Opinion
No. 350244
04-23-2020
In re BANKS/LONG, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 13-512922-NA Before: SAWYER, P.J., and LETICA and REDFORD, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating respondent's parental rights to the minor children AB, AL, and KL, under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g) (failure to provide proper care and custody) and (j) (reasonable likelihood that the child will be harmed if returned to parent). We affirm.
The father and unknown punitive father of the children are not parties to this appeal.
Petitioner asks this Court to strike respondent's brief as violative of the 50-page limit contained in MCR 7.212(B). But, as discussed in respondent's brief, it is compliant with Administrative Order 2019-6, a pilot program authorizing the filing of briefs that are more readable on electronic displays. This program was initiated on October 23, 2019, and petitioner's brief was filed on December 2, 2019. Consequently, we decline petitioner's request.
I. BACKGROUND
This is not the first time that these children have been in care. In 2013, KL tested positive for narcotics at birth and the children were removed to address respondent's substance abuse and untreated mental health issues. After respondent completed her treatment plan, the children were returned to her and the case was dismissed in early 2015.
In May 2017, petitioner, the Department of Health and Human Services (DHHS) filed a petition seeking termination of respondent's parental rights. The court exercised jurisdiction over the children based upon respondent's no-contest plea, admitting to a history of substance abuse and mental health difficulties. Following a multi-day hearing, the trial court found that DHHS had proven statutory grounds to terminate respondent's parental rights, but also determined that termination of respondent's parental rights was not in the children's best interests at that time. The trial court developed a treatment plan aimed at reunifying respondent with the children. Under the terms of the treatment plan, respondent was to engage in substance abuse treatment, participate in drug screens, attend Alcoholics Anonymous (AA) or Narcotics Anonymous (NA), obtain a sponsor, complete group and individual therapy, continue her mental health treatment and provide DHHS with access to her treatment records, complete parenting classes, and provide proof of suitable housing and legal income. Because respondent asserted that she had been diagnosed with a learning disability, the trial court also ordered DHHS to evaluate her disability and provide her with modified services as required.
Over the next year, the trial court conducted several dispositional review hearings during which it found respondent was either noncompliant or minimally compliant with the terms of her treatment plan. While respondent had sought mental health treatment from a third-party provider, DHHS was unable to obtain confirmatory records from either the provider or respondent. The information DHHS was able to obtain indicated that respondent was not attending the services consistently and that the services did not meet the requirements of the trial court's treatment plan. DHHS sought to accommodate respondent's purported learning disability and obtain relevant information from respondent's mental health service provider and respondent concerning the nature of respondent's disability, but neither source provided documentation or further information. Moreover, respondent failed to attend drug screens or complete parenting classes, could not provide proof of attendance at AA or NA, and only visited the children sporadically—sometimes as the result of miscommunications. DHHS attempted to assess respondent's home throughout this period, but respondent either failed to provide an address or canceled scheduled appointments. Throughout the dispositional review period, respondent stated she had applied for social security benefits but failed to update DHHS concerning the application's progress. After nearly a year of working with respondent, DHHS filed a supplemental petition seeking to terminate respondent's parental rights.
The trial court heard testimony concerning DHHS's difficulty in obtaining information from respondent and respondent's noncompliance with the terms of her treatment plan. Additionally, the trial court heard testimony from the foster care workers that termination of respondent's parental rights was in the children's best interests. The trial court found that statutory grounds for termination of respondent's parental rights existed. The trial court also found that termination of respondent's parental rights and adoption, rather than guardianship, was in the children's best interests. This appeal followed.
II. REASONABLE EFFORTS
Respondent argues that the trial court erred in finding that DHHS engaged in reasonable efforts to reunify respondent with the children by failing to accommodate respondent's learning disability. We disagree.
Generally, "issues that are raised, addressed and decided by the trial court are preserved for appeal." In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). More specifically, this Court has held a respondent must "object or indicate that the services provided to them were somehow inadequate" at the time the treatment plan is adopted in order to preserve a challenge that DHHS failed to provide reasonable services for appellate review. In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). While respondent asserted in the trial court that she had a learning disability, and respondent's counsel expressed concern during one of the dispositional review hearings that she was unsure if DHHS was taking respondent's learning disability into account when providing services, respondent never objected to DHHS's treatment plan at the time it was presented and adopted nor did she argue below that the services DHHS provided were inadequate. Thus, this issue is unpreserved.
We review unpreserved claims for plain error affecting substantial rights. In re TK, 306 Mich App at 703. To avoid forfeiture under the plain error rule, three requirements must be met: (1) error occurred; (2) the error was plain, i.e., clear or obvious; (3) and the plain error affected substantial rights." In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2018) (quotation marks and citation omitted). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008). When an issue is preserved, we review a trial court's findings that "reasonable efforts were made to preserve and reunify" a family for clear error. In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005). "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 Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
"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." 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, under the requirements of the Americans with Disabilities Act (ADA), 42 USC 12101, et seq, "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. Accordingly, our Supreme Court has held DHHS's "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." In re Hicks/Brown, 500 Mich at 86. While DHHS must be made of aware of a disability before it can accommodate it, once DHHS knows of a disability it cannot "be passive in its approach as far as the provision of accommodations is concerned." Id. at 88 (cleaned up). If DHHS fails to modify "its services as reasonably necessary to accommodate a parent's disability," then its efforts at reunification are not reasonable. Id. at 90. "And termination is improper without a finding of reasonable efforts." Id.
In this case, we conclude that the trial court did not plainly err in finding that DHHS engaged in reasonable efforts aimed at reunification. The record belies respondent's assertion that DHHS was passive in providing accommodations. Throughout the dispositional review phase of these proceedings, DHHS consistently maintained that it would provide modified services to accommodate respondent's purported learning disability once it received information diagnosing respondent's disability and the accommodations that would best address respondent's needs. The record reflects that DHHS made many attempts to obtain this information from respondent, from respondent's third-party mental-health treatment provider, and through referrals of respondent for psychological evaluation. Despite these attempts, DHHS was unable to obtain information concerning the nature of the learning disability aside from respondent's own testimony that the disability made it difficult for her to remember dates. Respondent's foster care worker accommodated respondent by communicating via text message so that respondent would have an easily accessible written record of dates, times, and services. Considering the scarce evidence concerning the nature of respondent's learning disability, coupled with DHHS's efforts to obtain this information, it stands to reason that DHHS accommodated respondent's alleged disability as best it could. Thus, respondent's arguments on appeal do not demonstrate plain error.
Respondent also asserts that DHHS failed to engage in reasonable efforts aimed toward reunification by failing to be flexible in providing tailored services to respondent. In support, respondent contends that DHHS was inflexible by requiring her to terminate services from the third-party treatment provider despite her successes with it. The record again belies respondent's claim. While it is true that respondent obtained mental health treatment on her own initiative and signed a waiver releasing records of that treatment to DHHS, the circumstances concerning respondent's termination of these services is not as straightforward as respondent now asserts. Throughout the dispositional review phase, DHHS attempted to obtain information concerning respondent's treatment from the third-party provider, but apart from a single letter that simply listed the services in which respondent participated, there was no detailed information provided. What DHHS did learn about respondent's treatment indicated that respondent inconsistently complied with treatment and that the treatment she did partake in did not satisfy the requirements of her treatment plan. As a result, DHHS informed respondent that she would be referred to additional services to satisfy the treatment plan's requirements and enable DHHS to have access to the treatment records to monitor respondent's progress. Respondent failed to follow through and opted to terminate the mental health treatment.
Thus, the record reflects that, far from being inflexible, DHHS instead consistently sought to provide respondent with a variety of services that would assist her in complying with the treatment plan and achieving the goal of reunification. Respondent has failed to identify additional services, other than continuing the third-party treatment, DHHS should have offered or how she would have fared more favorably if they had been offered. The fact that respondent obtained third-party treatment does not, in itself, provide evidence that DHHS failed to provide reasonable services. See In re Fried, 266 Mich App at 543 ("The fact that respondent sought treatment independently in no way compels the conclusion that petitioner's efforts toward reunification were not reasonable, and . . . does not suggest that respondent would have fared better if the worker had offered those additional services to him."). Accordingly, the trial court did not plainly err in finding that DHHS engaged in reasonable efforts toward reunification.
In light of our conclusion that the DHHS engaged in reasonable efforts to reunify respondent with her children, respondent's argument that the failure to provide modified or tailored services created the grounds for termination lacks merit. --------
III. BEST INTERESTS
Respondent next argues that the trial court clearly erred in finding termination of respondent's parental rights was in the children's bests interests because the finding was not supported by the record and because the trial court failed to make individualized determinations or consider guardianship for the children. We disagree.
"Once a statutory ground for appeal has been proven, the trial court must find that termination is in the [children's] best interests before it can terminate parental rights." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). "[W]hether termination of parental rights is in the best interests of the [children] must be proven by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The trial court's ruling regarding bests interests is reviewed for clear error. In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016). "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 Ellis, 294 Mich App at 33.
"The trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). In considering the children's best interests, the trial court's focus must be on the children and not the parent. In re Moss, 301 Mich App at 87. "In deciding whether termination is in the child's best interests, the court may consider the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, and the advantages of a foster home over the parent's home." In re Olive/Metts, 297 Mich App at 41-42 (citations omitted). "The trial court may also consider a parent's history of domestic violence, the parent's compliance with his or her care service plan, the parent's visitation history with the child, the children's well-being while in care, and the possibility of adoption." In re White, 303 Mich App at 714. When the trial court makes its best-interests determination, it may rely on the entire record, including the evidence establishing statutory grounds for termination. In re Trejo, 462 Mich 341, 353-354; 612 NW2d 407 (2000), superseded by statute on other grounds as recognized by In re Moss, 301 Mich App at 83. In cases concerning multiple children, the trial court must determine each child's interests individually. In re Olive/Metts, 297 Mich App at 43-44. However, a trial court is not required to make individual and redundant best-interest findings for each child when the best interests of the children do not significantly differ. In re White, 303 Mich App at 715-716.
Respondent argues that the trial court erred by failing to provide individualized best-interests findings for AB because AB's circumstances differed from those of AL and KL. Most notably, at the time of the termination hearing, AL and KL were placed with their paternal aunt while AB was in nonrelative foster care. Certainly, these circumstances were sufficiently different that the trial court would be expected to engage in separate best-interests findings. And, here, the trial court fulfilled its obligation. Although the trial court's statements on the record at the termination hearing were limited, its written order acknowledged the different circumstances in which the children were placed and then separately addresses their best interests. Consequently, the record belies respondent's claim.
Respondent next asserts that the record did not support the trial court's findings that termination was in the children's best interests. When stating its findings of fact during the termination hearing, the trial court noted that respondent had been substantially noncompliant with the treatment plan, and that respondent's lack of progress in the treatment plan and failure to visit regularly had a negative effect on the children. In its written order, the trial court found that termination was in AL and KL's best interests given the length of time they had been in foster care and respondent's lack of progress or participation in her treatment plan. The written order also noted that AB had expressed a desire for adoption and that all three children deserved stability and permanency.
These factors weighed in favor of termination and the record supports the trial court's findings. The trial court heard testimony that respondent consistently failed to provide drug screens or proof of attendance at AA, NA, or any other substance abuse treatment. Respondent had only recently provided adequate proof of housing and legal income. Notably, respondent had missed more visitations with AL and KL than she had attended. The trial court also heard testimony that the children's caregivers were willing to adopt and that AB had expressed a desire for permanent placement with her foster family. All of these factors weighed in favor of termination.
Respondent argues that these factors were insufficient to overcome the placement of AL and KL with a relative. "Because a child's placement with relatives weighs against termination . . . the fact that a child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in the child's best interests." In re Olive/Metts, 297 Mich App at 43 (quotation marks and citation omitted). AL and KL had been placed with their paternal aunt, an individual that qualified as a relative for the purposes of this provision, as defined by MCL 712A.13a(1)(j). However, while a trial court must consider this factor, a child's placement with relatives is not dispositive of the best-interests determination, and termination of parental rights is still appropriate if it is in the child's best interests. See In re Olive/Metts, 297 Mich App at 43. The trial court acknowledged that this factor, as well as the bond respondent shared with AL and KL, weighed against termination. However, the trial court explained why termination was still in the best interests of AL and KL. Specifically, the trial court noted the length of time AL and KL had been in care, respondent's minimal progress with her treatment plan, the continued risk of harm to AL and KL because of respondent's instability, respondent's failure to regularly visit AL and KL, and AL and KL's need for permanence and stability along with their caregiver's desire to adopt. Nothing in this record leads us to conclude that the trial court clearly erred in weighing these factors.
Respondent also asserts the trial court erred in relying on AB's desire for adoption in its best-interest determination. At the termination hearing, the trial court heard testimony from the foster care workers that AB had expressed a desire for permanent placement with and adoption by her nonrelative foster family. Admittedly, there was some ambiguity in the manner in which AB expressed this desire. Respondent testified that AB had indicated to her that AB felt pressured by the foster care workers and foster parents to state that she wanted to be adopted. Respondent argues that this ambiguous and conflicting testimony undermines the trial court's reliance on AB's desire when making its best-interests determination. Respondent essentially asks us to reweigh the evidence and resolve the ambiguities in a different way. This we cannot do. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989) ("[I]n applying the principle that findings of fact may not be set aside unless clearly erroneous, regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it."). Thus, there is nothing to indicate that the trial court clearly erred in resolving the factual ambiguities and inconsistencies and determining that termination of respondent's parental rights was in AB's best interests. Moreover, there was evidence that AB was doing well in her foster care placement and many of the same factors discussed as to AL and KL also support a finding that termination was in AB's best interests.
Respondent further asserts the trial court's best-interests determination was flawed because it failed to consider guardianship as an alternative to the termination of respondent's parental rights and adoption. "[T]he appointment of a guardian is only appropriate after the court has made a finding that the child cannot be safely returned to the home, yet initiating termination of parental rights is clearly not in the child's best interests." In re TK, 306 Mich App at 707 (citation omitted). But, a trial court may only appoint a guardian if "it is in the child's best interests to appoint a guardian." Id. (citations omitted). A guardianship may be appropriate when "an ongoing relationship with [the parent]—rather than termination—is in the children's best interests." In re Mason, 486 Mich 142, 169; 782 NW2d 747 (2010).
Here, again, the record belies respondent's assertions. The trial court heard evidence that AB did not want to have a guardian appointed but desired to be adopted. Moreover, at the respondent's counsel's request, the trial court delayed the termination hearing so that AL and KL's foster care worker could explore the possibility of guardianship for them. After resuming the hearing, the trial court heard evidence that adoption rather than guardianship was the more realistic permanency plan given their ages. Furthermore, there was no evidence indicating that respondent would be able to comply with the treatment plan if given more time. And, in its written order terminating respondent's parental rights, the trial court explained why adoption, rather than guardianship, was in the children's best interests. The trial court acted within the statutory parameters and determined that it was in the children's best interests to be adopted rather than placed in a guardianship.
Finally, respondent alleges that the trial court solely relied on the ages of AL and KL in its determination not to appoint a guardian in violation of our Supreme Court's precedent. However, the trial court's written order, which she refers to in support of her argument, belies respondent's assertion. While the trial court considered the age of the children as a factor, it also considered respondent's instability and its negative affect on the children. Considering these factors, the trial court properly decided that under the circumstances of this case, rather than under some general policy preference, termination of respondent's parental rights was in the children's best interests.
Affirmed.
/s/ David H. Sawyer
/s/ Anica Letica
/s/ James Robert Redford