's history of noncompliance with services, it appears unlikely that even if additional services had been provided, she would have cooperated with those efforts. See id.
B. RESPONDENT-FATHER'S ACCOMMODATIONS
Respondent-father also argues that the trial court erred when it concluded that petitioner provided reasonable efforts to accommodate his disability under the ADA. We disagree.
Before respondent-father's psychological evaluation was available, a caseworker testified that respondent-father's IQ was low. Under the Hicks/Brown standard, a respondent must be accommodated if the disability is obvious or because the trial court was informed of the disability. Hicks/Brown, 500 Mich at 87. Thus, even before respondent-father was evaluated, the trial court directed petitioner to be sure that it was taking additional steps as necessary with both parents to satisfy the Hicks/Brown standard. We conclude that the trial court did not plainly err in its determination that petitioner provided reasonable efforts to accommodate respondent-father's disability.
Petitioner met with respondent-father more frequently in order to ensure he was meeting the goals of his treatment plan. Additionally, petitioner assisted him with the paperwork to obtain an ID so that he could comply with SORA, and it informed respondent-father that a major barrier to reunification was his continued involvement with respondent-mother, which he needed to rectify. However, despite these efforts, respondent-father continually failed to meet the goals of his treatment plan. Respondent-father was provided special instruction and literature on infant feeding, but he still failed to display a sufficient understanding on how to feed the child, and he often failed to attend his counseling. Petitioner located an agency that could have done more in-depth testing of respondent-father's cognitive abilities, but he failed to appear at the evaluations. Even so, the trial court understood respondent-father's struggles and expressed those concerns to petitioner, which in turn took action necessary to accommodate his disability. The trial court's orders coincided with accommodations associated with respondent-mother's special needs as well. On this record, the trial court did not plainly err. Even if we were to conclude that petitioner could have done more to accommodate respondent-father's needs, any such actions would not have affected the outcome of the proceedings. At no time did respondent-father show that he would have been able to obtain adequate income and housing to care for the children. Throughout the case, he showed a lack of ability to disassociate himself from respondent-mother. He did not complete services, and any further accommodation would not have affected his ability to complete his treatment plan. Thus, any error did not affect the outcome of the proceedings.
II. STATUTORY GROUNDS AND BEST INTERESTS
In her brief, respondent-mother also attempts to challenge the trial court's findings as to the statutory grounds for termination and the children's best interests. However, because she did not properly present these issues in her statement of questions presented, we need not address them. See Caldwell v Chapman, 240 Mich App 124, 132; 610 NW2d 264 (2000).
Respondent-father, however, has properly raised a challenge to statutory grounds and best interests in his statement of the questions presented, and we will address those arguments.
"To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established." Moss, 301 Mich App at 80. This Court reviews a trial court's finding that a statutory ground was proven by clear and convincing evidence for clear error. MCR 3.977(K); Moss, 301 Mich App at 80. "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).
The trial court must find that termination of parental rights is in the best interests of the children by a preponderance of the evidence. Moss, 301 Mich App at 90. This Court reviews the trial court's determination of best interests for clear error. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." BZ, 264 Mich App at 296. "Appellate courts are obliged to deter to a trial court's factual findings at terminations proceedings if those findings do not constitute clear error." In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009).
Respondent-father's parental rights to JB were terminated pursuant to MCL 712A.19b(3)(c)(i), (g), and (j), and his parental rights to AB were terminated pursuant to MCL 712A.19b(3)(g) and (j). The relevant subsections provide:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:If this court concludes that the trial court did not clearly err in finding one statutory ground for termination, this Court does not need to address the additional grounds. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
* * *
(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 either of the following:
(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, although, in the court's discretion, financially able to do so, 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.
* * *
(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.
MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. Under the prior version of the statute, a parent who failed to provide proper care or custody, "without regard to intent," could have their parental rights terminated. Under the new version of the statute, a parent who fails to provide proper care or custody "although, in the court's discretion, financially able to do so," may have their parental rights terminated. MCL 712A.19b(3)(g), as amended by 2018 PA 58. --------
A. MCL 712A.19b(3)(c)(i)
Termination of parental rights under MCL 712A.19b(3)(c)(i) is proper where "the totality of the evidence amply supports that [the respondent] had not accomplished any meaningful change in the conditions" that led to the adjudication and would not be able to rectify those conditions within a reasonable time. In re Williams, 286 Mich App 253, 272; 779 NW2d 286 (2009).
The trial court did not err when it found that the conditions leading to respondent-father's adjudication continued to exist at termination. The trial court entered the initial disposition order regarding respondent-father and JB on September 26, 2017. One hundred and eighty two days after September 26, 2017 was March 27, 2018. The trial court terminated father's parental rights on June 12, 2018. Therefore, "182 or more days" had "elapsed since the issuance of an initial disposition order." MCL 712A.19b(3)(c)(i).
At adjudication, the trial court took jurisdiction of JB because respondent-father had unstable housing, was still living with respondent-mother, and was noncompliant with SORA. The trial court found that termination was proper under MCL 712A.19b(3)(c)(i) because these conditions persisted, i.e., respondent-father failed to obtain stable housing separate from respondent-mother and comply with SORA.
The record supports that, at the time of termination, the conditions that led to adjudication continued to exist for respondent-father. With respect to housing, father was no longer living with respondent-mother, which was the largest barrier to reunification for him. However, father was staying with a friend rather than in his own stable housing. Therefore, the record establishes that he did not accomplish "any meaningful change" regarding housing, and the trial court did not clearly err in finding that father failed to obtain stable, adequate housing. See Olive/Metts, 297 Mich App at 40; Williams, 286 Mich App at 272. With respect to compliance with SORA, respondent-father's noncompliance was a persistent issue throughout the case. As of termination, respondent-father was still noncompliant with SORA because he did not have an ID. Therefore, the record establishes that he did not accomplish "any meaningful change" regarding his SORA status, and the trial court did not clearly err in finding that respondent-father failed to rectify this issue. See Olive/Metts, 297 Mich App at 40; Williams, 286 Mich App at 272.
Either of these grounds can support termination under MCL 712A.19b(3)(c)(i). See, e.g., Frey, 297 Mich App at 246 (holding that a respondent's failure to comply with a court-ordered treatment plan supported termination under MCL 712A.19b(3)(c)(i)); Williams, 286 Mich App at 272-273 (holding that the mother's lack of employment and housing evidenced an inability to provide a safe environment for her children and supported termination under MCL 712A.19b(3)(c)(i)). For these reasons, the trial court did not err when it found that the conditions leading to father's adjudication continued to exist at termination.
B. MCL 712A.19b(3)(g)
Under the recently amended MCL 712A.19b(3)(g), a trial court may terminate parental rights if "[t]he parent, although, in the court's discretion, financially able to do so, fails to provide proper care and 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."
The trial court did not address whether it felt respondent-father was financially able to care for the children. Respondent-father continued to fail to provide verification of employment or income to the case worker. The record is devoid of evidence regarding his financial ability to care for the children. Given respondent-father's history of homelessness and transient housing, it is very likely that he is financially unable to care for the children. However, in light of the new statutory language, the trial court erred when it found that termination was appropriate under MCL 712A.19b(3)(g). With that said, only one statutory ground is required to terminate parental rights, and this error is not dispositive. In re HRC, 286 Mich App at 461.
C. MCL 712A.19b(3)(j)
Under MCL 712A.19b(3)(j), a trial court may terminate parental rights if "[t]here 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." A parent's failure to comply with the terms and conditions of his service plan is evidence that a child will be harmed if returned to the parent's home. In re White, 303 Mich App 701, 711-713; 846 NW2d 61 (2014); Trejo, 462 Mich at 360-363.
Respondent-father has participated in services and attempted to change his behavior more so than respondent-mother. Respondent-father may be able to obtain stable housing and establish an environment for the children separate from respondent-mother, which was the main goal of his service plan. However, father is still not in compliance with his service plan because he is still not in compliance with SORA. Therefore, the trial court did not clearly err in finding that termination of father's parental rights was proper under MCL 712A.19b(3)(j). See White, 303 Mich App at 711-713; Olive/Metts, 297 Mich App at 40.
The trial court did not err when it found that termination was appropriate under MCL 712A.19b(3)(c)(i) and (j), but the trial court did clearly err when it applied an outdated version of MCL 712A.19b(3)(g) and failed to make a determination about respondent-father's financial ability. However, this error is harmless because termination is proper when at least one statutory ground for termination is proven. See In re HRC, 286 Mich App at 461. Therefore, the trial court did not err when it found statutory grounds for termination.
D. BEST-INTERESTS DETERMINATION
"Once a statutory ground for termination has been proven, the trial court must find that termination is in the child[ren]'s best interests before it can terminate parental rights." Olive/Metts, 297 Mich App at 40. When deciding whether termination is in the children's best interests, the trial court may consider the record as a whole. In re JK, 468 Mich 202, 211; 661 NW2d 216 (2003). The trial court may consider "the child[ren]'s bond to the parent, the parent's parenting ability, the child[ren]'s need for permanency, stability, and finality, and the advantages of a foster home over the parent's home." Olive/Metts, 297 Mich App at 41-42 (citations omitted). Each parent's right must be considered individually, without consideration of the fitness or unfitness of the other parent. See In re Sanders, 495 Mich 394, 422; 852 NW2d 524 (2014).
The trial court did not clearly err when it concluded that termination of respondent-father's parental rights was in the best interests of the children. The trial court concluded that, based on the testimony, respondent-father had a minimal bond with the children, who were both very young. As for visitation, respondent-father did make efforts to try and visit the children, but he failed to attend post-visitation meetings with the caseworker—an essential aspect of the treatment plan. As for the children themselves, the trial court noted that they were thriving in their current foster placement, which far outweighed placement with respondent-father, who had continually failed to obtain stable income and housing. Moreover, the trial court noted the children's need for permanence and the length of time it would require for the parents to rectify the conditions that led to the termination proceedings. Given these factors, the trial court concluded that termination of respondent-father's parental rights were in the best interests of the children. On this record we cannot conclude that the trial court clearly erred in its determination.
Affirmed.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Thomas C. Cameron