Opinion
No. 346546
05-09-2019
In re O'BRYANT, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kalamazoo Circuit Court Family Division
LC No. 2017-000005-NA Before: BOONSTRA, P.J., and METER and FORT HOOD, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court order terminating her parental rights to the minor children 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 children's father, the father did not appeal, and his parental rights are not at issue in this appeal.
On January 4, 2017, petitioner, Department of Health and Human Services (DHHS), submitted a petition to the trial court to remove respondent's daughter, MO, three-months-old at the time, from respondent's home. Petitioner alleged that respondent crushed an unknown pill from a prescription pill bottle into a powder and gave the powder to MO. Petitioner alleged that respondent stated that the substance was melatonin, but petitioner alleged that MO did not have a prescription for that substance or a recommendation from a physician for its use. Petitioner alleged that respondent's conduct placed MO at an unreasonable risk of harm. Petitioner also alleged that respondent was unable to provide stable housing and financial resources to provide for MO's basic needs. Finally, petitioner alleged that respondent had unresolved mental health issues, including untreated schizophrenia and bipolar disorder. On June 22, 2017, respondent offered a plea of admission to the petition regarding her arrest on March 17, 2017, related to the charges of armed robbery, unlawful driving away of a motor vehicle, auto theft, and assault of a police officer. The trial court accepted respondent's plea.
On November 17, 2017, petitioner submitted another petition to the trial court regarding respondent's second daughter, SO. Petitioner alleged that SO was born on November 16, 2017, and that the removal of MO from respondent's care and respondent's incarceration supported authorizing the petition and removing SO from respondent's care. On January 16, 2018, respondent offered a plea of admission to the petition regarding SO, and the trial court accepted respondent's plea.
Respondent participated in various services, and petitioner provided respondent with reasonable modifications to accommodate respondent's intellectual impairments and mental health diagnoses. 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 services and accommodations, respondent had significant difficulties parenting the minor children. Moreover, the trial court found that respondent did not resolve any of the barriers that led to the removal of her children, including her untreated mental health 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 children'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.
On appeal, respondent does not argue that the trial court erred by determining that petitioner established statutory grounds for termination or by determining that termination was in the minor children's best interests.
We review the trial court's findings of fact concerning whether petitioner made reasonable efforts to reunify respondent with the minor children for clear error. See In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005) (reviewing the trial court's findings with respect to reunification for clear error). "A finding is clearly erroneous, if although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011).
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." In re Hicks/Brown, 500 Mich at 86. The DHHS must develop a case service plan setting forth 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 [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); see also In re Mason, 486 Mich 142, 156; 782 NW2d 747 (2010) (discussing petitioner's statutory duty to prepare and update case service plans). The parent should be given a reasonable time to participate in and benefit from services before termination of parental rights. See id. at 159 (when the petitioner did not provide the respondent with services or involve him in services and the trial court terminated his parental rights on the basis of his failure to comply with services, such action was clearly error). 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. The record reflects that petitioner offered respondent numerous services, including a psychological evaluation; individual counseling services; a visitation coach as a part of a family visitation program; trauma recovery counseling; healthy living skills, coping and life skills, and parenting skills classes; drug counseling; narcotics anonymous; alcoholics anonymous; substance abuse treatment; random drug screens; supervised parenting time; assistance during parenting time; and transportation to services and appointments. The trial court found that petitioner also offered respondent family team meetings, transportation assistance, bus tokens, and housing assistance resources. Petitioner and the foster-care caseworkers also provided respondent with reasonable modifications to accommodate respondent's intellectual impairments and mental health issues, including regular monthly written and verbal communication with the caseworker regarding the case service plan, the parent-agency treatment plan, and petitioner's recommendation to terminate respondent's parental rights; offers by the caseworkers to provide visual material and literacy assistance as needed to explain general concepts and the termination proceedings; and a referral to the Literacy Council in Kalamazoo, Michigan, to improve respondent's understanding of written materials.
Respondent's psychological evaluation report indicated that respondent had a KBIT-2 IQ Composite Score of 59, which received the lower extreme classification. The psychologists concluded that respondent had a mild intellectual disability, antisocial personality features, and mild to moderate cannabis use disorder. The psychologists also concluded that respondent was at risk for patterns of abuse and neglect with a child and that respondent had a low frustration tolerance and poor impulse control. Finally, the psychologists concluded that respondent had rigid and unrealistic expectations of the behavior of a child and that respondent would have difficulty problem-solving and parenting in complex situations.
Respondent had the opportunity to participate in these services for a significant period of 20 months by the time of the termination hearing. The testimony at the termination hearing further indicated that the caseworkers were aware of respondent's intellectual impairments and mental health issues and identified these issues as areas of concern in the parent-agency treatment plans. Respondent did not participate in individual counseling or literacy assistance programs to address her intellectual impairments and mental health issues. Additionally, respondent did not participate in intensive parenting skills classes, complete substance abuse treatment, or complete her substance abuse evaluation, contrary to the psychologists' recommendations in respondent's psychological evaluation report. Respondent participated in some parenting-skills classes and substance abuse counseling but did not successfully complete any of the classes or services. "While [petitioner] has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondent to participate in the services that are offered." In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012). Although respondent's caseworker conceded that she was not trained regarding ADA compliance, the caseworker testified that she was able to accommodate respondent's intellectual impairments and mental health issues by providing regular verbal and written contact with respondent and by explaining the termination proceedings and the parent-agency treatment plan. 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. The trial court found that, notwithstanding these services and accommodations, respondent had difficulties soothing, holding, and disciplining the minor children. The trial court also found that respondent did not resolve any of the barriers that led to the removal of her children, including her serious untreated mental health issues.
Notably, respondent has refused to take medication for her mental health issues since she was 18-years-old. --------
Further, on appeal, as in the trial court, respondent does not specify any services or accommodations that would have made reunification more likely. Respondent did not participate in individual therapy or literacy assistance programs. Additionally, respondent failed to show that she retained benefit from the services and reasonable accommodations. For example, respondent did not demonstrate that she retained parenting-skills training from one parenting-time visitation to the subsequent visit. See In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014) ("Not only must respondent cooperate and participate in the services, she must benefit from them."). The record does not support respondent's allegation that petitioner failed to offer reasonable services and accommodations for her disabilities. Therefore, we conclude that the trial court did not clearly err by determining that petitioner made reasonable efforts to reunify the family and reasonable accommodations for respondent's intellectual impairments and mental health diagnoses were made.
Affirmed.
/s/ Mark T. Boonstra
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood