Opinion
No. 342814
11-27-2018
In re M. LEWIS, Minor.
UNPUBLISHED Berrien Circuit Court Family Division
LC No. 2016-000127-NA Before: MURPHY, P.J., and O'CONNELL and BECKERING, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor child, pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g) (failure to provide proper care or custody) and (j) (reasonable likelihood of harm). We affirm.
Respondent-father's parental rights were also terminated, but he is not a party to this appeal. --------
I. BACKGROUND
In September 2016, respondent gave birth to the minor child. Respondent tested positive for marijuana when she entered the hospital. The child was born prematurely, he was hospitalized in the neonatal intensive care unit, and his condition required specialized medical care. The hospital contacted the Department of Health and Human Services (DHHS) because it had concerns about respondent's cognitive deficiencies and her ability to provide routine care for the child. In October 2016, the DHHS filed a petition to take the child into custody. The trial court took jurisdiction over the child, and the DHHS coordinated various services for respondent, including parenting classes, as well as substance abuse and mental health counseling. Respondent did not fully participate in the services offered, and she repeatedly tested positive for marijuana or refused to attend drug screens. After a termination hearing in February 2018, the trial court found that the DHHS offered respondent numerous services tailored to her specific needs. The trial court found statutory grounds for termination, and it concluded that termination of respondent's parental rights was in the child's best interests.
II. STANDARD OF REVIEW
This Court reviews for clear error a trial court's factual determinations regarding whether statutory grounds for termination have been established, whether the DHHS has made reasonable efforts at reunification, and whether termination of parental rights is in the child's best interests. In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011); In re Fried, 266 Mich App 535, 541-543; 702 NW2d 192 (2005). "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).
III. ANALYSIS
A. ADEQUACY OF SERVICES
Respondent argues that the DHHS provided insufficient services by not accommodating respondent's cognitive limitations. We disagree. The DHHS "has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks, 500 Mich 79, 85; 893 NW2d 637 (2017). Accordingly, the DHHS must devise a case service plan that describes how the DHHS and the parent will work to rectify the barriers to reunification. Id. at 85-86. To that end, the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., requires the DHHS to "modify its standard procedures in ways that are reasonably necessary to accommodate a disability under the ADA." Id. at 86.
In the present case, the DHHS provided respondent with specific services as an accommodation for her disability. The initial caseworker knew that respondent was receiving disability benefits for a learning disorder, and the caseworker referred respondent for a psychological evaluation for the purpose of understanding respondent's cognitive limitations. Respondent did not attend the initial appointment or a rescheduled appointment, and the doctor's office's attempt to reschedule another appointment was unsuccessful. After respondent completed a parenting class, a caseworker referred respondent to a supportive visitation program designed to work with respondent one-on-one to provide her with individualized instruction about parenting skills. Respondent was dismissed from that program because she missed the first three sessions. The caseworker referred respondent to counseling and transported respondent to the initial intake appointment, but respondent attended one session only. The caseworker also offered to attend Narcotics Anonymous (NA) meetings with respondent.
Further, the caseworkers acknowledged respondent's cognitive limitations and sought to communicate with respondent in a way that she would understand. For example, one caseworker offered to text respondent the information they discussed so that respondent could consult the information later. Respondent does not argue that her limited cognitive abilities prevented her from understanding that she should not have been using marijuana or from participating in services offered, particularly when the caseworkers attempted to accommodate respondent's needs. For these reasons, the trial court did not clearly err by finding that the DHHS provided respondent with specialized services tailored to her specific needs.
B. STATUTORY GROUNDS
Respondent argues that the trial court clearly erred by finding that statutory grounds existed to terminate her parental rights. We disagree. In this case, the trial court found statutory grounds for termination under MCL 712A.19b(3)(c)(i), (g), and (j), which state as follows:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
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(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 . . . :
(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.
* * *
(g) The 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.
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(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.
In this case, the trial court did not clearly err by finding that statutory grounds for termination were established by clear and convincing evidence. Respondent tested positive for marijuana at the time of the child's birth, and respondent repeatedly tested positive for marijuana during the pendency of this case. Respondent did not participate in substance abuse counseling or attend NA meetings, even though the caseworker offered to attend those meetings with respondent. In addition, respondent chose to exercise less than half the parenting-time visits offered, even though the DHHS provided respondent with bus passes that she apparently used for other purposes. Respondent failed to attend a psychological evaluation, counseling services, and one-on-one parenting services. Accordingly, respondent's failure to participate in these services in any meaningful way supported the trial court's finding that statutory grounds for termination existed under MCL 712A.19b(3)(c)(i), (g), and (j).
Respondent argues that the trial court could not properly conclude that the conditions that led to adjudication could not be rectified within a reasonable time unless the DHHS first offered respondent services tailored to her intellectual disability. For the reasons previously explained, the DHHS made reasonable efforts at reunification because it provided respondent with services tailored to address her limited cognitive functioning. Therefore, the trial court did not clearly err by finding statutory grounds for termination.
C. BEST INTERESTS
Lastly, respondent challenges the trial court's best-interest determination. Once statutory grounds for termination have been established, the trial court must order the termination of parental rights if termination of parental rights is in the child's best interests. MCL 712A.19b(5).
The trial court should weigh all the evidence available to determine the [child's] best interests. To determine whether termination of parental rights is in a child's best interests, the court should consider a wide variety of factors that may include 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. 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. [In re White, 303 Mich App 701, 713-714; 846 NW2d 61 (2014) (quotation marks and citations omitted).]
Respondent argues that the trial court improperly relied only on generalized concerns in making its best-interest determination. Respondent relies on In re Timon, 501 Mich 867 (2017), in which our Supreme Court vacated this Court's affirmance of the trial court's best-interest determination because the trial court failed to make particularized findings about the permanency and stability offered by placing the child with a guardian. In contrast to In re Timon, this case does not involve a trial court's generalized concerns about the placement of a child. Further, contrary to respondent's argument, the trial court did make individualized findings of fact regarding the minor child's best interest. The trial court noted the length of time the child spent in foster care, respondent's inability to care for the child, respondent's failure to participate in services, respondent's continued substance abuse, the child's need for permanency and stability, and the minimal bond between respondent and the child. These findings address respondent's lack of participation in this case and the child's needs. Therefore, the trial court did not clearly err by finding that termination of respondent's parental rights was in the child's best interests.
We affirm.
/s/ William B. Murphy
/s/ Peter D. O'Connell
/s/ Jane M. Beckering