Opinion
No. 344868 No. 344871
03-19-2019
In re J. M. SANBORN, 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 UNPUBLISHED Kent Circuit Court Family Division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. 17-050254-NA Before: RIORDAN, P.J., and MARKEY and LETICA, JJ. PER CURIAM.
In these consolidated appeals, respondent-parents appeal by right the trial court's order terminating their respective parental rights to infant JS under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). We affirm.
JS was born prematurely and placed in the neonatal intensive care unit because he weighed just over 2 lbs., had a cleft lip and palate, and suffered from severe respiratory issues that required installation of a tracheostomy tube (trach) and his placement on a ventilator. Respondents were homeless after JS's birth and stayed with him in the hospital. They received medical training to maintain and change JS's trach and to tube feed him. Despite the training provided by the hospital, respondents never gained proficiency such that they could perform the medical care that JS required, and they lacked the ability to recognize and respond to emergency situations.
During JS's hospitalization at Helen DeVos Children's Hospital, the Department of Health and Human Services (DHHS) petitioned the trial court to authorize JS's removal from the respondents' care and custody because they each had cognitive impairments and lacked the ability to understand JS's medical needs and to provide him necessary medical care. The trial court authorized the petition and made JS a temporary ward of the court. JS remained in the hospital until his health improved enough to be discharged to a foster home, which was fully equipped to handle the medically-fragile JS and had in-home nurses who assisted the foster parents in providing him the special around-the-clock care that he needed.
Respondents' counsel requested accommodations for respondents because of their cognitive disabilities. And the trial court acknowledged respondents' needs and directed the DHHS to provide appropriate and necessary accommodations. Respondents were referred to and provided numerous services in an effort to enable them to be reunified with JS. Ultimately, the DHHS filed a supplemental petition seeking termination of respondents' parental rights. The trial court conducted a termination hearing and found that petitioner proved the statutory grounds for termination set forth in the supplemental petition and that termination served JS's best interests. Attorneys for respondents never lodged any substantive objections about the rendered services and accommodations until the termination hearing. The trial court determined that reasonable efforts had been made to reunite respondents with JS.
Respondents first argue that the trial court erred by finding that reasonable efforts had been made to rectify the conditions leading to JS's removal because petitioner failed to provide sufficient services and reasonable accommodations in light of respondents' cognitive disabilities. We disagree.
"In general, petitioner must make reasonable efforts to rectify conditions, to reunify families, and to avoid termination of parental rights." In re LE Minor, 278 Mich App 1, 18; 747 NW2d 883 (2008). Although the DHHS "has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondents to participate in the services that are offered." In re Laster, 303 Mich App 485, 495; 845 NW2d 540 (2013) (quotation marks omitted). A parent must meaningfully participate in the services provided and benefit from those services. In re Gazella, 264 Mich App 668, 676; 692 NW2d 708 (2005).
In In re Hicks/Brown, 500 Mich 79, 85-86; 893 NW2d 637 (2017), the Michigan Supreme Court, discussing the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and its impact on the reasonable-efforts requirement, observed:
Under Michigan's Probate Code, the Department has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights. MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). 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. MCL 712A.18f(3)(d) . . . .
The Department also has obligations under the ADA that dovetail with its obligations under the Probate Code. Title II of the ADA requires 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. Public entities, such as the Department, 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. 28 CFR 35.130(b)(7) (2016).
Absent 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. In turn, the Department has failed in its
duty under the Probate Code to offer services designed to facilitate the child's return to his or her home, see MCL 712A.18f(3)(d), and has, therefore, failed in its duty to make reasonable efforts at reunification under MCL 712A.19a(2). As a result, we conclude that efforts 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. [Latter two omissions in original.]
Once the DHHS learns of a disability implicating the ADA, its affirmative duty to make reasonable efforts at reunification means that it cannot remain passive in respect to determining accommodations. In re Hicks/Brown, 500 Mich at 87-88.
In this case, the record reflects that from the outset, the DHHS and the trial court were cognizant of respondents' intellectual disabilities. The trial court, therefore, required and the DHHS acknowledged, the need for some modifications in the services provided to respondents to accommodate their disabilities and to assist them in overcoming the barriers to reunification. The record indicates that the fundamental barrier to reunification in this case related to respondents' ability and capacity to provide proper care to JS in light of his extensive medical needs. JS came into care because he was born prematurely and suffered from numerous serious medical conditions that required around-the-clock medical attention. JS experienced potentially critical situations every day related to his trach maintenance, requiring proper and immediate attention to ensure his safety. JS's medical needs required that respondents demonstrate proficiency in numerous aspects of JS's care and show that they had the capacity to recognize and respond to life-threatening emergencies.
Respondents failed to gain an understanding and proficiency related to JS's care through the medical training they received at Helen DeVos Children's Hospital. Thus, to accommodate respondents' deficits, their caseworker found an agency and contracted for additional trach training sessions by a private nurse with expertise in the field. The nurse had experience working with disabled and cognitively-delayed persons. She provided respondents with 10 hours of intensive, repetitive, and hands-on training with a training doll and JS himself in an effort to assist them in gaining proficiency. Despite this significant accommodation, respondents failed to obtain the necessary skills, failed to internalize the required procedures, and failed to learn how to recognize and react to emergency situations. Respondents never developed the ability to function independently such that they could ensure JS's safety if returned to their care.
The record also reflects that their caseworker made sure that parenting-time visits were attended by a trained nurse who readily assisted respondents in giving aid to JS as needed. Further, the caseworker provided respondents with opportunities to become educated regarding JS's developmental level and the steps necessary to help his growth and progress. To assist respondents in learning parenting skills and understanding child development, they were referred to parenting classes at Michigan State University Extension in Ionia County.
The record further reveals that the DHHS provided respondents with numerous services in an attempt to aid them in overcoming other barriers to reunification. To assist respondents in organizing their lives, keeping track of JS's doctor appointments, and in recording important information for later contemplation, their caseworker supplied them with folders, notebooks, pens, and a yearly planner. The caseworker went over the details of respondents' case service plan and parent-agency agreements to ensure that they understood everything. The caseworker also made sure that they actually wrote down JS's appointment dates in their planner.
The Right Door in Ionia County, a behavioral healthcare provider involved in the case, referred respondents to a variety of services, encouraging them to write down provided information, to ask questions, and to engage in the services made available to them. Respondents were referred to Viewpoint Counseling, Foster Care Supportive Visitation, the Literacy Council, Positive Choice Informed Decisions, domestic violence counseling, anger management classes, and Supportive Visitation, a 15-week program provided by D. A. Blodgett. Respondents were also provided a parenting skills coach. They were further referred to specialized employment services, medication assistance, counseling services, and housing assistance. Respondents received assistance in obtaining temporary subsidized housing. Their caseworker helped them learn personal hygiene and even offered to launder their clothing.
The caseworker made extraordinary efforts to assist respondents in understanding what needed to be done to comply with their case service plan. She testified with respect to the various ways in which she worked to accommodate respondents' special needs, including providing them gas cards, assisting with directions and transportation, personally working with them and their counselor, and helping with laundry, clothing, and toiletries. Although respondents could read, the caseworker carefully explained the meaning of language in their case service plan, along with explaining why respondents were working on certain barriers. The caseworker also mailed respondents the doctor appointments on a sheet that listed all the necessary information, including phone numbers, addresses, and the doctors' names. The record reflects that The Right Door case manager also went over everything with them. Respondents met with her twice a month, 30 minutes individually and 45 minutes together. The record clearly indicates that respondents received services specifically tailored to their many needs.
Respondents argue that the DHHS failed to provide them adequate counseling to overcome their emotional stability problems. Although implementation of referrals for counseling was delayed for an extended period, the record reveals that the DHHS and The Right Door rectified the situation and that respondents were provided counseling services. Nevertheless, once their counseling commenced, respondents missed numerous sessions without any legitimate excuse. They each missed several sessions during March, April, May, and June 2018. Respondents cannot reasonably blame the DHHS when they failed to properly engage in the counseling services provided to them. The record also establishes that respondents missed parenting-time visits, as well as scheduled doctor appointments, for no apparent reason. Respondents had no excuse for failing to comply with these important requirements of their case service plan.
We hold that the trial court did not err in concluding that the DHHS made reasonable efforts to reunify respondents with JS by providing them with numerous services and accommodations appropriate for their deficits, all in an effort to rectify the conditions that led to JS's removal.
Respondent-mother next argues that the trial court clearly erred by finding that clear and convincing evidence existed in support of the statutory grounds for termination of her parental rights. We disagree. Respondent-father does not challenge the trial court's findings regarding the statutory grounds for termination, so those findings will not be disturbed. See Denhof v Challa, 311 Mich App 499, 521; 876 NW2d 266 (2015) ("When an appellant fails to dispute the basis of a lower court's ruling, we need not even consider granting the relief being sought by the appellant."). Both parties contend that the trial court clearly erred in finding that a preponderance of the evidence established that termination of their parental rights was in JS'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); In re Beck, 488 Mich 6, 10-11; 793 NW2d 562 (2010); In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). "This Court reviews for clear error the trial court's ruling that a statutory ground for termination has been established and its ruling that termination is in the children's best interests." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011); see also MCR 3.977(K). "A finding . . . is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed[.]" In re BZ, 264 Mich App 286, 296; 690 NW2d 505 (2004). In applying the clear error standard in parental termination cases, "regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). The trial court must "state on the record or in writing its findings of fact and conclusions of law[,] [and] [b]rief, definite, and pertinent findings and conclusions on contested matters are sufficient." MCR 3.977(I)(1).
In the instant case, the testimony and documentary evidence established that the conditions leading to adjudication continued to exist and that there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering JS's age. MCL 712A.19b(3)(c)(i). The evidence unequivocally showed that, despite the many services made available and provided to respondent-mother during the proceedings, she failed to make any meaningful progress or to benefit from the services. With respect to her parenting ability, respondent-mother never obtained proficiency in the medical skills necessary to independently care for JS's serious and ongoing medical needs. She learned some aspects of trach maintenance but never mastered it. She also failed to demonstrate that she had acquired the requisite knowledge and understanding to recognize and properly respond to JS's critical medical needs in the event of an emergency. Respondent-mother also failed to master the suctioning technique that must be employed to prevent JS from suffocating. The record reflects that respondent-mother tried to learn trach management and maintenance, but she simply lacked the intellectual capacity to do so. Accordingly, there was no clear error by the trial court in finding that the DHHS presented clear and convincing evidence supporting termination under MCL 712A.19b(3)(c)(i).
As indicated above, only one statutory ground in support of termination must be established, so it is unnecessary to examine the other grounds. Nevertheless, there was an abundance of evidence supporting termination under MCL 712A.19b(3)(c)(ii) (new conditions arose that would support jurisdiction and were not rectified), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood of harm if child returned to parent). Aside from the overwhelming problems with respondents' capacity to care for JS and to safeguard his well-being, there were serious issues concerning employment, financial stability, consistent housing, treatment plan compliance, mental health, and patterns of erratic emotional behavior. Reversal is unwarranted.
With respect to a child's best interests, we place our focus on the child 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 NW2d 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 NW2d 61 (2014). A trial court can additionally consider the length of time a child "was in foster care or placed with relatives," and whether it was likely that "the child could be returned to [the parent's] home within the foreseeable future, if at all." In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012). Further, a child's safety and well-being, including the risk of harm should the child be returned to a parent's care, constitute factors relevant to a best-interest determination. In re VanDalen, 293 Mich App 120, 142; 809 NW2d 412 (2011).
The record reveals that the trial court considered all of the evidence and the relevant factors in making its best-interest decision. As discussed at length above, respondents simply cannot safely care for JS given his extensive medical needs and their cognitive deficits. For this reason alone, terminating respondents' parental rights was in the child's best interests, considering the risk of harm to JS if placed in respondents' care and custody. The evidence also established that JS needed permanency, stability, and finality. He had been in care for his entire life. Evidence additionally showed that JS's foster home, a pre-adoptive home, provided for his needs and that his caregivers had the requisite skills to ensure his safety and to provide him exceptional care. Although respondents were able to finally obtain housing, they could not provide a stable, secure, and safe environment for JS. Moreover, respondents lacked financial stability.
The evidence further established that respondents engaged in services but failed to fully comply with their treatment plans. They participated inconsistently in counseling and missed several sessions over many months. Similarly, respondents missed parenting time visits and failed to provide legitimate excuses for doing so. They also missed many of JS's scheduled doctor appointments despite knowing about them and having available transportation to attend. Respondent-mother missed classes on parenting skills and was discharged because of her absences. Respondent-father gained some benefit from anger management counseling, but he never overcame his problem. Further, the record reveals that he continued to dominate respondent-mother, and she failed to develop personal strengths and insights so as to function independently.
In sum, the trial court did not clearly err in finding that termination of respondents' parental rights was in JS's best interests.
We affirm.
/s/ Michael J. Riordan
/s/ Jane E. Markey
/s/ Anica Letica