Opinion
No. 342380
08-16-2018
In re RAYMOND/DUBOIS, Minors.
UNPUBLISHED Lapeer Circuit Court Family Division
LC No. 17-012431-NA Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating her parental rights to the minor children pursuant to MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (c)(ii) (other conditions supporting jurisdiction exist and have not been rectified), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood of harm if returned to the parent's home). Because there are no errors warranting reversal, we affirm.
The two fathers of the children voluntarily released their parental rights and are not parties to this appeal. --------
I. REUNIFICATION EFFORTS
A. STANDARD OF REVIEW
Respondent first argues that petitioner failed to make reasonable efforts at reunification. Specifically, respondent maintains that she was entitled to additional, tailored, services due to her mental illness. An issue is preserved if it was raised below and decided by the trial court. Polkton Charter Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005). Respondent argued that she was not provided sufficient services, and the trial court found that petitioner had made reasonable efforts. However, respondent did not maintain that she required special services due to her mental health or other disabilities. This claim of error is not preserved. We thus review it for plain error affecting substantial rights. King v Oakland Co Prosecutor, 303 Mich App 222, 239; 842 NW2d 403 (2013). "To avoid forfeiture under the plain-error rule, three requirements must be met: (1) an error must have occurred; (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." Rivette v Rose-Molina, 278 Mich App 327, 328-329; 750 NW2d 603 (2008) (quotation marks and citations omitted).
B. ANALYSIS
Generally, before a court may contemplate termination of a parent's rights, the Department of Health and Human Services (DHHS) must make reasonable efforts to reunite the family. MCL 712A.19a(2). "The adequacy of the petitioner's efforts to provide services may bear on whether there is sufficient evidence to terminate a parent's rights." In re Rood, 483 Mich 73, 89; 763 NW2d 587 (2009). However, a respondent also has a responsibility to participate in services offered by the petitioner. In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012).
In In re Hicks/Brown, 500 Mich 79, 82-83; 893 NW2d 637 (2017), the Michigan Supreme Court considered whether DHHS made reasonable efforts to reunify an intellectually disabled parent with her children. The Court considered obligations arising under both the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the Michigan Probate Code, MCL 712A.18f(3)(d). In re Hicks/Brown, 500 Mich at 86-87. Under the Probate Code, "the Department has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." Id. at 85. The ADA provides 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.' " Id. at 86, quoting 42 USC 12132. The DHHS neglects its duty under the ADA to reasonably accommodate a disability when it fails to implement reasonable modifications to services or programs offered to a disabled parent. Id. Similarly, "efforts at reunification cannot be reasonable under the Probate Code if the [DHHS] has failed to modify its standard procedures in ways that are reasonably necessary to accommodate a disability under the ADA." Id.
Reviewing the record, we find no evidence that respondent required or was entitled to accommodations in her service plan. Harold Sommerschield, Ph.D. conducted a psychological evaluation of respondent. While he opined that she exhibited symptoms of anxiety and depression (partly as a result of her oldest child's cancer diagnosis), Dr. Sommerschield did not find any evidence of more serious mental health disorders. His test results showed that respondent was of average or above average intelligence and that, from an intellectual perspective, she had a good prognosis for parenting her children. With respect to her mental health, in addition to continuing respondent's psychological counseling, he recommended that she undergo a psychiatric evaluation to review her current psychiatric anxiety medication and to follow the psychiatrist's recommendation. Respondent has not shown that petitioner's decision to trust a qualified professional with respect to this diagnosis was unreasonable. Therefore, respondent provides no legal support for any claim that her mood disorders fall within the definition of a disability under the ADA.
Moreover, even if we were to find that respondent's mental health issues warranted special treatment by the DHHS, the record shows that the DHHS tailored the parent-agency plan to meet her needs. Respondent was offered numerous services, including parenting classes and mental health services. Respondent decided that she wanted to work with a mental health care provider of her own choosing and was permitted to do so. Respondent then chose not to regularly participate in those services and stopped attending counseling. She also failed to schedule the recommended psychiatric evaluation, despite having the demonstrated capacity to do so. Her argument on appeal that she needed more assistance in this regard is not supported by the record. Respondent did not request accommodations or additional services in obtaining a psychiatric evaluation below.
Furthermore, the caseworker later reported that, although respondent had registered with another therapist and made an appointment for a psychiatric evaluation, when she went to the psychiatric appointment, the doctor could not complete it due to her continued talking during the evaluation. And although the psychiatrist prescribed her medication, the caseworker testified that respondent refused to take it. Respondent's therapist also explained that respondent had made no progress because respondent just talked constantly and the therapist could not get a word in edgewise. Although petitioner "has a responsibility to 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 at 248. Given respondent's failure to take advantage of the services offered, which included mental health services, we conclude that the case service plan reasonably accommodated respondent's special limitations or disabilities to the extent required by In re Hicks/Brown, 500 Mich at 85-86.
In addition, respondent has not shown that additional services would have prompted her to participate. For instance, respondent discusses as an example of reasonable accommodations a modification of deadlines, i.e., giving the parent more time to meet deadlines. However, respondent's inability to meet any deadlines here was because she chose not to meet them, not because she lacked the ability to do so. She has not shown that she is entitled to relief on this ground.
With respect to respondent's concurrent claim that the trial court should have ordered DHHS to provide her with a different caseworker, she has presented nothing to support a claim that the trial court incorrectly decided that it was up to petitioner to make this decision. While MCL 712A.19a(2) provides for reasonable reunification efforts, it does not require that DHHS use a caseworker of the respondent's choosing. Moreover, the trial court did explain to respondent that she had an administrative recourse if she was unhappy with the assigned caseworker, but respondent provides no indication that she availed herself of this alternate form of resolution.
Respondent also discusses various provisions in the Children's Foster Care Manual (FOM), such as one recommending that the parents be involved in writing the parent-agency plan. Respondent states that she was not able to participate in developing the various parent-agency plans here. However, the caseworker testified during one hearing that she had repeatedly asked respondent and her husband to sit down and review it with her but, while the couple stated that they would, they never did. In another hearing, respondent acknowledged that the caseworker had asked respondent what else she wanted in the parent agency agreement. She has not shown that, even if she were entitled to participation in developing the agreement according to the FOM, that she was not given such an opportunity here.
Respondent next argues that it is "unlikely" that a genogram was prepared in the instant case as required under the FOM. Respondent did not raise this issue below. She has presented nothing to suggest that her assumption is correct. Moreover, even if one was not prepared, respondent has not shown, nor even argued, how the result would likely have been different here. Respondent's lack of progress in this case was due to her refusal to participate.
II. BEST INTERESTS
A. STANDARD OF REVIEW
Respondent argues that the trial court erred by finding that termination of her parental rights was in the children's best interests. We review for clear error the trial court's finding that termination of respondent's parental rights was in the children's best interests. In re Payne/Pumphrey/Fortson, 311 Mich App 49, 63; 874 NW2d 205 (2015).
B. ANALYSIS
"If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). Whether termination of parental rights is in a child's best interests is determined by a preponderance of the evidence. In re White minors, 303 Mich App 701, 713; 846 NW2d 61 (2014). Factors to be considered 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." In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). A court may also consider whether it is likely "that the child could be returned to her parents' home within the foreseeable future, if at all." In re Frey, 297 Mich App at 248-249.
Respondent argues that the trial court failed to properly consider her bond with the children during the best-interest findings, instead relying only on its finding that the children were thriving in placement. However, in addition to finding that the children were thriving in placement, the trial court's best-interest decision dealt with each child individually. Contrary to respondent's contention, the court discussed respondent's interactions with each child and their feelings toward her. Although the court's findings did not specifically use the term "bond," the court's statements clearly show that the court reviewed respondent's relationships with the children and how a continued relationship with her would be harmful to them. Respondent has, thus, not demonstrated clear error with respect to this portion of the court's best-interest decision.
Finally, respondent argues that the trial court plainly erred in its best-interest determination because it failed to explicitly consider the fact that the children were placed with relatives in making its best-interest decision. See In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). However, the trial court noted that the children were placed with their grandparents, who were committed to helping the children, and the court recognized that it was required to decide whether termination was appropriate given this placement. This claim of error is without merit.
Affirmed.
/s/ Brock A. Swartzle
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly