Opinion
No. 342468
09-18-2018
In re M. M. GAMBLE, Minor.
UNPUBLISHED Muskegon Circuit Court Family Division
LC No. 09-038228-NA Before: MURRAY, C.J., and CAMERON and LETICA, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court order terminating his parental rights to the minor child under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (c)(ii) (other conditions cause the child to come within the court's jurisdiction), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood that child will be harmed if returned to parent). On appeal, respondent argues that petitioner, the Department of Health and Human Services (DHHS), failed to accommodate his disabilities under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq.; that the trial court clearly erred in finding statutory grounds for termination of his parental rights; and that the trial court clearly erred in finding that termination of his parental rights was in the child's best interests. We affirm.
I. BACKGROUND
The child was removed from her mother's care and custody within days of the child's birth. The initial petition sought to terminate the parental rights of the child's mother, primarily citing the fact that her parental rights to an earlier child had been terminated. The initial petition also alleged that respondent had a criminal history and that respondent was incarcerated for punching the child's mother in the stomach while she was pregnant with the child. The trial court issued an order taking the child into protective custody, and the DHHS subsequently filed an amended petition that contained additional allegations regarding respondent. The amended petition alleged that (1) respondent had a history of domestic violence, (2) respondent had a criminal record, (3) respondent admitted to setting himself on fire because voices told him to do so, (4) respondent refused to sign a release of information form to allow the DHHS to obtain his mental health records, (5) respondent lacked basic parenting skills, and (6) respondent was homeless and refused to provide his address to the DHHS. A year later, the DHHS filed a supplemental petition seeking termination of respondent's parental rights. After conducting an evidentiary hearing on the supplemental petition, the trial court made factual findings and concluded that statutory grounds existed to terminate respondent's parental rights to the minor child under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). In addition, the trial court found that termination of respondent's parental rights was in the child's best interests.
The child's mother voluntarily relinquished her parental rights, and she does not appeal from the trial court's order terminating her parental rights to the child.
II. FAILURE TO ACCOMMODATE A DISABILITY
Respondent first argues that the trial court erred in terminating his parental rights without complying with the requirements of the ADA. Respondent maintains that his disabilities—illiteracy and limited use of one of his arms—were not properly accommodated in the services he received throughout the proceedings. We disagree.
A respondent in a child protective proceeding claiming that the petitioner failed to accommodate his disabilities under the ADA must raise such a claim in a timely manner so that reasonable accommodations can be made. In re Terry, 240 Mich App 14, 26; 610 NW2d 563 (2000). The respondent should claim a violation of his rights under the ADA "either when a service plan is adopted or soon afterward." Id. Respondent did not raise any concerns about the alleged failure to accommodate his inability to read and write until the termination hearing, and did not raise an ADA argument with respect to his physical disability at any point. Accordingly, this issue was not timely raised. See id. at 27 (stating that challenge regarding compliance with the ADA, raised for the first time during closing arguments at a termination hearing, was untimely).
In In re Hicks, 500 Mich 79, 88; 893 NW2d 637 (2017), the Michigan Supreme Court categorized the language from Terry as dictum and noted that panels of this Court have "treated this language as the rule since the Terry decision." The Supreme Court expressed skepticism regarding such a "categorical rule" but ultimately did not decide the timeliness issue because neither the petitioner nor the minor children raised a timeliness issue in the trial court. Id. at 88-89. See also id. at 89 n 9 ("Certainly, a service plan deficient on its face should produce an immediate objection. But it will not always be apparent at the time a service plan is adopted, or even soon afterward, that the service plan is insufficient, either in design or execution, to reasonably accommodate a parent's disability."). Thus, despite the Court's questioning of the categorical rule, In re Hicks did nothing to displace the notion that a parent must timely object to the adequacy of services.
At a review hearing, the court acknowledged that respondent had a "problem with his arm" and asked the caseworker whether she had considered referring respondent to Generation Care, a program that focused on teaching parenting skills to disabled individuals. At the next hearing, counsel for the DHHS advised the court that the recommended program did not accept respondent's insurance. Respondent did not request similar alternative services or other accommodations and there was no further discussion regarding that subject.
Because this issue is unpreserved, we review for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). "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." In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011) (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 at 9.
Our Supreme Court recently explained the petitioner's duty to reasonably accommodate a respondent's claimed disability in a proceeding to terminate the respondent's parental rights:
Under Michigan's Probate Code, [MCL 710.21 et seq.,] the Department [of Health and Human Services] has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights. 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.
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." 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.
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 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. [In re Hicks, 500 Mich 79, 85-86; 893 NW2d 637 (2017) (citations and footnote omitted).]
The protections of the ADA apply to a "qualified individual with a disability," which means
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. [42 USC 12131(2).]The ADA defines a "disability" as "a physical or mental impairment that substantially limits one or more major life activities of such individual," "a record of such an impairment," or "being regarded as having such an impairment." 42 USC 12102(1). For purposes of the ADA, "major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42 USC 12102(2)(A).
Respondent simply assumes, without supporting argument or citation to relevant authority, that his claimed disabilities are the types of impairments that would meet the definition of a disability for purposes of the ADA. Where a party only gives cursory consideration of an issue, with no citation of supporting authority or the record, this Court need not consider the issue. See Great Lakes Div of Nat'l Steel Corp v Ecorse, 227 Mich App 379, 422; 576 NW2d 667 (1998). However, assuming without deciding that respondent's conditions would satisfy the ADA's definition of a disability, we nonetheless conclude that the DHHS made reasonable efforts to accommodate his conditions and reasonable efforts toward reunification.
The record indicates that respondent was illiterate, although he informed a caseworker that he could read and write at a sixth-grade level. As an accommodation for his limited ability to read and write, the DHHS ensured that all written materials were read to respondent, and the caseworkers and service providers testified that they helped respondent fill out paperwork. Although respondent was repeatedly referred to a literacy program, he refused to participate in that program, indicating that learning to read and write was not a priority for him. Nonetheless, respondent testified that his first parent-mentor assisted him with developing reading skills, such as helping him sound out various words. In addition, during an earlier review hearing, respondent's counsel conceded that respondent chose not to participate in the literacy program, explaining that respondent "can read a little bit," that "he survived this long without reading and writing," and that he preferred to prioritize attendance at mental health counseling over participation in a literacy program. On the basis of these facts, we conclude that the DHHS made reasonable efforts to accommodate respondent's illiteracy and that the trial court did not clearly err in finding that respondent declined to participate in the services offered by the DHHS.
With regard to respondent's physical limitations associated with his arm, a caseworker initially testified that respondent had some difficulty handling the child when she was a small infant. This included holding the child while making her a bottle, burping the child, diapering the child, and changing her clothes. However, the DHHS provided respondent with supervised parenting time with caseworkers, parent-mentors, and infant mental health therapists to help him learn how to physically care for the child. Yet, the testimony and other evidence presented in this case indicates that respondent often rejected the professional advice offered to him regarding parenting skills and techniques. When he followed such advice, he did so reluctantly. Given the record in this case, we conclude that the DHHS made reasonable efforts to accommodate respondent's physical limitations. The trial court did not clearly err in concluding that the DHHS made reasonable efforts to reunify respondent with his child, and it did not clearly err in finding that respondent declined to participate in, and therefore failed to benefit from, the services offered.
Furthermore, the trial court terminated respondent's parental rights because of his chronic homelessness, unresolved mental health issues, history of domestic violence, and limited parenting skills. Accordingly, respondent cannot demonstrate plain error affecting his substantial rights.
Respondent also argues that the DHHS failed to help him regain Social Security and Medicaid coverage to provide income, housing, and insurance for counseling. However, respondent fails to explain how these alleged failures relate to his illiteracy or his arm mobility issues and, therefore, fails to explain how these alleged deficiencies constitute failures to accommodate a disability under the ADA. In any event, we conclude that respondent's argument is not supported by the record. The testimony offered throughout the proceedings indicates that respondent's Social Security benefits were reinstated on February 6, 2017; respondent's Medicaid insurance coverage was reinstated sometime before July 28, 2017; and several professionals offered respondent assistance in searching for suitable housing.
III. STATUTORY GROUNDS FOR TERMINATION OF PARENTAL RIGHTS
Respondent next argues that the trial court clearly erred in finding that statutory grounds existed to terminate his parental rights. We disagree.
"In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich App at 139. This Court reviews for clear error a trial court's factual determination that statutory grounds exist for termination. Id.; MCR 3.977(K). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004). "Only one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights, even if the court erroneously found sufficient evidence under other statutory grounds." In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).
The trial court properly terminated respondent's parental rights to the child based upon several statutory grounds, including MCL 712A.19b(3)(g). At all relevant times, MCL 712A.19b(3)(g) provided for termination of a respondent's parental rights if the court found by clear and convincing evidence that "[t]he parent, without regard to intent, 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." MCL 712A.19b(3)(g), as amended by 2012 PA 386. The trial court terminated respondent's parental rights under MCL 712A.19b(3)(g) after finding that respondent had not addressed his mental health needs, had demonstrated inadequate parenting skills, and continued to lack appropriate, stable housing—concerns that had been prevalent throughout the entirety of the proceedings. The trial court did not clearly err in this regard.
MCL 712A.19b(3)(g) has since been substantively amended, effective June 12, 2018. See 2018 PA 58. --------
Respondent was homeless for most of his adult life and lived in five different places during the pendency of this case, including a homeless shelter. Respondent acknowledged that most of those living arrangements were not appropriate for the child and refused to allow the DHHS to inspect several of these residences. The record contains evidence that (1) respondent's second parent-mentor helped him develop a budget to provide for the cost of housing, (2) his first parent-mentor helped respondent apply for housing, and (3) the DHHS caseworker and other service providers offered to assist respondent in seeking housing. Although respondent promised to look into the available subsidized housing options identified by the caseworker and advised that he was attempting to secure Section 8 housing, at the time of the termination hearing respondent was living in a one-bedroom location with a friend identified only as "T," and had rejected offers of assistance to locate suitable and stable housing.
With regard to mental health, the child's mother testified that respondent claimed to hear voices and suffer blackouts. Respondent admitted to caseworkers that, in approximately 2010, he poured gasoline on himself and lit himself on fire because he was hearing voices that told him to do so. However, he claimed that he had been treated for that issue and did not need any further mental health treatment, though he failed to sign medical releases to allow the DHHS to obtain copies of his mental health treatment records. Despite a psychological and psychiatric evaluation that recommended therapy for paranoia, depression, anxiety, and interpersonal skills, respondent never participated in the recommended individual or group counseling and he refused medication. And while respondent eventually began working with a counselor through infant mental health services, the focus of the service was on improving the parent-child relationship and responding to the child's developmental needs. Respondent refused to tell the counselor where he lived, thereby precluding the counselor's ability to provide in-home services. Respondent also declined to address his own mental health needs with the counselor, again maintaining that he did not require any mental health treatment.
There was some evidence that respondent was able to demonstrate basic parenting skills, but it was generally agreed among the individuals who were present during his parenting time that his improvement had been minimal. For instance, although his ability to change the child's diaper had improved, he still required prompting on occasion. Respondent also struggled with responsive caregiving, meaning that he was unable to read the child's cues or accurately assess her needs. During parenting time, respondent often fell asleep with the child on his lap, despite having received instructions regarding safe sleeping habits. Furthermore, several witnesses testified that respondent reacted defensively and was resistant to suggestions for improvement.
Given the evidence of respondent's inadequate housing, failure to address his mental health issues, and limited improvement in the area of parenting skills, the trial court did not clearly err by terminating respondent's parental rights under MCL 712A.19b(3)(g) based upon his failure to provide proper care or custody for the child and the improbability that he would be able to do so within a reasonable time. Because we conclude that the trial court did not clearly err in finding one statutory ground for termination, we decline to address the additional statutory grounds on which the trial court relied. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
IV. BEST INTERESTS OF THE CHILD
Finally, respondent argues that the trial court erroneously found that termination of his parental rights was in the child's best interests. We disagree.
Once a statutory ground for termination of parental rights has been established, the trial court must order the termination of parental rights if the trial court finds by a preponderance of the evidence that termination of parental rights is in the child's best interests. MCL 712A.19b(5); In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). This Court reviews for clear error the trial court's determination of best interests. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App at 296-297.
The interests of the child, not the parent, are the focus of the best-interest stage of child protective proceedings. In re Moss, 301 Mich App at 87-88. "The trial court should weigh all the evidence available to determine the [child]'s best interests," considering factors such as "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 White, 303 Mich App 701, 713; 846 NW2d 61 (2014) (quotation marks and 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 [child]'s well-being while in care, and the possibility of adoption." Id. at 714 (quotation marks and citations omitted).
We cannot conclude that the trial court clearly erred in finding that termination of respondent's parental rights was in the best interests of the child. Although there was some evidence of a bond between respondent and the child, there was also evidence that the child had a strong bond with the foster parents and her half sister, who was previously adopted by the foster parents. As already explained, the record demonstrates that respondent lacked appropriate parenting skills and declined to follow professional recommendations designed to help him develop such skills, nor was he able to obtain appropriate housing for the child. There was also evidence that respondent had a history of domestic violence and that he failed to comply with his case service plan, with the exception of attending most parenting-time visits with the child. Finally, there was evidence that the child was thriving in foster care and that the foster parents were willing to adopt her. On this record, we cannot conclude that the trial court committed clear error in finding that termination of respondent's parental rights was in the best interests of the child. See id. at 713-714; In re Olive/Metts Minors, 297 Mich App at 40.
Affirmed.
/s/ Christopher M. Murray
/s/ Thomas C. Cameron
/s/ Anica Letica