Opinion
No. 346493
07-23-2019
In re A. FRIAS, Minor.
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 UNPUBLISHED Kent Circuit Court Family Division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 No. 17-051352-NA Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court order terminating her parental rights to the minor child under MCL 712A.19b(3)(c)(i) (failure to rectify conditions of adjudication), (c)(ii) (failure to rectify other conditions), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood that child will be harmed if returned to parent). We affirm.
Although the trial court terminated the parental rights of the minor child's father, father did not appeal, and his parental rights are not at issue in this appeal.
On May 23, 2017, petitioner, Department of Health and Human Services (DHHS), submitted a petition to the trial court to remove the minor child from respondent's care. Petitioner alleged that respondent had anger issues and was not able to regulate her emotions on the basis of her untreated mental health issues and cognitive deficits. Petitioner alleged that respondent could not independently parent the child because of these issues and that the child was at risk of harm. Finally, petitioner alleged that respondent had ongoing domestic violence issues, which posed a risk of harm to the minor child. On May 23, 2017, the trial court held a preliminary hearing and authorized the petition. On June 29, 2017, the trial court found that the allegations in the petition were proven by a preponderance of the evidence and that there were statutory grounds to exercise jurisdiction, specifically that respondent failed to provide for the child and had an unfit home, which placed the child at risk for abuse and neglect.
Respondent participated in various services, and petitioner provided respondent with reasonable modifications to accommodate respondent's intellectual, emotional, and cognitive impairments. The trial court found that petitioner made reasonable efforts to reunify the family but that the efforts were unsuccessful. The trial court found that, notwithstanding these efforts and accommodations, respondent did not demonstrate that she was able to independently parent and care for the minor child. The trial court found that respondent did not resolve any of the barriers that led to the removal of her child, including her parenting skills, her untreated mental health, and her domestic violence issues. Ultimately, the trial court determined that statutory grounds to terminate respondent's parental rights were established and determined that termination was in the minor child's best interests.
On appeal, respondent argues that the trial court clearly erred in determining that petitioner made reasonable efforts to reunify the family and that petitioner made necessary accommodations for respondent's disability. We disagree.
Respondent does not argue that the trial court erred by determining that petitioner established statutory grounds for termination. Therefore, we presume that the trial court did not clearly err in finding that the unchallenged statutory grounds were established by clear and convincing evidence. In re JS & SM, 231 Mich App 92, 98-99; 585 NW2d 326 (1998), overruled in part on other grounds In re Trejo, 462 Mich 341; 612 NW2d 407 (2000).
"In general, issues that are raised, addressed, and decided by the trial court are preserved for appeal." In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). No exception need be taken to a trial court's finding or decision. MCR 2.517(A)(7). However, a respondent should raise a claim that the DHHS violated the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., by failing to make reasonable accommodations to its case service plan when the DHHS adopts the plan or soon after. See In re Terry, 240 Mich App 14, 26; 610 NW2d 563 (2000). In this case, petitioner was aware that respondent had untreated mental health issues, cognitive deficits, and was not able to regulate her emotions when it submitted the petition and when it adopted and updated the case service plan throughout the termination proceedings. Respondent discussed the sufficiency of the services and reasonable accommodations at several of the child protective hearings in this case. However, respondent did not object or claim that petitioner violated the ADA when petitioner adopted the case service plan. Therefore, this claim is unpreserved. See In re Terry, 240 Mich App at 26.
This Court's review of unpreserved claims of error is "limited to plain error affecting substantial rights." In re Utrera, 281 Mich App 1, 8; 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). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App at 9.
Generally, "the [DHHS] has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). Additionally, the DHHS has a duty pursuant to the ADA to "modify its standard procedures in ways that are reasonably necessary to accommodate a disability under the ADA." Id. at 86. The DHHS must create a case service plan outlining the steps that it and the parent will take to rectify the conditions that led to intervention and achieve reunification. Id. at 85-86. The case service plan must include, in relevant part, a schedule 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); see also In re Mason, 486 Mich 142, 156; 782 NW2d 747 (2010) (discussing a parent's statutory right to participate in a case service plan). The parent should be given a reasonable time to make changes and benefit from services before termination of parental rights. See In re Mason, 486 Mich at 159. The trial court should regularly update the plan to account for the parent's progress and developing needs. Id. at 156.
Respondent's argument that petitioner failed to offer her reasonable services and accommodations is without merit. Petitioner offered respondent numerous services, including a psychological evaluation; a substance use evaluation; drug counseling; narcotics anonymous; alcoholics anonymous; substance use education and counseling; random drug screens; supervised parenting time; assistance during parenting time; counseling at the YWCA regarding respondent's mental health and domestic violence issues; parenting-skills classes; a financial management class; and transportation to services and appointments. Respondent participated in programs regarding independent living skills, budgeting, body image issues, developing community connections, and parenting skills. Respondent also participated in parenting training sessions with a parenting-time specialist.
Petitioner and the caseworker also provided respondent with reasonable modifications to accommodate respondent's intellectual and cognitive impairments, including monthly in-person meetings; monthly family team meetings; regular communication and monthly meetings among the caseworker and service providers to discuss respondent's accommodations; financial management from respondent's guardian; weekly checklists and reminders; reminder phone calls; bus passes; offers to review bus schedules in detail; and repetition and explanation of information and expectations for respondent. The caseworker also discussed respondent's impairments and corresponding accommodations for her disabilities with all service providers and discussed each referral and service with respondent to ensure that respondent understood the expectations and purposes of the programs. Additionally, the caseworker provided respondent with domestic violence articles that were translated to Spanish, offered to discuss the articles with respondent, and provided respondent with a Spanish translator.
Respondent's psychological evaluation report indicated that respondent had limits in her cognitive skills, influenced, in part, by English being her secondary language. The psychologist diagnosed respondent with a mild to moderate intellectual disability.
Respondent had the opportunity to participate in these services for a significant period of 17 months by the time of the termination hearing. The testimony at the termination hearing indicated that the caseworker and service providers were aware of respondent's intellectual, emotional, and cognitive impairments and identified these issues as areas of concern in the parent-agency treatment plans. Respondent failed to fully avail herself of the services and reasonable accommodations for her disabilities. Respondent participated in the Thresholds program that provided support, assistance, and accommodations for her intellectual disabilities. However, respondent denied that she had mental health concerns that could affect her parenting, did not participate in mental health appointments until August 2018, and did not comply with the recommendation to take medication until October 2018. Respondent also inconsistently participated in services at the YWCA.
Additionally, respondent failed to show that she benefited from the services and reasonable accommodations. Respondent generally interacted appropriately with the child during parenting-time visitations. However, respondent scored below average on the parenting-skills tests following the parent nurturing program that she completed. Respondent also did not demonstrate that she understood how her failure to address the barriers to reunification affected the child's safety and well-being and her ability to parent. See In re TK, 306 Mich App at 711 ("Not only must respondent cooperate and participate in the services, she must benefit from them.").
The trial court found that, notwithstanding these services and accommodations, respondent had difficulties understanding the daily parenting needs of her child and the impact of her unresolved barriers to reunification on her ability to parent the child. The trial court found that respondent did not resolve any of the barriers that led to the removal of her child, including respondent's untreated mental health issues and emotional instability. We conclude that the evidence and testimony provided throughout the termination proceedings demonstrated that petitioner made reasonable efforts to reunify the family and reasonably accommodated respondent's disabilities.
Further, respondent did not indicate with specificity any services or accommodations that would have made reunification more likely. There was no evidence that respondent was denied any services that were available to a parent with cognitive and intellectual disabilities. See In re Terry, 240 Mich App at 27. Rather, respondent asserted that she required more time to continue to make progress to rectify the barriers to reunification because of her cognitive disabilities. Respondent did not indicate how much time or how more time would have made reunification more likely. See, e.g., In re JL, 483 Mich 300, 326-327; 770 NW2d 853 (2009) (explaining that, even under the stricter rules of the Indian Child Welfare Act, the DHHS does not have a duty to provide endless services).
Based on the record, respondent did not demonstrate that petitioner failed to offer reasonable services and accommodations for her disabilities. Therefore, we conclude that the trial court did not plainly err by determining that petitioner made reasonable efforts to reunify the family and that petitioner made reasonable accommodations for respondent's intellectual, emotional, and cognitive impairments. See In re Utrera, 281 Mich App at 8.
Respondent also argues that the trial court clearly erred by determining that termination of respondent's parental rights was in the minor child's best interests. We disagree.
"Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012); see also MCL 712A.19b(5); MCR 3.977(E)(4). "[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). This Court reviews the trial court's findings and factual determinations for clear error. MCR 3.977(K); In re Trejo, 462 Mich at 356.
"[A] trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich App at 713. The focus of the best-interest analysis is on the child's interests, rather than the parent's best interests. In re Moss, 301 Mich App at 88. The trial court determines each child's best interests individually and, in doing so, "may consider the child's bond to the parent; the parent's parenting ability; the child's need for permanency, stability, and finality; and the advantages of a foster home over the parent's home." In re Olive/Metts, 297 Mich App at 41-42 (citations omitted). "The trial court may also consider a parent's history of domestic violence, the parent's compliance with his or her case service plan, the parent's visitation history with the child, the children's well-being while in care, and the possibility of adoption." In re White, 303 Mich App at 713.
In this case, the evidence and testimony presented at the termination hearings supported the trial court's conclusion that termination of respondent's parental rights was in the minor child's best interests. The evidence presented at the termination hearings demonstrated that the child recognized respondent and was friendly with her, but the child did not have a bond with respondent. In contrast, the child was doing very well in her preadoptive foster home and was bonded with her foster parents. The evidence and testimony at the termination hearing indicated that the child was in foster care for the entirety of her life—17 months—and required permanency, particularly because respondent required an additional 6 to 12 months of services to demonstrate that she could care for the child.
Respondent's behaviors and decision-making demonstrated that she lacked appropriate parenting skills and the ability to provide care and a safe home for the child. Respondent did not address her mental health and emotional stability issues, failed to sufficiently address her domestic relations issues, and used marijuana. See, e.g., In re Jones, 286 Mich App 126, 129-130; 777 NW2d 728 (2009). Respondent also failed to comply with her parent-agency treatment plan regarding her participation and benefit from the provided services. See In re White, 303 Mich App at 714. The trial court appropriately considered the child's need for permanency, respondent's parenting ability, respondent's history of domestic violence, respondent's compliance with her case service plan, respondent's visitation history with the child, the child's well-being while in care, the possibility of adoption, and the advantages of the child's foster-home placement when determining whether termination of respondent's parental rights was in the child's best interests.
We conclude that the trial court appropriately considered the best-interest factors, and the trial court did not clearly err by determining that termination of respondent's parental rights was in the child's best interests. See In re Olive/Metts, 297 Mich App at 41-42.
Affirmed.
/s/ David H. Sawyer
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro