Opinion
357270
01-06-2022
In re S. ROSSIER, Minor.
UNPUBLISHED
Clare Circuit Court Family Division LC No. 19-000044-NA
Before: Markey, P.J., and Shapiro and Ronayne Krause, JJ.
PER CURIAM.
Respondent appeals by right the trial court's order terminating her parental rights to the minor child, SMR, under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist) and (g) (failure to provide proper care or custody). We affirm.
During the proceedings, the trial court also terminated the parental rights of the child's father. He has not appealed.
I. BACKGROUND
In August 2019, the Department of Health and Human Services (DHHS) filed a petition requesting that SMR be removed from respondent's care. DHHS asserted that SMR had been born premature, that she was still in the hospital, that she had various ailments, and that because of respondent's "limited cognitive abilities, " she could not care for SMR without constant one-on-one assistance and reinforcement. The record reflects that SMR was diagnosed with severe acid reflux, "reactive airway disorder," mild cerebral palsy, and neutropenia, which made her especially susceptible to infections. The trial court ordered removal, and SMR was placed in a nonrelative foster home, where she remained for the duration of the case. In January 2021, DHHS filed a supplemental petition requesting the termination of respondent's parental rights. The gist of DHHS's petition was that despite intensive efforts to educate and train respondent with respect to how to properly and safely care for SMR in light of her medical frailties, respondent simply failed to grasp or retain the information provided to her or to adequately replicate practices and techniques taught to her.
Respondent's IQ was later determined to be 65.
Testimony by two caseworkers established that with respect to SMR's severe acid reflux, the caseworkers needed to constantly remind respondent to stop feeding SMR 30 minutes before her visits ended. With regard to SMR's reactive airway disorder, SMR was on an "asthma action plan" under which her caregiver identified SMR's breathing patterns and the seriousness of her asthma symptoms for the day using colors (green, yellow, or red), adjusting SMR's medication accordingly. A caseworker testified that the plan was explained to respondent at least 20 times and that respondent demonstrated that she understood the information when she was told, but when asked at a future date, respondent did not know the nature of the action plan and could not identify a color associated with SMR's breathing and symptoms. There was also caseworker testimony that respondent used a Clorox wipe when changing SMR. With respect to SMR's cerebral palsy, there was testimony that respondent did not take certain steps to adjust the child's physical positioning, failed to apply positioning techniques, and did not assist SMR relative to physical movements, all of which are necessary to properly care for a child with cerebral palsy. With regard to SMR's neutropenia, respondent had to be constantly instructed to wear a mask and to wear it properly in order to protect SMR from infection. Although respondent testified that she had difficulty breathing while wearing a mask because she had breathing issues, she also testified that she would wear a mask if it helped protect SMR's health. Overall, the testimony established that despite DHHS's efforts, respondent simply could not retain the knowledge or master the skills needed to properly and safely care for SMR. On May 13, 2021, the trial court entered an order terminating respondent's parental rights. This appeal followed.
II. REASONABLE EFFORTS
Respondent first argues that the trial court erred by finding that there existed clear and convincing evidence that the statutory grounds for termination were established because DHHS failed to make reasonable efforts at reunification and reasonable accommodations as necessary to address respondent's "mental disability."
We review for clear error a trial court's factual findings regarding whether DHHS made reasonable efforts to preserve and unify a family. In re Fried, 266 Mich.App. 535, 542-543; 702 N.W.2d 192 (2005). "A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made." In re Schadler, 315 Mich.App. 406, 408; 890 N.W.2d 676 (2016) (quotation marks and citation omitted).
The statutory grounds for termination cannot be established when DHHS fails to fulfill its statutory duty to make reasonable efforts at reunification. In re Mason, 486 Mich. 142, 166; 782 N.W.2d 747 (2010). Absent aggravating circumstances, the DHHS "has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights" and "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; 893 N.W.2d 637 (2017), citing MCL 712A.18f(3)(b), (c), and (d) and MCL 712A.19a(2). These obligations dovetail with those under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., which provides that "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 subjected to discrimination by any such entity." 42 USC 12132 ; In re Hicks/Brown, 500 Mich. at 86. Thus, the DHHS must make "reasonable modifications to the services or programs offered to a disabled parent" in order "to reasonably accommodate a disability." In re Hicks/Brown, 500 Mich. at 86. "[E]fforts at reunification cannot be reasonable under the Probate Code if the Department has failed to modify its standard procedures in ways that are reasonably necessary to accommodate a disability under the ADA." Id. These principles apply when a parent has known or suspected intellectual, cognitive, or developmental impairments. In re Sanborn, __ Mich. App, __;__ N.W.2d __(2021) (Docket No. 354915); slip op at 4. To successfully claim a lack of reasonable efforts, a respondent must establish that he or she would have fared better had petitioner offered additional or alternate services. In re Fried, 266 Mich.App. at 543.
In this case, DHHS was aware of respondent's cognitive limitations at the outset of the case. And respondent's counsel stated at an early hearing that respondent had difficulty with reading comprehension and was more of a "hands-on person." The trial court advised DHHS that it needed to ensure that communications with respondent were primarily in person and that respondent understood what she was being told.
Respondent attended SMR's medical appointments, during which the child's doctors discussed SMR's medical conditions. Respondent acknowledged that she had the opportunity to ask questions during these appointments. DHHS personnel were also at the appointments and allowed respondent to ask them any questions after the appointments. And they attempted to make sure that respondent understood what she was being told by having her repeat the medical information provided to her. A hands-on, personal approach was utilized to demonstrate techniques and to educate respondent with respect to caring for SMR. Although respondent complains that she was not offered a parenting class that addressed children with special medical needs and that she received limited parenting time, DHHS went to great lengths to help respondent understand SMR's medical conditions, but respondent had too much difficulty grasping and applying the information. We conclude that the trial court did not clearly err by finding that reasonable efforts at reunification were made by DHHS that satisfied the heightened demands enunciated in In re Hicks/Brown.
III. BEST INTERESTS
Finally, respondent argues in cursory fashion that the trial court clearly erred by finding that termination of her parental rights was in SMR's best interests. If a trial court finds that a single statutory ground for termination has been established by clear and convincing evidence and that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child, the court is mandated to terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5); MCR 3.977(H)(3); In re Beck, 488 Mich. 6, 10-11; 793 N.W.2d 562 (2010); In re Moss, 301 Mich.App. 76, 90; 836 N.W.2d 182 (2013); In re Ellis, 294 Mich.App. 30, 32; 817 N.W.2d 111 (2011). We review for clear error the trial court's ruling that termination is in a child's best interests. In re Schadler, 315 Mich.App. at 408.
With respect to the children's best interests, we place our focus on the children rather than the parent. In re Moss, 301 Mich.App. at 87. In assessing a child's best interests, a trial court may consider such factors as a "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 Minors, 297 Mich.App. 35, 41-42; 823 N.W.2d 144 (2012) (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. 701, 714; 846 N.W.2d 61 (2014).
In this case, respondent first argues that the trial court failed to consider the bond that she had with SMR. Testimony at the termination hearing established that respondent did have a bond with SMR. To the extent that the trial court did not consider this bond when it stated that respondent "loves [SMR] very much," a child's bond to a parent is but one of many best-interest factors. Moreover, contrary to respondent's argument, the trial court did not solely consider SMR's need for permanency. Rather, the trial court also considered respondent's parenting ability, the advantages of SMR's foster home over respondent's home, SMR's well-being while in care, and the possibility of adoption. Overall, SMR's foster parents were caring for the child's medical needs and were willing to adopt SMR, while respondent lacked the capacity to properly care for SMR. Based on the record evidence, we discern no clear error in the trial court's finding that termination of respondent's parental rights was in SMR's best interests.
Respondent also argues, without elaboration, that DHHS failed to consider placement of SMR with a family member. This inadequately-briefed issue that was not properly framed in respondent's brief on appeal fails because aside from those defects, the record reveals that there were no relatives suitable for placement.
We affirm.
Jane E. Markey Douglas B. Shapiro Amy Ronayne Krause