Opinion
No. 337401 No. 337501
10-10-2017
In re SCHEEL/CABIL, Minors.
UNPUBLISHED Macomb Circuit Court Family Division
LC No. 2015-000039-NA 2015-000040-NA 2015-000041-NA 2015-000042-NA Before: SAAD, P.J., and CAVANAGH and CAMERON, JJ. PER CURIAM.
In these consolidated appeals, respondent-mother, T. Scheel, and respondent-father, J. Cabil, appeal as of right the trial court's order terminating their parental rights to their four special needs children, JS, KC, PC, and EC. The trial court terminated the parental rights of both respondents to all four children pursuant to MCL 712A.19b(3)(c)(i), (g), (j). Because we conclude that there were no errors warranting relief in either appeal, we affirm.
I. FACTUAL BACKGROUND
This family's history with Child Protective Services ("CPS") dates back to 2013, when CPS began investigating allegations of physical, environmental, and medical neglect. Between 2013 and 2014, two complaints were substantiated when the children were found filthy and living in an unsanitary home. Services were offered to the family and the children were allowed to remain in respondents' care. However, these preventative services were insufficient to ward off further CPS involvement, and in early 2015, CPS again received a neglect referral when EC was treated on February 8, 2015, for fibril seizures. Hospital personnel noted that EC was filthy, his feet were completely blackened with dirt, and there was a red mark on the right side of his back. During an unannounced home visit on February 9, 2015, CPS discovered that the children were living in squalor.
On February 24, 2015, the Department of Health and Human Services ("DHHS") filed a petition requesting that the trial court take jurisdiction of the children. Following no contest pleas on March 19, 2015, the trial court found statutory grounds to assume jurisdiction over the children pursuant to MCL 712A.2(b)(1) and (2). At the dispositional hearing that immediately followed the adjudication, the trial court adopted the parent-agency agreement. Accordingly, respondents were ordered to participate in, among other things, parenting classes, parenting time, and individual counseling. They were also ordered to obtain and maintain suitable housing and a legal source of income.
Although the children initially were permitted to remain in the home while respondents participated in services, they were removed in August 2015, after petitioner filed an emergency motion alleging that respondents were uncooperative with court ordered services and had refused to participate in counseling. In the ensuing 12 months after the August 2015 removal of the children, respondents' compliance with the treatment plan was, at best, inconsistent. In August 2016, petitioner sought to terminate respondents' parental rights. After hearings between October 2016 and January 2017, the trial court entered an order on March 2, 2017, terminating respondents' parental rights to their four children.
II. REASONABLE EFFORTS
On appeal, respondents first assert that the trial court erred when it found that reasonable efforts were made to reunify the family. Both respondents argue that petitioner failed to make reasonable efforts to reunify the family because it failed to take into consideration respondent-father's dyslexia diagnosis. This Court reviews the trial court's findings of fact, including a finding that the petitioner made reasonable efforts toward reunification, for clear error. In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005). After reviewing the lower court record, we conclude that respondents have failed to demonstrate that the trial court clearly erred in finding that petitioner made reasonable efforts to reunify the family.
Respondent-mother does not assert that she had a disability that petitioner failed to accommodate. Instead, she contends that because she and respondent-father were planning together, petitioner's failure to accommodate respondent-father's disability impaired her ability to comply with the treatment plan. She then argues that petitioner's failure in this regard precluded the trial court's finding that statutory grounds existed to support termination of respondents' parental rights.
Before a trial court may contemplate termination of a parent's parental rights, the petitioner 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) (citation omitted). 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).
Our Supreme Court, in In re Hicks/Brown, ___ Mich ___; 893 NW2d 637 (2017) (Docket No. 153786), recently considered whether the petitioner made reasonable efforts to reunify an intellectually disabled parent with her children. The Court considered obligations that arise under both the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and under the Michigan Probate Code, MCL 712A.18f(3)(d). Under the 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, ___ Mich at ___; slip op at 4. The Court also noted that 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." Id. (citation omitted.) The Court held that the petitioner 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. at ___; slip op at 5. The Court further stated that "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. The Court noted, however, that a petitioner cannot accommodate a disability of which it is unaware. Id. Keeping in mind the foregoing principles, we conclude that the record does not support respondents' arguments that petitioner failed to accommodate respondent-father's dyslexia.
None of the parties have addressed whether dyslexia is the type of disability that requires accommodation under the ADA. It is unnecessary to reach this issue because, as will be discussed, petitioner reasonably accommodated respondent-father's dyslexia. We would note, however, that while there was evidence that respondent-father had a learning disability, there was no evidence that he was intellectually or cognitively impaired. He graduated from high school and based on his own testimony, he was enrolled at a community college. During a psychological examination, the psychologist did not note any cognitive delays. --------
The evidence overwhelmingly established that respondent-father was provided additional considerations in an effort to assist him in overcoming the barriers to reunification. During the entire 18 months the children were in care before termination, respondents had the continuity of the same caseworker who was familiar with respondent-father's limitations. Foster care worker Stephanie Suarez testified that when the treatment plan was initiated, she not only provided respondents with a copy of the treatment plan, she also reviewed it with them face-to-face so that they understood the expectations. She specifically reviewed the services they needed to complete. Suarez also created a memorandum that summarized pertinent information. Suarez provided each respondent with his or her own referral letters, and she reviewed the letters verbally with respondents. Suarez reviewed the treatment plan with respondents on several occasions, and they repeatedly indicated that they understood the requirements. Further, Suarez employed multiple methods of communication with respondents, contacting them by phone, text and mail to schedule appointments. Suarez even provided respondents with applications for discount cellular phones, which respondent-mother filled out. As a result, both respondents were provided cellular phones. At one point, when respondents failed to retrieve bus tickets from the post office, Suarez hand-delivered the tickets to them. On three separate occasions, Suarez printed out the list of counselors in respondents' area that were accepting new patients so they could easily choose from a distilled list.
Before the current petition, respondents were offered intensive in-home assistance through Families First and Families Together Building Solutions. After the children were removed, respondents were afforded even more intensive assistance through the Hands Across the Water Supported Visitation program. This agency provided in-home, hands-on parenting supervision and assistance. The worker at Hands Across the Water also secured appropriate clothing for respondents to wear to job interviews. Although typically a 12 week long program, respondents were granted an additional four weeks of assistance.
Respondents also claim that they were not given assistance in parenting special needs children. This assertion is not supported by the record. A therapist from Infant Mental Health spoke to respondents in person about working with them to specifically address EC's emotional and medical needs. A meeting was scheduled, and in an effort to accommodate respondents, a location was selected that was more convenient for them. Despite these efforts, respondents failed to attend the appointment. When asked why, respondent-mother said they forgot; respondent-father "corrected" her and claimed they did not have gas.
Respondents next take issue with the level of assistance they received to secure suitable housing. Suarez testified that she provided respondents, on numerous occasions, State Emergency Relief applications, County Housing Network information, as well as the "fullest of resources within Macomb County." On at least one occasion, respondent-father refused the information. Respondents assert that petitioner failed to help them complete the applications. However, respondent-mother stated that she completed an application and was approved for State Emergency Relief funds. She further stated that, although a house was initially available to them, the money they were required to contribute to rent was stolen and, as a result, the house was no longer a valid housing option. Respondent-father testified that they were actually approved for Section 8 housing, but declined it because it required relocation.
Suarez reiterated that she never gave anything to respondent-father to read that she did not first discuss with him verbally. Respondent-father never expressed confusion about information relayed to him. Respondent-father never informed Suarez that he needed any form of accommodation. We note that although respondents were not married, they had been together for 10 years and they intended to plan together. There is no indication that respondent-mother possessed any learning or cognitive impairments that precluded her from reading materials or completing paper work. Indeed, the evidence suggested that she typically performed these tasks for the family. It is noteworthy that, without petitioner's assistance, respondents acquired their own state identification cards and they secured Social Security benefits for EC. Respondent-father also admitted that he made "a bunch of" calls off the community resource list they were given. Also, respondent-father testified that he was a high school graduate and, at the time of the termination hearing, was enrolled in a community college program scheduled to begin in February 2017.
Based on the foregoing, there is no support for respondents' contention that petitioner failed to accommodate respondent-father's dyslexia. Clearly, petitioner made more than reasonable efforts to assist respondents in removing the barriers to reunification. Respondents' failure to participate in and benefit from the treatment plan was not a result of insufficient efforts exerted by petitioner, but rather was due to respondents' lack of motivation and failure to take advantage of opportunities offered to them. Accordingly, the trial court did not err when it found that petitioner made reasonable efforts toward family reunification.
III. STATUTORY GROUNDS
Respondents also argue that statutory grounds for termination were not established by clear and convincing evidence. We disagree. Respondents' parental rights were terminated pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). These statutory provisions permit termination of parental rights when the following conditions are satisfied:
(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 either of the following:The trial court did not err when it terminated respondents' parental rights to their children under these grounds. Because the facts that support the statutory grounds necessarily overlap, they will be discussed concurrently to avoid repetition.
(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.
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(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.
The children were removed from respondents' care and made temporary court wards because they were found living in squalor and respondents were neglecting their most basic needs. Both respondents were provided a multitude of services to rectify the conditions that caused the children to come into care. At the conclusion of the termination hearing, the children had been in care for more than 18 months. During this lengthy period, respondents failed to demonstrate that they were in any better position to properly parent their children than when the children were removed from their care. Moreover, considering their lack of effort, there was no reasonable expectation that respondents would progress, any time soon, to the point where the children would be safe in their care.
Although respondents participated in parenting classes and supportive visitation, they did not benefit from the services offered. Respondents never demonstrated that they possessed the necessary skills to parent their children or that they could provide a safe and stable environment. During parenting time, respondents were easily frustrated and quickly overwhelmed by the children. Respondent-father was observed using aggressive discipline or no discipline at all, ignoring the children, deferring parenting to other family members present, and discussing the case in front of the children. Although respondent-mother, in general, engaged appropriately with the children, concerns regarding her parenting were related to the dynamics between her and respondent-father. Respondent-mother was easily influenced by respondent-father and she frequently submitted to his instructions regardless of how appropriate they were to the situation. Although there was some improvement in parenting skills, respondents regressed once services were removed. Indeed, respondents never made sufficient progress to warrant unsupervised parenting time.
Neither parent adequately addressed their mental health issues. Early on, it was recommended in their psychological evaluations that both respondents participate in counseling to address the diagnosis of chronic low-grade depression. Indeed, the psychological evaluation noted that respondent-father demonstrated an elevated abuse potential. Despite the recommendations, respondents failed to comply in any meaningful way with their counseling referrals, resulting in multiple subsequent referrals. Respondent-father's frequent angry outbursts toward the service providers, especially in front of the children, demonstrated that he had not obtained the emotional stability required to parent four special needs children. We note that respondent-mother concealed for nearly 10 months an opiate addiction. Although she was secretly, and apparently successfully, treating this addiction at a methadone clinic, the concealment of the problem is alarming considering her admission that she started using oxytocin because she was depressed.
Neither parent was able to obtain or maintain a legal source of income. At best, they were able to sustain employment for a few months before they were out of work again. Similarly, respondents were unable to find stable housing. During most of the 18 months the children were in care, respondents stayed with friends or family, and at times lived in their car. At the time of the termination hearing, respondent-mother was living with respondent-father's uncle, and respondent-father was in jail serving a sentence for a probation violation. Respondents had no viable housing plan upon respondent-father's release. Indeed, respondent-mother candidly admitted at the termination hearing that she was not in a position to care for her children at that time, and she would not be in a position to do so for at least another 6 to 12 months.
Accordingly, there was clear and convincing evidence to terminate respondents' parental rights to their children pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). The evidence supported a finding that, despite a multitude of services over several years, respondents failed to adequately address the conditions that brought the children into care. As a result, respondents could not demonstrate that they were in a position to properly parent their children or that they would be able to do so within a reasonable time. Moreover, these unresolved issues posed a risk of harm to the children if they were returned to the care of either parent.
IV. BEST INTERESTS
Finally, respondents argue that the trial court erred when it found that termination of their parental rights was in the children's best interests. We disagree. Once a statutory ground for termination has been established, the trial court must find that termination of parental rights is in the child's best interests before it can terminate a parent's rights to that child. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). Whether termination of parental rights is in the child's best interests must be proven by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). This Court reviews for clear error a trial court's finding that termination of parental rights is in a child's best interests. In re Jones, 286 Mich App 126, 129; 777 NW2d 728 (2009).
A trial court may consider several factors when deciding if termination of parental rights is in a child's best interests, including "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 psychological evaluations, the child's age, continued involvement in domestic violence, and a parent's history. In re Jones, 286 Mich App at 131.
After considering the totality of the record, the trial court concluded that a preponderance of the evidence demonstrated it was in the children's beset interest to terminate respondents' parental rights. After reviewing the record, we are not left with a definite and firm conviction that a mistake has been made.
At the time the trial court terminated respondents' parental rights, the children had been in care for more than 18 months. During this time, the respondents were offered a multitude of services that they either failed to participate in or failed to benefit from. As a result, respondents did not address their mental health issues, they were unable to find and sustain suitable housing or a legal source of income, and they failed to demonstrate appropriate parenting skills. Respondents were simply unable to properly parent their children and adequately provide for their needs.
Given their special needs, the need for stability, permanency, and consistency was particularly critical for these children. JS and KC, seven and six years old, both suffered from attention deficit hyperactivity disorder and post-traumatic stress disorder. Both were in treatment with a psychiatrist and a therapist to address, among other things, the trauma caused by the sexual assault perpetrated by their maternal uncle. They demonstrated behavioral issues that would have been challenging to any parent. Although there was no indication that five-year-old PC was sexually abused by her uncle, there was evidence that she had been inappropriately touched by her brothers, and she was in therapy to address these issues. The youngest child, four-year-old EC, was in therapy to address emotion regulation, i.e., anger management, while a pulmonologist, neurologists, and an ear, nose, and throat specialist addressed his seizure disorder and severe asthma. Because respondents were unable to comply with their own treatment plan, they could not meet their children's numerous special needs.
When balancing the best-interest factors, a trial court may also consider the advantages of a foster home over the parent's home and the possibility of adoption. In re Olive/Metts, 297 Mich App at 41-42. While the children may not have been thriving in their foster homes, it is clear they were doing as well as can be expected given their history, and they were showing progress in foster care. Most importantly, their medical and emotional needs were finally being addressed. After having been subject to instability for most, if not all, of their young lives, the children are entitled to stability, consistency, and finality. Accordingly, the trial court did not clearly err when it held that termination of respondents' parental rights was in the children's best interests.
Affirmed.
/s/ Henry William Saad
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron