Opinion
No. 338802
12-12-2017
In re A. J. NEMECKAY, Minor.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 17-000226-NA Before: TALBOT, C.J., and BORRELLO and RIORDAN, JJ. PER CURIAM.
Respondent mother appeals as of right an order terminating her parental rights to her minor son, AJN, pursuant to MCL 712A.19b(3)(b)(i) (parent's act caused injury to child or sibling), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood of harm to the child if returned to the home of the parent). We affirm.
AJN's father was also named as a respondent in the termination proceedings, but his rights were not terminated and he is not involved in this appeal.
Petitioner, Department of Health and Human Services (DHHS), filed a petition to terminate respondent's parental rights on February 22, 2017. The trial court took jurisdiction over then 1½-year-old AJN based on testimony from Child Protective Services (CPS) worker Chantell Rogers indicating that respondent had intentionally harmed AJN on two recent occasions and that AJN was suffering from a severe rash, was diagnosed with scabies, and was otherwise improperly cared for. Rogers also indicated that respondent suffered from ongoing mental health issues and had been involved in domestic violence with the child's father in front of AJN.
Testimony presented at the later adjudication hearing reiterated and expanded upon these concerning facts. In December 2016, Rogers investigated respondent in connection with allegations that AJN was physically neglected and not properly supervised. The allegations were not fully substantiated, though Rogers learned that respondent had dropped AJN on his head, purportedly by accident. Rogers referred respondent to a parenting coach and closed the case. Nonetheless, in February 2017, CPS received a second complaint alleging that AJN had again been dropped, resulting in his hospitalization. His medical records reflected that respondent admitted to purposely dropping AJN on his head at the top of a flight of stairs because he was being "fussy." Moreover, in the course of the February 2017 investigation, respondent also admitted that she intentionally threw AJN across the room in December 2016 in a fit of frustration because he resembled his father. Respondent further acknowledged to Rogers that she was not properly caring for AJN because she felt lazy and depressed. Respondent's relationship with AJN's father was volatile: she was on probation as a result of domestic violence against the father's girlfriend, and she admitted to sending a text message to AJN's father threatening to kill AJN if he, the father, did not respond to her phone calls, though she later described the message as a joke. Respondent suffered from schizo-affective disorder and continued to experience difficulty with impulse control, despite medication. At the conclusion of the hearing, the trial court found that clear and convincing evidence supported termination of respondent's parental rights under MCL 712A.19b(3)(b)(i), (g), and (j). A best interests hearing followed, at which the trial court determined that termination of respondent's parental rights was in AJN's best interests. This appeal followed.
When a respondent appeals an order terminating his or her parental rights, "[w]e review for clear error both the court's decision that a ground for termination has been proved by clear and convincing evidence and, where appropriate, the court's decision regarding the child's best interest." A decision is clearly erroneous if "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made."
In re JK, 468 Mich 202, 209; 661 NW2d 216 (2003).
Id. at 209-210.
On appeal, respondent contends that the record lacks clear and convincing evidence to support the court's termination order. However, the basis for her argument is not the absence of such evidence. Rather, respondent asserts that the trial court's order was clearly erroneous because DHHS failed to make reasonable efforts towards reunification, as required by the Michigan Probate Code or accommodate her mental disability as required by the Americans with Disabilities Act (ADA). According to respondent, the only reunification service provided by DHHS—the parenting coach to which respondent was referred in December 2016—did not accommodate her disability. She contends that DHHS's failure in this regard rendered the evidence supporting termination of her parental rights "virtually nonexistent." We disagree.
See MCL 712A.18f(3)(b) and (c) (requiring that case service plan include efforts to be made to enable the child to return to his or her home); MCL 712A.19a(2) (identifying exceptions to requirement that reasonable reunification efforts be made).
See 42 USC 12132 ("Subject to the provisions of this subchapter, 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.").
In support of her claim of error, respondent relies upon the Michigan Supreme Court's recent opinion in In re Hicks/Brown. In that case, DHHS sought termination of the respondent mother's parental rights after providing reunification services for over a year. The respondent was intellectually disabled and her attorney repeatedly inquired about DHHS's efforts to ensure that the respondent received services that would accommodate her disability. The Hicks/Brown Court found 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/Brown, ___ Mich___; 893 NW2d 637 (2017) (Docket No. 153786).
Id. at ___; slip op at 2-3.
Id.
Id. at ___; slip op at 5.
The circumstances at issue in In re Hicks/Brown are readily distinguishable, such that respondent's reliance thereon is unpersuasive. As the Hicks/Brown Court recognized, reasonable efforts toward reunification are not required in all cases. For instance, reunification efforts are not required when certain aggravating circumstances exist and "when termination of parental rights is the agency's goal." Moreover, MCL 722.638(1)(a)(iii) mandates that DHHS seek termination of parental rights when it determines that a parent abused the child and the abuse included "[b]attering, torture, or other severe physical abuse." In this case, DHHS discovered that respondent inflicted severe physical abuse upon AJN by throwing him across the room in December 2016 and intentionally dropping him on his head in February 2017. Accordingly, unlike in In re Hicks/Brown, DHHS sought termination of respondent's parental rights from the moment it filed the original petition in this action, and the court subsequently found clear and convincing evidence that grounds for termination existed under MCL 712A.19b(3)(b)(i), (g), and (j), and that termination would be in AJN's best interests. As such, DHHS was not required to provide reunification services in this case. While it is undoubtedly true that DHHS must comply with the ADA when providing statutorily mandated services, respondent is not entitled to relief on the basis of DHHS's failure to make reasonable accommodations for services it was not obligated to provide.
Id. at ___; slip op at 4 n 4.
In re Moss, 301 Mich App 76, 90-91; 836 NW2d 182 (2013).
Id.
In re Hicks/Brown, ___ Mich ___, ___; slip op at 5. --------
Affirmed.
/s/ Michael J. Talbot
/s/ Stephen L. Borrello
/s/ Michael J. Riordan