Opinion
360615 360616
10-13-2022
In re A. M. RAY, Minor.
UNPUBLISHED
Montcalm Circuit Court Family Division LC No. 2020-000954-NA
Before: MARKEY, P.J., and SAWYER and BOONSTRA, JJ.
PER CURIAM.
In these consolidated appeals, respondents appeal as of right the termination of their parental rights to their child, AMR, under MCL 712A.19b(3)(c) (conditions not rectified), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood that the child will be harmed if returned to the parent's home). We affirm.
Respondent-mother appeals in Docket No. 360615, and respondent-father appeals in Docket No. 360616. The appeals were consolidated by this Court to advance the efficient administration of the appellate process. In re A M Ray Minor, unpublished order of the Court of Appeals, entered March 22, 2022 (Docket Nos. 360615 and 360616).
Neither the trial court nor petitioner specified whether Subparagraph (c)(i) (conditions leading to adjudication) or Subparagraph (c)(ii) (other conditions) or both subparagraphs were the basis for termination. It appears, however, that both Subparagraphs (c)(i) and (c)(ii) are at issue in this case.
I. BASIC FACTS AND PROCEDURAL HISTORY
The petition initiating this case alleged that the respondents' home in Coral, Michigan- where they lived with mother's parents and brother-was harmful to AMR as a result of unsanitary and unsafe conditions. At an adjudication in September 2020, respondents admitted allegations in the petition. Specifically, they admitted that their home was in a state of disarray, that there were cat and dog feces on the floor and dishes throughout the home, that more than 20 cats as well as dogs lived in the house, and there were structural deficiencies in the house. Respondents also acknowledged that these conditions posed a threat to AMR and that, despite instructions to "clean it up," they had not cleaned the home.
During this case, respondents were given case services plans and provided with numerous services. Although unfit housing initially brought AMR into the trial court's jurisdiction, during the case, the Department of Health and Human Services (DHHS) also identified two additional barriers to reunification: parenting skills and emotional stability. To address the barriers to reunification, respondents were offered various services, including supervised parenting time, psychological assessments, Alpha Center Parenting Classes, an In-Home Education Program, the Foster Care Supportive Visitation Program, therapy at Community Hope, referrals for therapy at Transitions Counseling, a trauma assessment for AMR, housing resources such as EightCap, Early On and Early Head Start for AMR, a neurological assessment for AMR, medical and dental referrals, and case management services.
Between the beginning of the case and October 2021, respondents participated in, and completed some-though not all-of these services. They underwent psychological evaluations in November 2020 with Dr. Shannon Lowder, Psy.D, LLP. Dr. Lowder diagnosed father with Intermittent Explosive Disorder and Adjustment Disorder with Depressed Mood. Although she did not perform or recommend an IQ test, Dr. Lowder found evidence that father may have a "cognitive limitation," and she "assumed" that father "likely has a Borderline IQ." In comparison, regarding mother, Dr. Lowder saw "no evidence of significant cognitive impairment." However, in terms of mother's mental health, Dr. Lowder diagnosed mother with Adjustment Disorder with Depressed Mood and Persistent Depressive Disorder (Dysthymia).
Aside from their psychological evaluations, respondents regularly attended their parenting-time visits with AMR. They participated in parenting services though Catholic Charities, including the Foster Care Supportive Visitation Program, and they watched the Alpha Center parenting videos as instructed. They did not, however, complete their homework for the Alpha classes. They were also less successful with mental health counseling. Both respondents began counseling, but they were discharged from Community Hope for lack of participation and progress, and they chose not to avail themselves of additional counseling referrals. Notably, regarding housing, despite respondents' efforts, for many months they struggled to find new housing because father's criminal history prevented respondents from qualifying for the housing programs offered to them by the DHHS. Nevertheless, in July 2021, respondents moved in with mother's brother and his wife, AR. The house was physically fit for AMR, but the DHHS rejected the house because of the home's other occupants, namely AR.
In September 2021, the trial court reduced respondents' parenting time with AMR, which had been three hours each week, to a one-hour session each week for the Foster Care Supportive Visitation Program with Tori Patch. In October 2021, the trial court changed the goal from reunification to termination and determined that the DHHS should initiate termination proceedings. At that time, the trial court also ordered that reasonable efforts, including parenting time, should cease.
The DHHS petitioned for termination in January 2022, and the trial court held a one-day termination hearing in February 2022. Following the hearing, the trial court found grounds for termination under MCL 712A.19b(3)(c), (g), and (j). The trial court reasoned that respondents' housing problems had not been rectified because AR lived in the house with respondents. The trial court also concluded that respondents had not addressed their parenting-skill and emotional-stability issues. According to the trial court, respondents had "stubbornly" refused to participate in a case service plan to address issues that could have been "easily" resolved. Finding that termination was also in AMR's best interests, the trial court terminated respondents' parental rights. Respondents now appeal as of right.
II. REASONABLE EFFORTS
On appeal, respondents both contend that termination of their parental rights was improper because the DHHS failed to make reasonable efforts toward reunification, and in particular, failed to accommodate respondents' potential disabilities as required by the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. Related to reasonable efforts, mother also contends that her attorney provided ineffective assistance by failing to raise the ADA issue in the trial court. Apart from the ADA, father also argues that the trial court erred by reducing his parenting time in September 2021 and eliminating all reasonable efforts in October 2021.
A. STANDARDS OF REVIEW
This Court reviews for clear error a trial court's decision whether reasonable efforts were made. In re Sanborn, 337 Mich.App. 252, 258; 976 N.W.2d 44 (2021).
However, unpreserved issues are reviewed for plain error affecting substantial rights. 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. Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings. [Id. (quotation marks and citations omitted).]
"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). We review a trial court's factual findings, if any, for clear error, and questions of constitutional law are reviewed de novo. People v Armstrong, 490 Mich. 281, 289; 806 N.W.2d 676 (2011). When, as in this case, an evidentiary hearing has not been held, this Court's review is limited to mistakes apparent from the record. People v Thorne, 322 Mich.App. 340; 912 N.W.2d 560 (2017).
B. REASONABLE EFFORTS AND THE ADA
Under the probate code, 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 N.W.2d 637 (2017). See also MCL 712A.19a(2). Reasonable efforts by the DHHS must also comply with the ADA, meaning that the DHHS must "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.
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. [Id.]
The DHHS "cannot accommodate a disability of which it is unaware." Id. at 87. However, the obligation to make accommodations under the ADA extends to providing reasonable accommodations to "a parent with a known or suspected intellectual, cognitive, or developmental impairment." In re Sanborn, 337 Mich.App. at 263 (quotation marks and citation omitted). The DHHS's affirmative objection to use reasonable efforts means that the DHHS cannot be "passive" in its approach to providing accommodations. In re Hicks/Brown, 500 Mich. at 87-88 (quotation marks and citation omitted). Whether the DHHS has taken reasonable steps in response to a known or suspected disability is a question for the trial court in the first instance. Id. at 88 n 6.
Absent reasonable efforts toward reunification, termination of parental rights will be considered premature. See In re Mason, 486 Mich. 142, 152; 782 N.W.2d 747 (2010); see also In re Newman, 189 Mich.App. 61, 66-70; 472 N.W.2d 38 (1991) (concluding that termination was improper when the respondents needed help-that had not been provided-learning how to maintain hygiene in their home). However, although the DHHS must "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 Frey, 297 Mich.App. 242, 248; 824 N.W.2d 569 (2012). When challenging the reasonableness of the services offered, "a respondent must establish that he or she would have fared better if other services had been offered." In re Sanborn, 337 Mich.App. at 264.
1. MOTHER
The lower court record reveals that there was some reason to suspect that mother may have a disability, but the exact nature of that disability and the specific accommodations required for mother, if any, are not apparent from the record. On this record, mother cannot show plain error, and she cannot establish that she was denied the effective assistance of counsel. Specifically, during mother's psychological evaluation with Dr. Lowder in November 2020, mother self-reported that, while in school as a child, she was in special education, received speech therapy, and was diagnosed with ADHD. However, in the evaluation, Dr. Lowder also noted that she saw "no evidence of significant cognitive impairment," and according to Dr. Lowder, mother was "able to complete her paperwork, interview and testing with minimal assistance."
Mother's reports of being in special-education classes, and being diagnosed with ADHD, should have perhaps prompted some further inquiry from the DHHS into the reasons why mother attended special education in school and whether she had any disability that should be reasonably accommodated. With that said, as mother acknowledges on appeal, she did not raise this issue in the trial court, and consequently, there is no record to support that mother needed a reasonable accommodation or that reasonable accommodations were denied to mother that would have allowed her to fare better. As a comparison, in In re Hicks/Brown, the mother had known intellectual disabilities, as demonstrated by an IQ of 70 and readily observable "cognitive defects," and the medical professionals who examined the mother specifically opined that the mother could benefit from services tailored to her disability through a community mental-health agency called the Neighborhood Services Organization. In re Hicks/Brown, 500 Mich. at 84, 88 n 5, 89-90. In contrast, the record in this case does not clearly define the exact nature or extent of mother's disability, if any. Indeed, Dr. Lowder's impressions of mother support that mother did not have any significant cognitive defects. Further, there is no evidence-in the record-of a service that could have been provided as a reasonable accommodation for her potential disability. For example, although Dr. Lowder documented mother's self-reported information about special-education classes, Dr. Lowder did not make any specific recommendations for accommodations for mother, nor did she recommend any additional testing. In short, unlike in In re Hicks, from the lower court record in this case, it is unclear whether mother had a disability, and there is no evidence of a service that would have benefited mother but was not provided to her. Cf. In re Sanborn, 337 Mich.App. at 266 ("Unlike In re Hicks, the record does not establish that there were specific services that the DHHS failed to provide. Instead, mother has failed to identify what services the DHHS should have provided to accommodate her specific needs."). Mother has not otherwise explained how the services that were provided to her were not reasonable or appropriate for her. See id. at 265.
On appeal, mother does offer a list of programs, gleaned through Internet searches, that she suggests might have been appropriate for her. However, her Internet searches are not part of the lower court record that forms the basis for this Court's review. See MCR 7.210(A)(1). Moreover, even accepting that these programs exist does not support that they were available in Montcalm County in particular, and without more information about the programs and the specific nature of mother's disability, if any, there is no basis to conclude that these programs were suitable for mother in particular. Without more information in the record, this Court is left to simply speculate that there are other services that the DHHS could have offered. See id. And such speculation is not sufficient to show that mother would have fared better with different services, and it is not sufficient to establish plain error. See In re Sanborn, 337 Mich.App. at 264-266. Consequently, mother's claim under the ADA lacks merit.
For similar reasons, mother's ineffective assistance claim related to counsel's failure to raise an ADA claim in the trial court lacks merit. Absent evidence of a reasonable accommodation that could have been provided to mother or some evidence that the services that were provided were inappropriate, any objection to the case service plan, or request for additional services, would have been futile, and counsel cannot be considered ineffective for failing to make a futile objection. See People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010). At most, given mother's reports of special-education classes and her other issues while in school, the record supports that her attorney should have perhaps requested additional testing or inquired about mother's need for special-education classes. However, even if counsel acted unreasonably by not requesting further investigation of this issue, mother cannot establish prejudice. See In re Martin, 316 Mich.App. 73, 85; 896 N.W.2d 452 (2016). Mother did not seek an evidentiary hearing on her ineffective assistance claim, and the existing record-without any specific information about the nature and extent of mother's disability, if any, and without any recommendations for services that were not provided-does not support that an additional evaluation would have led to recommendations for accommodations with which mother would have fared better. See In re Sanborn, 337 Mich.App. at 264-266. This Court cannot simply speculate that reasonable accommodations were denied to mother or that she would have fared better with different services. See id. On this record, mother cannot show she was prejudiced by counsel's failure to raise an ADA claim in the trial court.
2. FATHER
As with mother, there is evidence that should have prompted further investigation by the DHHS, but on the record in this case, father cannot establish plain error, and he is not entitled to relief on appeal. In particular, early in these proceedings, father underwent a psychological evaluation with Dr. Lowder. During this evaluation, father self-reported that he had been a special-education student in school. He also self-reported that he had been diagnosed with a "learning disorder" and that he had ADHD. Dr. Lowder considered this as "evidence of cognitive limitation," and she "assumed that [father] likely has a Borderline IQ." Noting that the evaluation was being conducted virtually, Dr. Lowder indicated that it was not possible for her to conduct an IQ test during the evaluation. Dr. Lowder did not, however, recommend an IQ test for father, nor did she recommend any specialized services or reasonable accommodations for him. Undisputedly, the DHHS did not provide father with any specialized services or make reasonable accommodations to the services that were provided. At most, there was evidence that the caseworker helped respondents schedule some appointments.
Father's ADA claim is unpreserved. In the trial court, early in the case, father's attorney noted that father "struggled with reading." However father's attorney also noted that mother and the attorney were helping father with reading for the case, and his attorney indicated that the recommendations in the case service plan were otherwise "appropriate." After Dr. Lowder's evaluation, there were references to father's possible "borderline IQ," but there were no requests for accommodations or objections to the case service plan at that time. It was not until closing arguments during the termination hearing in February 2022 that father actually asserted that he should have been given an IQ test to see whether he needed reasonable accommodations. Specifically, counsel stated that she did not know whether father had a "disability," but she asserted that more could have been done-such as conducting an IQ test-to see if the services needed to be revamped to help father perform better. Given that Dr. Lowder completed her evaluation in November 2020, at which time father's potentially low IQ should have been apparent, father's attorney was aware of a potential need for accommodations (or at least the need for an IQ test) as of November 2020, at the latest. In these circumstances, waiting until February 2022 to request an IQ test or to otherwise challenge the adequacy of the services provided was not a timely objection. See In re Sanborn, 337 Mich.App. at 263 n 3; see also In re Hicks/Brown, 500 Mich. at 89 n 9. This is not a case in which the initial circumstances changed. Cf. In re Atchley, Mich. App,; N.W.2d (2022) (Docket Nos. 358502 and 358503); slip op at 2. Because father failed to timely raise the ADA issue, father's ADA argument is unpreserved and reviewed for plain error. See In re Sanborn, 337 Mich.App. at 258.
Since November 2020, everyone in this case has been on notice that father potentially had a borderline IQ and a diagnosed learning disability. Troublingly, despite its affirmative obligations to make reasonable efforts, and to comply with the ADA, the DHHS apparently did nothing to investigate father's IQ or to determine whether he needed reasonable accommodations. On appeal, the DHHS argues that their failures are immaterial because father was not fully engaged in the services that were offered. The DHHS is mistaken in this regard. The DHHS has an affirmative obligation to provide services and to comply with the ADA, regardless whether a parent has shown themselves motivated to complete a case service plan. See In re Hicks/Brown, 500 Mich. at 90 n 11. In short, it is troubling that the DHHS and the trial court were wholly aware of father's possible borderline IQ and possible learning disability but no action was taken to determine whether he in fact had a disability, the extent of that disability, and whether that disability required reasonable accommodations.
With that said, as with mother, although the record provides support for the assertion that the DHHS should have investigated a possible disability, on the available record, there is no evidence to establish that father could not have benefited from the services provided to him or that he would have fared better with different services. See In re Sanborn, 337 Mich.App. at 265-266. Indeed, the case is very similar to In re Sanborn. In that case, the recommendations following a psychological evaluation included a recommendation for a comprehensive IQ test for the respondent-mother. Id. at 265. Although, unlike the present case, an expert had actually recommended an IQ test, the test was not conducted. Id. at 264-265. Despite the DHHS's failure to obtain an IQ test or to otherwise investigate the mother's possible disability, this Court concluded that the mother's ADA argument lacked merit because the mother offered merely conclusory assertions that the services provided were inadequate for her intellectual disability, and the mother failed to identify other services that would have allowed her to fare better. Id. at 265-266.
The same is true in this case. Father makes the general assertion that he may not have really understood what he was being taught in the services provided to him, but he has not identified any other services that could have been provided to allow him to fare better, and unlike in Hicks, there is no evidence of a service that would have benefited father but that was not provided to him. Cf. id. In keeping with In re Sanborn, father's ADA argument lacks merit, and he is not entitled to relief on this basis. See id.
C. PARENTING TIME AND THE END OF REASONABLE EFFORTS
With regard to reasonable efforts, father also argues that the trial court erred by restricting parenting time in September 2021 and ordering the end of reasonable efforts in October 2021. However, in making this argument, father fails to cite any relevant authority to support his position, and by failing to do so, he has abandoned this argument. See In re Costs &Attorney Fees, 250 Mich.App. 89, 106; 645 N.W.2d 697 (2002). In any event, even if the issue is considered, father would not be entitled to relief on appeal.
The only authorities cited by father are MCR 3.963(B)(1)(c) and MCL 712A.14b(1)(c), which relate to a reasonable-efforts determination before removing a child from the home and pending a preliminary hearing. These provisions do not address the issues in this case related to (1) restrictions on parenting time during the dispositional phase of proceedings, (2) parenting time pending a termination hearing, or (3) the necessity of reasonable efforts pending a termination hearing.
With regard to parenting time, we note that parenting time during the dispositional phase of proceedings is within the trial court's discretion, and we see no error in the reduction of respondents' parenting time in September 2021 following reports that AMR was exhibiting negative behaviors, with increasing frequency and severity, following her parenting-time visits with respondents. See In re Laster, 303 Mich.App. 485, 490; 845 N.W.2d 540 (2013). With regard to suspension of parenting time in October 2021, the trial court did not plainly err by suspending parenting time pending the termination hearing. See MCL 712A.19b(4); MCR 3.977(D). Lastly, with regard to reasonable efforts more generally, the DHHS provided respondents with more than a year of services, during which father often refused to participate. Father showed hostility toward caseworkers and services providers, he was discharged from counseling for failure to participate, he failed to follow through with additional counseling referrals, he failed to complete homework for parenting-time classes, and he was resistant to parenting instruction, informing caseworkers that he did not need someone telling him how to parent his daughter. Given father's demonstrated resistance to services, even assuming that the DHHS should have done more between October 2021 and February 2022, the record does not support that father would have fared better with additional services. See In re Sanborn, 337 Mich.App. at 265-266; see also In re Frey, 297 Mich.App. at 248. Consequently, father is not entitled to relief on this basis.
III. STATUTORY GROUNDS
Next, respondents argue that the trial court clearly erred by finding clear and convincing evidence supporting termination of their parental rights.
A. STANDARDS OF REVIEW
We review for clear error the trial court's decision that statutory grounds for termination have been proven by clear and convincing evidence. In re Olive/Metts Minors, 297 Mich.App. 35, 40; 823 N.W.2d 144 (2012). "A trial court's decision is clearly erroneous if although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." Id. at 41 (quotation marks, citation, and brackets omitted). This Court gives deference to the trial court's "special opportunity to judge the credibility of the witnesses." In re HRC, 286 Mich.App. 444, 459; 781 N.W.2d 105 (2009).
B. ANALYSIS
"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." In re Moss, 301 Mich.App. 76, 80; 836 N.W.2d 182 (2013). In this case, the trial court terminated respondents' parental rights under MCL 712A.19b(3)(c), (g), and (j). These provisions state:
(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.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, 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).]
1. MCL 712A.19b(3)(c)(i) AND (ii)
Termination is appropriate under MCL 712A.19b(c)(i) "when the conditions that brought the children into foster care continue to exist despite time to make changes and the opportunity to take advantage of a variety of services." In re White, 303 Mich.App. 701, 710; 846 N.W.2d 61 (2014) (quotation marks and citation omitted). In contrast, under MCL 712A.19b(c)(ii), the "other" conditions at issue refer to conditions to which a parent made no admissions at the time of their jurisdictional pleas. In re Pederson, 331 Mich.App. 445, 475; 951 N.W.2d 704 (2020). In this case, although not distinguishing between Subparagraphs (c)(i) and (c)(ii), the trial court identified three conditions that respondents failed to rectify: housing, parenting skills, and emotional stability.
Considering the petition and respondents' jurisdictional admissions, the only condition relevant to Subparagraph (c)(i) was respondents' unsanitary and unsafe housing. With regard to whether this condition was rectified, respondents searched for new housing during this case, but were for many months unsuccessful primarily because father's criminal history prevented them qualifying for the housing programs the DHHS offered to them. Nevertheless, respondents in fact found new housing-in July 2021-approximately seven months before the February 2022 termination hearing in this case. There is no evidence whatsoever that the new house was not clean and fit for AMR. And there was no evidence that respondents failed to maintain the house in a clean and fit condition during that seven-month period. Indeed, the DHHS raised no objections to the physical condition of the home, instead declaring that it was unfit because of the occupants of the home. When the condition that led to adjudication was an unclean home, unfit housemates are a new condition, implicating Subparagraph (c)(ii). In other words, termination under Subparagraph (c)(i) was not clearly and convincingly supported by the evidence when there was no evidence to show that respondents continued to live in an unsanitary home that was unfit for AMR's habitation.
Moreover, to the extent that the trial court concluded that the home was unfit because mother's sister-in-law, AR, lived in the house, whether viewed as a basis for termination under Subparagraphs (c)(i) or (c)(ii), the assertion that AR posed a danger to AMR-or anyone-was nothing but conjecture. Although there are vague references in the record to AR having a mental illness, possibly bipolar disorder, petitioner presented no evidence whatsoever that AR posed a danger to AMR. Contrary to the DHHS's implied reasoning, people with mental illnesses are not necessarily dangerous, and they are not, as a class, categorically precluded from being in the presence of children. If AR in particular posed a danger to AMR, the DHHS needed to come forth with evidence to establish that fact, but it did not. Cf. In re Sours, 459 Mich. 624, 635; 593 N.W.2d 520 (1999) (concluding that the petitioner failed to establish that the mother's new boyfriend posed a danger to her children when nothing was known about his character except for the fact that he had pleaded guilty to an assault charge). In short, there is no evidence to support the trial court's conclusion that the home obtained by respondents was unfit because AR lived there, and the record does not support termination under Subparagraph (c)(i) or (c)(ii) on this basis.
Apart from issues related to housing, the "other conditions" identified by the trial court as not having been resolved also did not clearly and convincingly support termination under Subparagraph (c)(ii). As noted, for purposes of this subsection, "other" conditions means conditions other than those to which respondents made admissions at the adjudication phase of proceedings. See In re Pederson, 331 Mich.App. at 475. Significantly, as stated in the statute, for purposes of Subparagraph (c)(ii), the "other" conditions at issue nevertheless have to rise to the level of conditions "that cause the child to come within the court's jurisdiction." MCL 712A.19b(3)(c)(ii). The "other" conditions that the trial court identified as not having been rectified in this case-parenting skills and emotional stability-did not rise to this level.
Regarding parenting skills, at the termination hearing, the major ongoing concern regarding mother was her habit of "babying" AMR by, for example, providing too much assistance with cleaning up toys or helping AMR use the restroom. It is somewhat disturbing that the DHHS and the trial court thought it appropriate to terminate mother's parental rights on the basis of her failure to rectify her parenting skills when her major unresolved deficiency in this regard was reportedly "babying" AMR. "Babying" a child hardly qualifies as the kind of conduct that would bring a child within the court's jurisdiction, and consequently, it is not a condition that can support termination under Subparagraph (c)(ii). Likewise, with regard to father, the major ongoing concern was that he failed to adequately "engage" with AMR. That is, he reportedly waited for AMR to initiate their interactions rather than being "proactive," and there was a report of him sitting at a table rather than playing with AMR on the floor. A parent being somewhat aloof is not a basis for assuming jurisdiction over a child, and consequently, it is not a basis for terminating parental rights under Subparagraph (c)(ii). With regard to parenting skills, it was also noted that respondents could be inconsistent with discipline. For example, they would threaten to place AMR in time-out, but then not follow through on that threat. Certainly, like most parents, respondents could improve their parenting skills, but being less than an ideal parent is not a basis for assuming jurisdiction over a child. See In re Kellogg, 331 Mich.App. 249, 256-257; 952 N.W.2d 544 (2020) (concluding that the trial court erred by assuming jurisdiction on the basis of evidence that a parent was "less than ideal," yelled and swore at her child, lacked consistent rules and structure, and had difficulty managing the child's wants and controlling the child); see also In re Newman, 189 Mich.App. at 70 ("Respondents are less than ideal parents. But this is not a perfect world."). Consequently, these parenting-skill concerns would not cause AMR to come within the court's jurisdiction, and failure to rectify these deficiencies does not support termination under Subparagraph (c)(ii).
Early in the case, there had been some other concerns about parenting skills, including father "flicking" AMR on the head. If these or other parenting-skills issues had not been rectified, that is not apparent from the termination hearing. Indeed, the most recent caseworker-Autumn Booth-had not witnessed any attempts at physical discipline during her tenure with the case. The focus of the termination hearing in terms of unresolved parenting issues for purposes of Subparagraph (c)(ii) was instead mother's "babying," father's lack of engagement, and inconsistency in discipline, none of which warrant termination of a parent's rights.
Likewise, regarding emotional stability, as a result of psychological evaluations during this case, father was diagnosed with Intermittent Explosive Disorder and Adjustment Disorder with Depressed Mood, and mother was diagnosed with Adjustment Disorder with Depressed Mood and Persistent Depressive Disorder (Dysthymia). Mental-health diagnoses are not, on their own, necessarily a basis for assuming jurisdiction or terminating parental rights, and very little evidence was brought forth to indicate how, if at all, these diagnoses affected respondents' parental fitness. See In re Kellogg, 331 Mich.App. at 255-256 (finding no basis for jurisdiction when, although the mother was being treated for anxiety and depression, there was no indication how, or to what extent, those conditions affected her fitness as a parent). In reasoning that emotional stability provided grounds for termination, the trial court simply noted one incident at the park in July 2021 when respondents yelled at a caseworker in front of AMR, which the trial court characterized as causing AMR to become "upset." However, something more than yelling and swearing-even yelling and swearing directly at a child-is necessary to prove parental unfitness and to bring a child within the court's jurisdiction. See id. at 256-257 (finding that the parent's verbal aggression with a child, which involved yelling, swearing, and standing over the child in an intimidating way did not establish parental unfitness). Although the incident in the park was apparently the most egregious incident in this case, Booth and Patch also described other minor incidents-when AMR was not even present-when respondents were "hostile" or argumentative with service providers, including an incident when mother reportedly "tossed" a pen. Without something more, the outbursts described in this case would not support the trial court's assumption of jurisdiction, see id., and consequently, the evidence presented with regard to respondents' emotional stability does not support termination under Subparagraph (c)(ii) as a failure to rectify "other conditions" "that cause the child to come within the court's jurisdiction."
We are mindful that father has a second-degree criminal sexual conduct conviction and that a trauma assessment indicated that AMR may have suffered some sort of "trauma" in her life, leading to a diagnosis with post-traumatic stress disorder. The fact remains, however, that if petitioner believes that respondents-or father in particular-have harmed AMR in the past or otherwise done something to "traumatize" AMR, or more specifically, that their emotional stability has actually had a negative impact on AMR, petitioner needed to explicitly make those allegations and prove them with evidence. Cf. In re Jackisch/Stamm-Jackisch, Mich. App,; N.W.2d (Docket No. 357001) (2022); slip op at 5 ("[M]ere references to domestic violence in the abstract cannot be used to support termination.... Hints and suggestions are not enough. If petitioner believes that respondent was a perpetrator of domestic violence, it must say so explicitly and provide evidence in support of that conclusion."). See also In re DMK, 289 Mich.App. 246, 257; 796 N.W.2d 129 (2010) (recognizing that termination on the basis of circumstances different than those admitted by a parent must be proved by legally admissible evidence under MCR 3.977(F)(1)(b)). As it stands, the DHHS sought termination on the basis of emotional instability without endeavoring to explain or prove how this alleged instability affected AMR, and other than noting that AMR appeared "upset" in the park, the trial court similarly failed to make findings to support that AMR has been negatively impacted by respondents' alleged emotional instability. See In re Kellogg, 331 Mich.App. at 256-257.
In sum, the evidence does not clearly and convincingly support termination under Subparagraph (c)(i) when petitioner failed to show that the cleanliness issues related to respondents' housing continued to exist. The evidence regarding AR-without any evidence to support that AR poses a danger to AMR-also failed to clearly and convincingly support that respondents' home was unfit. The other issues in this case, which according to the trial court were so minor that they could have been "easily" resolved, did not raise to the level of bringing AMR within the trial court's jurisdiction, and consequently, failure to rectify these issues did not support termination under Subparagraph (c)(ii).
2. MCL 712A.19b(3)(g) AND (j)
In contrast, we conclude that the trial court did not clearly err by finding that clear and convincing evidence supported termination of respondents' parental rights under MCL 712A.19b(3)(g) and (3)(j) because respondents failed to comply with their case service plan. Failure to substantially comply with a court-ordered case service plan is evidence that returning the child to the parent may cause a substantial risk of harm to the child and that a parent will not be able to provide proper care and custody. In re Trejo, 462 Mich. 341, 346 n 3, 361-362 &n 17; 612 N.W.2d 407 (2000); In re Kaczkowski, 325 Mich.App. 69, 77; 924 N.W.2d 1 (2018).
In this case, the case began in August 2020, and the DHHS prepared a case service plan for respondents. The plan involved numerous services, including parenting time, psychological assessments, Alpha Center Parenting Classes, In-Home Education Program through Catholic Charities, Parent Education, the Foster Care Supportive Visitation Program, therapy at Community Hope, referrals for therapy at Transitions Counseling, a trauma assessment for AMR, housing resources such as EightCap, Early On and Early Head Start, a neurological assessment for AMR, medical and dental referrals, and case management services. According to the record in this case, the evidence indicated that, although respondents made some efforts by, for example, consistently attending parenting-time visits and searching for housing, they otherwise failed to comply with, and benefit from, substantial portions of their treatment plans.
For example, although they underwent psychological evaluations as ordered and participated in a few counseling sessions, respondents were discharged from counseling for lack of progress and refusal to participate, and they failed to follow through with subsequent referrals for counseling through a different provider. Indeed, they reported that they did not think they needed counseling. Counseling was one of the main components of their agency agreement, and they ultimately failed to comply with this requirement. Another component of their plan included parenting classes. Although they watched Alpha parenting class videos as ordered, they failed to complete their homework for the class. They were also offered more hands-on instruction with Patch through the Foster Care Supportive Visitation Program, but, although they attended these sessions and showed some improvement, they reportedly failed to successfully implement everything they had been taught in their visits with AMR. As part of services provided to the family, AMR also underwent a trauma assessment and was provided therapy, but father, in particular, seemed unaware of the results of AMR's evaluation, and mother opposed therapy for AMR. More generally, respondents were described as being "hostile" toward caseworkers and service providers, and they were resistant to participating in services, often indicating that they did not need services or that they knew how to parent their children. These facts support the trial court's conclusions that respondents were unwilling to engage in the services provided and that they ultimately failed to comply with, and benefit from, their case service plans. This failure to comply with their case service plans, and to recognize and respond to AMR's mental and emotional needs, supports termination under Subsections (3)(g) and (3)(j). See In re Kaczkowski, 325 Mich.App. at 77; In re White, 303 Mich.App. at 710-711.
Respondents-particularly mother-assert that statutory grounds for termination should not have been found because reasonable efforts were not made and she was denied the effective assistance of counsel. For the reasons previously discussed, respondents' arguments related to reasonable efforts and the effectiveness of mother's counsel lack merit.
In disputing whether statutory grounds for termination exist, regarding Subsection (3)(g) in particular, father notes that the trial court did not address father's finances. Specifically, under Subsection (3)(g), termination is only appropriate when a parent, "although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child ...." The trial court failed to address father's financial ability to provide proper care and custody for AMR. However, any error in this regard appears harmless. Respondents' resources are not substantial, but father receives SSI and mother works full-time at Meijer. Indeed, father specifically testified at the hearing that respondents were able to financially care for AMR. On this record, the trial court's failure to specifically address father's financial capabilities for purposes of Subsection (3)(g) appears harmless. See MCR 2.613(A).
In sum, given respondents' failure to comply with their case service plans, the trial court did not clearly err by finding grounds for termination under Subdivisions (g) and (j). In these circumstances, because only one statutory ground is required to terminate parental rights, any error in relying on Subparagraphs (c)(i) and (c)(ii) was harmless. See In re Powers Minors, 244 Mich.App. 111, 118; 624 N.W.2d 472 (2000).
IV. BEST INTERESTS
Lastly, respondents argue that the trial court clearly erred by concluding that termination of their parental rights was in AMR's best interests.
A. STANDARDS OF REVIEW
We review for clear error the trial court's determination that termination is in a child's best interests. In re Olive/Metts Minors, 297 Mich.App. at 40. "A trial court's decision is clearly erroneous if although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." Id. at 41 (quotation marks, citation, and brackets omitted). This Court gives deference to the trial court's "special opportunity to judge the credibility of the witnesses." In re HRC, 286 Mich.App. at 459.
B. ANALYSIS
"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. at 40. "[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. at 90. In determining a child's best interests, the trial court should weigh all the available evidence and consider a wide variety of factors, including the child's bond to the parent, the parent's parenting ability, and the child's need for permanency, stability, and finality. In re White, 303 Mich.App. at 713. The trial court may also consider a parent's compliance with his or her case service plan. Id. at 714. Whether a child has special needs, and whether a parent will be able to meet those needs, may also be considered. See, e.g., In re Pederson, 331 Mich.App. at 478; In re Rippy, 330 Mich.App. at 361. The focus of the best-interest analysis is the child, not the parent. In re Moss, 301 Mich.App. at 87.
In this case, the trial court analyzed AMR's best interests as follows:
[I]t's hard to determine that it's in the child's best interest to remain with the parents when they know what they're required to do to have the child returned to their care and custody and they willingly, or stubbornly, refuse to do so. To this Court's-in this Court's opinion, the failure to participate in counseling, willfully, stubbornly, knowing what the consequences were going to be shows a lack of love and affection for the child, and a lack of concern for the child. The parents lack of understanding of the child's wants, and more particularly, the child's needs for counseling and therapy. The father didn't even know what the results of the trauma assessment were, and neither did the mother, and they don't believe that she needed counseling, even though she was diagnosed with anger management issues, showing that they don't understand the medical or emotional needs of the child.
For those reasons I'm finding that it is in the best interest of the child to terminate the parents' parental rights. I regret that I had to do this. And the parents could have fixed these issues, and didn't, chose not to.
Considering the trial court's analysis, the trial court did not clearly err by concluding that termination was in AMR's best interests. The trial court considered respondents' failure to comply with their case service plan, which, as noted, is evidence that parents cannot provide proper care and custody and that a child may be harmed if returned to the parent's care. See In re Kaczkowski, 325 Mich.App. at 77; In re White, 303 Mich.App. at 710-711. Further, consistent with evidence presented in this case, the trial court recognized that AMR-who had behavioral problems while in foster care-needed counseling, but respondents appear unwilling or unable to meet this need. This inability to meet a child's specific needs also supports that termination was in AMR's best interests. See In re Pederson, 331 Mich.App. at 478. Overall, the trial court did not clearly err by relying on respondents' failure to complete their case service plan and AMR's need for therapy to conclude that termination of respondents' parental rights was in AMR's best interests. See id.; In re White, 303 Mich.App. at 713.
In the context of AMR's best interests, respondents again argue that they did not receive reasonable efforts. Mother again asserts that her attorney was ineffective, and father maintains that he did not fail to comply with his service plan but instead did not understand the information. For the reasons already discussed, respondents' arguments related to reasonable efforts and their case service plans lack merit.
In contrast, on appeal, father argues that the trial court failed to consider a wide variety of factors, and he asserts that, at a minimum, the case should be remanded for additional fact-finding. We disagree. In termination proceedings, "[b]rief, definite, and pertinent findings and conclusions on contested matters are sufficient." MCR 3.977(I)(1). And although a trial court must consider a wide variety of factors, with the exception of certain matters not applicable in this case (such as a child's placement with a relative), there is no set list of factors that a trial court is required to consider. Although the trial court could have perhaps considered more factors, its analysis appears sufficient to enable appellate review, and we see no reason to remand for additional fact-finding.
"[T]he fact that the children are in the care of a relative at the time of the termination hearing is an explicit factor to consider in determining whether termination was in the children's best interests." In re Olive/Metts Minors, 297 Mich.App. at 43 (quotation marks and citation omitted).
Affirmed.