Opinion
No. 349254 No. 349255
09-10-2020
In re SMITH-TAYLOR/THOMAS, Minors. In re SMITH-TAYLOR, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 09-489779-NA Before: JANSEN, P.J., and K.F. KELLY and CAMERON, JJ. PER CURIAM.
In Docket No. 349254, respondent-mother appeals the trial court's order terminating her parental rights to her minor children, ET-1, ET-2, and ZT. In Docket No. 349255, respondent-father appeals the trial court's order terminating his parental rights to his minor children, ET-1 and ET-2. Respondents' parental rights to their respective children were terminated under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist) and (g) (failure to provide proper care and custody). We affirm in both dockets.
The trial court also terminated the parental rights of ZT's unidentified father under MCL 712A.19b(3)(a)(i). ZT's father is not a party to this consolidated appeal.
I. BACKGROUND
This matter began in July 2016 when the Department of Health and Human Services ("DHHS") filed a petition. The petition alleged that Child Protective Services ("CPS") had "received a referral alleging the neglect of" ET-1 and ET-2, who were born 14 weeks premature and had been hospitalized since their births in mid-May 2016. It was alleged that respondent-mother had failed to acquire appropriate prenatal care and that respondents had both failed to provide support to the elder children after they were born. According to the petition, respondents did not have appropriate housing or the necessary supplies to care for the elder children.
ZT was not yet born at the time the petition was filed. We will refer to ET-1 and ET-2 as the "elder children."
The petition further alleged that respondent-mother had untreated mental health issues. Respondent-mother also had a history with CPS, and her parental rights to her first child, AT, were terminated in 2012. Respondent-mother gave birth to her second child, AW, in 2014. The petition alleged that, in 2016, respondent-mother's family member was granted a full guardianship over AW after respondent-mother attempted suicide. The petition requested that the trial court remove the elder children from respondents' care and custody and exercise jurisdiction over the children. The petition also sought termination of respondent-mother's parental rights. Petitioner did not seek termination of respondent-father's parental rights, but instead requested that the trial court place respondent-father on a treatment plan for reunification. After a preliminary hearing was held, the petition was authorized, and it was ordered that the elder children would be placed in foster care following their release from the hospital. Respondents were granted supervised parenting time.
After an adjudication trial was held in September 2016, the trial court exercised jurisdiction over the elder children under MCL 712A.2(b)(2) and held that they would remain temporary wards. The trial court held that termination of respondent-mother's parental rights at the initial dispositional stage was not appropriate and instead ordered petitioner to make reasonable efforts toward reunification with respect to both respondents. The parties and trial court agreed that respondents should participate in a "clinic evaluation."
The initial dispositional hearing was scheduled for November 10, 2016. However, the hearing could not be held because respondent-father did not appear and because respondent-mother was in jail. The matter was adjourned to November 30, 2016. Although respondent-mother had been released from jail by the time of the hearing, she did not appear and it was noted that her location was unknown. Respondent-father also failed to appear. Although clinic evaluations had not yet taken place, the trial court entered an initial dispositional order, requiring respondents to obtain suitable housing and legal income, to attend parenting classes and visitation with the elder children, and to remain in contact with the agency. Respondent-mother was also ordered to participate in mental health treatment.
A review hearing was held on January 10, 2017. Although neither respondent appeared, it was noted that respondent-mother had participated in the clinic evaluation. The evaluator recommended that respondent-mother participate in psychiatric services, individual therapy, and parenting classes. The foster care worker had not had any contact with respondent-mother during the reporting period, and the worker did not know where respondent-mother was living at the time of the hearing. Although respondent-mother had been referred to services, she did not engage in any services during the reporting period. Respondent-father had not participated in the clinic evaluation during the reporting period, and the foster care worker had not had any contact with respondent-father. The trial court ordered respondents to comply with the services outlined in the initial dispositional order and also ordered respondent-mother to participate in individual therapy.
Respondents both failed to appear at two separate hearings in April 2017 despite efforts on the part of the foster care worker to locate them. It was noted on the record at both hearings that respondents had made no efforts to comply with the case service plans. Thereafter, on May 22, 2017, petitioner filed a supplemental petition seeking termination of respondents' parental rights under MCL 712A.19b(3)(a)(ii), (c)(i), (g), and (j). Respondent-mother appeared at a May 24, 2017 hearing. Although it was intended to be a permanency planning hearing, the trial court converted it into a "pretrial hearing" given that petitioner had filed a supplemental petition. Respondent-mother was told that she could participate in services after she met with the foster care worker.
At the July 2017 termination hearing, respondents both appeared and admitted that they had failed to make progress. Respondents also admitted that they only recently had begun attending visitations with the elder children. The trial court ordered "best interest evaluations" and ordered that reasonable reunification efforts continue. The termination hearing continued on August 8, 2017, at which time the trial court considered the evaluations and heard testimony from the foster care worker. The foster care worker testified that respondent-mother had been communicating with the worker and that respondent-mother was employed. At the close of the hearing, the trial court found that statutory grounds for termination of respondents' parental rights had not been established. Because there were concerns that respondent-mother was consuming marijuana, the trial court ordered respondent-mother to participate in a substance abuse assessment and to submit to drug and alcohol screenings. The trial court also ordered respondents to submit to psychological evaluations.
At a January 23, 2018 hearing, the trial court and the parties acknowledged that respondents were both participating in services and attending visitations with the elder children. However, at a permanency planning hearing in March 2018, it was reported that respondent-mother was again incarcerated. At an April 2018 hearing, it was reported that service providers had terminated respondents from services due to lack of participation. Additionally, respondent-father's whereabouts were unknown and respondent-mother was still incarcerated. As of May 22, 2018, respondent-mother had pleaded nolo contendere to felonious assault and was serving a 10-month jail sentence. The foster care worker reported that she had not had contact with respondent-father during the reporting period.
On July 26, 2018, petitioner filed a supplemental petition, requesting that the trial court terminate respondents' parental rights to the elder children under MCL 712A.19b(3)(c)(i), (c)(ii), (g), (i), and (j). On September 18, 2018, the termination hearing commenced, and petitioner presented testimony from the foster care worker. However, because of issues with respondent-mother's behavior, the hearing was adjourned. The termination hearing was scheduled to continue on October 29, 2018.
On September 25, 2018, respondent-mother was released from jail. Shortly thereafter, she gave birth to ZT, and child protective proceedings were initiated. The petition alleged that ZT was at risk of neglect because respondent-mother had failed to rectify her lack of housing, lack of employment, mental health issues, and lack of parenting skills. It was further alleged that respondent-mother had a history of allegations of child neglect and that termination proceedings had been initiated with respect to the elder children. The petition requested that the trial court remove ZT from respondent-mother's care and custody, exercise jurisdiction over ZT, and terminate respondent-mother's parental rights. After a preliminary hearing was held, the petition was authorized and ZT was placed in foster care. The trial court later exercised jurisdiction over ZT, and ZT was subsequently placed in the same foster home as the elder children.
In October 2018, the trial court permitted respondent-mother's appointed counsel to withdraw after determining that there had been a breakdown in the attorney-client relationship. The trial court appointed a different attorney to represent respondent-mother. The trial court also held that, although the termination hearing had already begun and testimony had been taken, it was necessary to begin the termination hearing anew.
The termination hearing began on January 17, 2019. On that date, respondent-mother's trial counsel asked for an adjournment. Respondent-mother's trial counsel indicated that he had suffered a stroke after he was appointed. Respondent-mother's trial counsel requested additional time "so [he could] review [respondent-mother's] file as to the things that [respondent-mother] indicated [were] in the file." The trial court decided to proceed with petitioner's proofs and respondent-father's defense, but to resume the hearing the following month to allow respondent-mother's counsel to better prepare and present her case.
During the January 17, 2019 hearing, petitioner and respondent-father presented their proofs. Various service providers testified to respondents' generally poor compliance with their case service plans, and respondent-father testified on his own behalf. Respondent-mother's trial counsel cross-examined the witnesses. When the parties returned on February 5, 2019, respondent-mother presented her proofs, and petitioner called the children's foster mother as a rebuttal witness. After the close of proofs, the trial court found that reasonable reunification efforts were made but that respondents had failed to take advantage of most of the services. The trial court also concluded that statutory grounds existed to support the termination of respondents' parental rights under MCL 712A.19b(3)(c)(i) and (g) and that termination of respondents' parental rights was in their respective children's best interests. These appeals followed.
II. ANALYSIS
A. RESPONDENT-MOTHER (DOCKET NO. 349254)
1. ASSISTANCE OF COUNSEL
Respondent-mother argues that the trial court's decision to deny her motion to adjourn denied her of effective assistance of counsel on the first day of the termination hearing. We disagree.
Respondent-mother also argues in a cursory manner that the trial court's "ruling constituted denial of due process[.]" Because respondent-mother fails to present this argument in a meaningful manner, it is abandoned. See People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004).
In termination cases, "this Court applies by analogy the principles of ineffective assistance of counsel as they have developed in the criminal law context." In re Simon, 171 Mich App 443, 447; 431 NW2d 71 (1988). "Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004) (quotation marks and citation omitted). "The trial court must first find the facts and then decide whether those facts constitute a violation of the [litigant's] constitutional right to effective assistance of counsel. The trial court's factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo." Id. (citation omitted). A finding is clearly erroneous if this Court is "left with a definite and firm conviction that the trial court made a mistake." People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017) (quotation marks and citation omitted).
To prevail on a claim of ineffective assistance of counsel, a litigant "must establish (1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel's unprofessional errors, the outcome of the proceedings would have been different." People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). Ineffective assistance of counsel may result from "structural or procedural impediments by the state that prevent the [litigant] from receiving the benefits of the constitutional guarantee" of effective assistance of counsel. See People v Mitchell, 454 Mich 145, 153; 560 NW2d 600 (1997).
With respect to the performance prong, at the beginning of the January 17, 2019 hearing, respondent-mother's trial counsel requested an adjournment because he had suffered from a stroke after he was appointed to represent respondent-mother. Trial counsel reported that he required additional time to review the file. The trial court decided to proceed with petitioner's proofs and respondent-father's defense, but to resume the hearing the following month to allow counsel to better prepare and present respondent-mother's case.
At a Ginther hearing, when trial counsel was asked if he had been prepared for the January 17, 2019 hearing, he responded, "In a sense yes and in a sense no." Trial counsel clarified that his "speech was slurred" and, as a result, he did not "really call" respondent-mother "earlier because of the simple fact [that] it was difficult" for others to "understand" him. However, trial counsel was able to review the file and speak to respondent-mother before the hearing. Trial counsel denied that he was "totally unprepared" on January 17, 2019. Instead, trial counsel simply had concerns that others would have difficulty understanding him. Trial counsel also denied that his stroke affected his "ability to reason or to comprehend what[] [was] happening around [him]," and he believed that he was able to effectively represent respondent-mother despite his speech issues. Trial counsel did not believe that respondent-mother was denied effective assistance of counsel as a result of the trial court's decision not to adjourn the January 2019 termination hearing.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
The trial court found that trial counsel's testimony was credible, that he was able to prepare for the hearing, and that he was able to effectively represent respondent-mother during the January 2019 hearing despite his speech issues. Specifically, the trial court found that trial counsel was able to reasonably and effectively cross-examine witnesses. In light of this record, we cannot say that the trial court clearly erred by finding that counsel's performance did not fall "below an objective standard of reasonableness under prevailing professional norms," see Sabin (On Second Remand), 242 Mich App at 659.
Furthermore, with regard to the prejudice prong, we conclude that the record does not support respondent-mother's contention that the result of the proceeding would have been different if the request for an adjournment had been granted. As will be discussed in more detail below, throughout this case, respondent-mother failed to comply with the case service plan, failed to consistently attend parenting time, failed to address her mental health issues, and failed to obtain stable housing and employment. Additionally, respondent-mother was incarcerated for extended periods of time during the proceeding as a result of her criminal actions. Despite this, respondent-mother refused to take responsibility for the behavior that led to her convictions, and she minimized her mental health issues. In light of this evidence, we conclude that the trial court did not err in ruling that respondent-mother received effective assistance of counsel.
2. DUE PROCESS
Respondent-mother argues that her right to due process was violated because the trial court did not properly address her desire to present an additional witness, and because petitioner called a rebuttal witness whose testimony exceeded the proper scope of rebuttal.
Respondent-mother also argues that she was denied a fair trial. Because respondent-mother fails to present this argument in a meaningful manner, it is abandoned. See Harris, 261 Mich App at 50.
The determination of "[w]hether a party has been afforded due process is a question of law that is reviewed de novo." In re Moroun, 295 Mich App 312, 329; 814 NW2d 319 (2012). "The Fourteenth Amendment of the United States Constitution provides that [n]o State shall . . . deprive any person of life, liberty, or property, without due process of law[.]" In re Sanders, 495 Mich 394, 409; 852 NW2d 524 (2014) (quotation marks omitted). "Included in the Fourteenth Amendment's promise of due process is a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests. Among these fundamental rights is the right of parents to make decisions concerning the care, custody, and control of their children." Id. (quotation marks and citation omitted). However, the state may constitutionally terminate a parent's parental rights if it affords the parent fundamentally fair procedures. Santosky v Kramer, 455 US 745, 753-754; 102 S Ct 1388; 71 L Ed 2d 599 (1982). "The fundamental requisite of due process of law is the opportunity to be heard." In re Rood, 483 Mich 73, 92; 763 NW2d 587 (2009) (quotation marks and citation omitted). Additionally, "the right to present a defense is a fundamental element of due process," People v Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984), and it "includes the right to call witnesses" to establish that defense, People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008). However, the right to present a defense is limited by the requirement that a respondent "must still comply with established rules of procedure and evidence designed to assure both fairness and reliability[.]" Id. (quotation marks and citation omitted).
When the termination hearing resumed on February 5, 2019, respondent-mother testified on her own behalf. In relevant part, respondent-mother testified on direct examination that she visited the children "regularly." When respondent-mother was asked on cross-examination if she had missed 37 out of 78 of her visits with the elder children, respondent-mother stated "[n]ot since I been [sic] out [of jail], no." When respondent-mother was asked when she last visited the children, respondent-mother replied that a visit was scheduled on February 4, 2019 but that she was unable to attend because she did not have transportation.
After respondent-mother finished testifying, the trial court asked respondent-mother's trial counsel about the "next witness." The following exchange occurred:
Respondent-Mother's Counsel: I do have another witness that the mother wants me to call who's her cousin, but it has more to do with the custody of the children and that's for—
The Trial Court: Any rebuttal witnesses [for petitioner]?
Petitioner: Your Honor, would the Court allow me to call the foster parent briefly?
The trial court permitted petitioner to call the foster mother. The foster mother then testified that the minor children were doing very well in her care, and that she and her husband wanted to adopt them. The foster mother denied that respondent-mother had consistently visited the elder children during the 14 months that they had been in her care. The foster mother also denied that respondent-mother had consistently visited ZT during the four months that he had been in her care. The foster mother testified that respondent-mother had last visited two weeks earlier and that respondent-father had last visited "at least four weeks ago[.]" When asked how often respondents visited their respective children, the foster mother replied "[l]ess than fifty percent." The foster mother expressed concern that respondents were "not consistent." She elaborated as follows:
I'm the children's third placement, so of course the trust issues are there and so when the parents don't come consistently that creates you know, fear[], and they're not aware why we're going, and as soon as we pull in the parking lot they start crying and they say they want to go home. It takes them a little while to warm up obviously because it's been a while. Last year I would say mom had come like three weeks in a roll [sic], and I tried to explain to her, see they're coming to you quicker because they're realizing they're coming to the same place and they're seeing you, you know, consistently. Trying to encourage her that that's . . . helping them feel more comfortable.
When the foster mother was asked about the children's bond with respondents, the foster mother explained:
With dad he's more kid friendly. He lets the children come to him, and . . . gets down on their level and plays with them a little more, so they warm up to him, and they run around and play with him. And then when they come out from the back and they see me, they run to me and they're happy to see that I'm there,
but they do warm up to him more quickly than mom. And with mom . . . I would say there's not really much of a bond at all . . . . I know she loves them, but I don't really think that she knows how to create that bonding . . . .
When the foster mother finished her testimony, the trial court called for closing argument. Respondent-mother's counsel reiterated his wish to call "the other witness," whom he identified as respondent-mother's cousin. The children's lawyer guardian ad litem ("L-GAL") objected on the ground that the additional witness was being offered for reasons relating to placement of the children, as opposed to whether respondent-mother's parental rights should be terminated. Respondent-mother's attorney replied that respondent-mother felt that "the placement was not appropriate" and that he had "indicated to them [sic] that the foster care workers make that decision . . . ." Based on this, respondent-mother's counsel indicated that he "kind of agree[d] with [the L-GAL]." The L-GAL indicated that he would "object based on relevance[.]" The trial court then indicated that it was denying respondent-mother's request to call the witness.
Respondent-mother first argues that the trial court erred by failing to address her request to present an additional witness and by instead proceeding directly to petitioner's rebuttal witness. Assuming without deciding that the trial court erred, we conclude that the error was harmless. An "error is not a ground for reversal unless after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative." People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999) (quotation marks omitted).
Respondent-mother argues that the trial court "ignoring [her trial counsel's] assertion that he had another witness . . . was government action that denied [respondent-mother] effective assistance of counsel." However, because respondent-mother fails to present this argument in a meaningful manner, it is abandoned. See Harris, 261 Mich App at 50.
At the hearing on remand, respondent-mother's trial counsel testified that he had met with respondent-mother's cousin. Trial counsel agreed that respondent-mother's cousin was not offered so that she could testify as to whether respondent-mother complied with the case service plan. Rather, he explained that respondent-mother's cousin "was going to try to argue that the children [should] be placed with her." Although "the fact that a child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in the child's best interests," In re Olive/Metts Minors, 297 Mich App 35, 43; 823 NW2d 144 (2012) (quotation marks and citation omitted), relative placement does not bar a trial court from terminating parental rights. Rather, a "trial court may terminate parental rights in lieu of placement with relatives if it finds that termination is in the child's best interests[.]" Id.
In this case, the children were not in the care of respondent-mother's cousin at the time of termination. Rather, they were in a nonrelative foster home because petitioner determined that there were not any suitable relative placements. Importantly, petitioner specifically excluded respondent-mother's cousin as a potential placement, and respondent-mother indicted during the proceeding that she wanted the children to remain in the foster home. Furthermore, the trial court noted that, even if the children were in the care of a relative, "it would be difficult to conclude that" a guardianship "would be in the best interest of the[] children" given the facts of the case. For the reasons discussed in more detail below, we agree with the trial court's reasoning. Therefore, even if we were to conclude that the trial court erred, respondent-mother would not be entitled to the relief she seeks. See Lukity, 460 Mich at 496.
Respondent-mother next argues that her right to due process was violated because the foster mother provided testimony that exceeded the scope of rebuttal. In People v Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996), our Supreme Court defined the scope of rebuttal as follows:
Rebuttal evidence is admissible to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same. The question whether rebuttal is proper depends on what proofs the defendant introduced and not on merely what the defendant testified about on cross-examination. [Quotation marks and citation omitted.]
The Figgures Court further stated that the test for whether a trial court properly admitted rebuttal evidence "is not whether the evidence could have been offered in the prosecution's case in chief[.]" Id. Rather, admissibility depends on "whether the evidence is properly responsive to evidence introduced or a theory developed by the defendant." Id. "As long as evidence is responsive to material presented by the defense, it is properly classified as rebuttal, even if it overlaps evidence admitted in the prosecutor's case in chief." Id.
In this case, while some of the foster mother's testimony could have been presented in petitioner's case-in-chief, the record shows that it was presented in response to evidence introduced by respondent-mother, i.e., that she consistently attended parenting time visits. The foster mother also testified that she was willing to adopt the minor children and commented on respondent-mother's bond with the children, which were topics that were not addressed during respondent-mother's testimony. However, it is well settled that "a plaintiff may . . . introduce during rebuttal new and independent facts competent as part of his [or her] testimony in chief [if] permitted to do so by the court." Sullivan Indus, Inc v Double Seal Glass Co, Inc, 192 Mich App 333, 348; 480 NW2d 623 (1991). In this case, the foster mother's testimony related to whether it was in the children's best interests to terminate respondent-mother's parental rights. Consequently, we conclude that respondent-mother's due process rights were not violated and that the trial court did not err.
Furthermore, even if we were to conclude that the trial court erred, respondent-mother would not be entitled to relief. During petitioner's case-in-chief, testimony was presented that respondent-mother failed to consistently visit the minor children when she was free from incarceration, that she failed to complete parenting classes, that she failed to address her mental health issues, and that her bond with the minor children was limited. One of the foster care workers also testified that the minor children were bonded with their foster parents and that the foster parents were willing to adopt the children. Consequently, because the foster mother's challenged testimony mirrored testimony that was already admitted into evidence, any error in admitting the foster mother's testimony was harmless. See Lukity, 460 Mich at 496.
3. REASONABLE REUNIFICATION EFFORTS
Respondent-mother argues that petitioner failed to offer reasonable services and accommodations to fit her needs and, thus, failed to make reasonable efforts to reunify her with the minor children. We disagree.
"The time for asserting the need for accommodation in services is when the [trial] court adopts a service plan," at which time a respondent must "object or indicate that the services provided to [her are] somehow inadequate[.]" In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012) (quotation marks and citation omitted). Because respondent-mother did not argue that the services offered to her were inadequate, this issue is unpreserved. See id.
Both this Court and our Supreme Court have applied the plain-error standard set forth in People v Carines, 460 Mich 750; 597 NW2d 130 (1999), to unpreserved claims of error arising out of child protective proceedings. See In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019). The Carines test "has four elements":
1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) . . . the plain error affected substantial rights . . . [, and 4)] once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted . . . when the plain, forfeited error . . . seriously affected the fairness, integrity or public reputation of judicial proceedings . . . . [People v Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018), quoting Carines, 460 Mich at 763-764 (alterations and some ellipses in Randolph).]
An error has affected a party's "substantial rights when there is 'a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.' " People v Walker, 504 Mich 267, 276; 934 NW2d 727 (2019), quoting Carines, 460 Mich at 763.
"Under Michigan's Probate Code, [DHHS] has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637 (2017). "As part of these reasonable efforts, the [DHHS] 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." Id. This includes updating the parent's treatment plan throughout the case, and giving the parent reasonable time to make changes and benefit from the services before the termination of parental rights. In re Mason, 486 Mich 142, 156; 782 NW2d 747 (2010). "If a parent cannot or will not meet her irreducible minimum parental responsibilities, the needs of the child must prevail over the needs of the parent." In re Terry, 240 Mich App 14, 28; 610 NW2d 563 (2000) (quotation marks and citation omitted).
However, if a parent suffers from a disability under the Americans with Disabilities Act ("ADA"), 42 USC 12101 et seq., or suffers from "a known or suspected intellectual, cognitive, or developmental impairment," the DHHS has a duty to reasonably accommodate the parent's disability by offering services designed to facilitate the child's return to his or her home. In re Hicks/Brown, 315 Mich App 251, 281-282; 890 NW2d 696 (2016), aff'd in part and vacated in part on other grounds, 500 Mich 79 (2017). In In re Hicks/Brown, 315 Mich App at 282, this Court explained that DHHS must
offer evaluations to determine the nature and extent of the parent's disability and to secure recommendations for tailoring necessary reunification services to the individual. The DHHS must then endeavor to locate agencies that can provide services geared toward assisting the parent to overcome obstacles to reunification. If no local agency catering to the needs of such individuals exists, the DHHS must ensure that the available service providers modify or adjust their programs to allow the parent an opportunity to benefit equally to a nondisabled parent.
"[E]fforts at reunification cannot be reasonable . . . if the [DHHS] has failed to modify its standard procedures in ways that are reasonably necessary to accommodate a disability under the ADA." In re Hicks/Brown, 500 Mich at 86. However, "[w]hile the [DHHS] has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of [the] respondent[] to participate in the services that are offered." In re Frey, 297 Mich App at 248.
Respondent-mother argues that petitioner "has obligations under the ADA . . . to reasonably accommodate a disability" and that "[s]imply offering a person who has been diagnosed with a mental illness a psychological evaluation does not directly deal with the issue of mental illness." However, respondent-mother never explains or rationalizes how her mental illness constitutes a disability requiring accommodation. It is not the duty of this Court to search for authority to sustain or reject respondent's position. See In re Smith, 324 Mich App 28, 45; 919 NW2d 427 (2018) ("Respondent does not identify a disability of her own that required accommodation and a party may not leave it to this Court to search for authority to sustain or reject its position.") (quotation marks and citation omitted). Thus, respondent-mother has abandoned any argument that her mental health issues amounted to disabilities under the ADA. See id.
Additionally, we fail to see how petitioner failed to offer respondent-mother services to address her mental health issues. When the proceeding began in 2016, respondent-mother was ordered to complete a clinic evaluation to determine the type of services that she required. At the time of the November 2016 hearing, respondent-mother had not yet completed the clinic evaluation because she was in jail on charges related to attempted arson. Although respondent-mother subsequently completed the assessment and was ordered to participate in mental health treatment, including individual therapy, respondent-mother entirely failed to participate in these services. Respondent-mother did not express an interest in participating in services until the supplemental petition was filed in May 2017. During the first termination hearing in July 2017, respondent-mother acknowledged that she was aware that she had been ordered to participate in therapy and that she had not done so. Although respondent-mother later began participating in services, as of April 2018 she was again incarcerated and her services had been terminated for lack of participation. Respondent-mother later pleaded nolo contendere to felonious assault, was sentenced to 10 months in jail, and was released in September 2018. As of October 2018, respondent-mother remained incapable of controlling her emotions, and she exhibited aggression toward the foster care worker and the children's foster mother. Even so, respondent-mother did not submit to a psychological evaluation until February 4, 2019, which was the day before the second half of the termination hearing commenced. Respondent-mother testified that she did not attend individual therapy during the proceeding, and she minimized her mental health issues.
Thus, given that respondent-mother failed to uphold her "commensurate responsibility" to engage in and benefit from the services offered by petitioner, see In re Frey, 297 Mich App at 248, we are not persuaded that she would have fared better if petitioner had offered other services, see In re Fried, 266 Mich App 535, 543; 702 NW2d 192 (2005). We conclude that the trial court did not commit plain error affecting respondent-mother's substantial rights when it determined that petitioner made reasonable efforts to promote reunification.
4. STATUTORY GROUNDS
Respondent-mother argues that the trial court clearly erred by finding clear and convincing evidence supporting the two statutory grounds cited in support of termination. We find no clear error warranting reversal.
"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 120, 139; 809 NW2d 412 (2011). We review for clear error the trial court's decision whether grounds for termination have been proven by clear and convincing evidence. In re Medina, 317 Mich App 219, 226; 894 NW2d 653 (2016). "A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made," with the reviewing court "defer[ring] to the special ability of the trial court to judge the credibility of witnesses." In re LaFrance, 306 Mich App 713, 723; 858 NW2d 143 (2014) (citation omitted).
We conclude that the trial court did not clearly err by finding that grounds for terminating respondent-mother's parental rights to the minor children were established under MCL 712A.19b(3)(g). MCL 712A.19b(3)(g) authorizes termination under the following circumstances:
The parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child[ren] 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[ren]'s age[s].
In this case, respondent-mother was unable to provide proper care and custody to the elder children when they were taken into care in July 2016 because she lacked suitable housing or a stable income, and she had untreated mental health issues. Respondent-mother also had medically neglected the elder children while she was pregnant with them and had failed to provide for the children in the months following their premature births. When ZT was taken into care in October 2018, respondent-mother did not have stable housing or a legal income, she continued to have untreated mental health issues, and she was failing to make progress on the case service plan in the case related to the elder children.
Despite being referred to services, respondent-mother never established that she had resolved her housing issue during the course of the proceeding. Indeed, respondent-mother acknowledged that she was looking for housing at the time of termination. Although respondent-mother reported in February 2019 that she was working at McDonald's, the record supports that she remained unemployed for a vast majority of the proceeding. Furthermore, at the beginning of the proceeding involving the elder children, respondent-mother was referred for substance abuse services because of concerns that she was consuming marijuana. Respondent-mother failed to participate in substance abuse services despite being referred "[a]bout five times." Respondent-mother also missed 14 out of 33 drug screens. This was the case even though respondent-mother was informed that missed drug screenings would be considered positive.
Respondent-mother also failed to address her mental health issues despite the fact that she was repeatedly referred for psychological evaluation and individual counseling. Additionally, at the time of the February 2019 termination hearing, respondent-mother had not completed parenting classes despite being referred multiple times. Respondent-mother was incarcerated twice during the proceeding, which resulted in her being unable to attend parenting time with the children for extended periods of time. However, respondent-mother also failed to consistently attend parenting time when she was not incarcerated. Indeed, the foster mother testified that respondent-mother lacked commitment and would sometimes altogether fail to attend visits despite the fact that the children had been transported to the facility.
When respondent-mother did attend parenting time, she would sometimes behave inappropriately. Specifically, in October 2018, respondent-mother brought her cousin and AT to a visitation; when respondent-mother was told that other family members could not participate in visitation, respondent-mother elected to speak with the foster care worker's supervisor instead of engage with the children. At a subsequent parenting time, respondent-mother was told to stop texting on her cell phone. She became upset, stole a diaper bag from the children's foster mother, and refused to return the diaper bag. Law enforcement was contacted after respondent-mother threatened the foster care worker and the children's foster mother with physical harm. Despite the fact that respondent-mother remained unable to control her emotions, she denied at the February 2019 termination hearing that she had a mental illness and testified that she would "be just fine" if the children were placed in her care. Thus, the record establishes that respondent-mother was unable to provide proper care and custody at the time of termination.
Furthermore, there is no evidence that respondent-mother would have been able to provide proper care and custody within a reasonable time given the ages of the minor children. Respondent-mother demonstrated poor judgment and a lack of commitment during the lengthy proceeding. Given the lack of evidence during the proceeding that respondent-mother was able to comply with the case service plan, to consistently attend visitation with the children, to maintain stable housing and employment, and to treat her mental health issues, it is unlikely that she would be able to provide proper care and custody within a reasonable time. Indeed, respondent-mother denied that she had mental health issues and failed to attending parenting time visits in the weeks leading up to termination. At the time of termination, ET-1 and ET-2 were over 2-1/2 years old and ZT was five months old. The minor children had never been in respondent-mother's care. Rather, all of the children were removed from her care before they were released from the hospital following their births. Because the children required consistency and permanency, the trial court's finding that termination of respondent-mother's parental rights was proper under MCL 712A.19b(3)(g) does not leave us with a definite and firm conviction that a mistake has been made. In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). Because we have concluded that at least one ground for termination existed, we need not specifically consider the additional ground upon which the trial court based its decision. Id. at 461.
5. BEST INTERESTS
Respondent-mother argues that the trial court erred by finding that termination of her parental rights was in the children's best interests. We disagree.
"The trial court must order the parent's rights terminated if the Department has established a statutory ground for termination by clear and convincing evidence and it finds from a preponderance of the evidence on the whole record that termination is in the children's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). We review the trial court's best-interest determination for clear error. Id.
This Court focuses on the children—not the parents—when reviewing best interests. In re Trejo Minors, 462 Mich 341, 356; 612 NW2d 407 (2000). "In making its best-interest determination, the trial court may consider the whole record, including evidence introduced by any party." In re Medina, 317 Mich App at 237 (quotation marks and citation omitted).
[T]he 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 . . . the children's well-being while in care, and the possibility of adoption." [In re White, 303 Mich App at 713-714 (quotation marks and citation omitted).]
Although the record supports that respondent-mother was bonded with the children at times, the record also supports that respondent-mother was inconsistent with attending visitations. Respondent-mother was incarcerated twice during the proceeding, which resulted in her being unable to visit the elder children for extended periods of time. The record supports that, after respondent-mother was released from jail in September 2018, she continued to be inconsistent with attending visitations. As the proceeding progressed, the elder children no longer seemed to be bonded with respondent-mother and did not look to her as a parental figure. Instead, they would seek out their foster mother, whom they referred to as "mom."
Additionally, respondent-mother did not know how to appropriately approach the children, would not engage in "child led play," and would make inappropriate comments to the elder children. Respondent-mother also behaved in an aggressive manner toward the foster care worker and the children's foster mother during parenting time. Respondent-mother was never able to have unsupervised parenting time with any of the children, and none of the children had ever been in respondent-mother's care. Thus, to the extent that respondent-mother shared a bond with the children at the time of termination, the record supports that the bond was not healthy for the children. See In re CR, 250 Mich App 185, 196-197; 646 NW2d 506 (2002), overruled on other grounds by In re Sanders, 495 Mich 394 (2014) (holding that the fact that there was a "serious dispute" on the record concerning whether the respondent had "a healthy bond" with her children supported that termination of her parental rights was in the children's best interests).
Additionally, the parent-child bond is only one factor for the trial court to consider. See In re Olive/Metts, 297 Mich App at 41-42. As discussed above, respondent-mother failed to comply with her case service plan. Despite multiple opportunities to remedy the barriers to reunification, respondent-mother did not participate in the services she was offered. Respondent-mother consistently demonstrated a lack of commitment and an inability to provide stability and permanency to the children. Meanwhile, the children were "thriving" in their placement, where they had the opportunity to achieve permanency and stability. The record supports that the children were bonded to their foster parents and looked to the foster mother for support, guidance, and comfort. The foster mother testified that she and her husband were "[a] thousand" percent committed to adopting all of the children so that they could stay together. For these reasons, we conclude that the trial court did not clearly err by finding that termination of respondent-mother's parental rights to the minor children was in the children's best interests.
B. RESPONDENT-FATHER (DOCKET NO. 349255)
1. STATUTORY GROUNDS
Respondent-father argues that the trial court clearly erred in finding that statutory grounds existed to terminate his parental rights to the elder children. We conclude that the trial court did not clearly err by finding that grounds for terminating respondent-father's parental rights to the elder children were established under MCL 712A.19b(3)(g). MCL 712A.19b(3)(g) authorizes termination under the following circumstances:
The parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child[ren] 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[ren]'s age[s].
Our Supreme Court has held that "a parent's failure to comply with the parent-agency agreement is evidence of a parent's failure to provide proper care and custody[.]" In re JK, 468 Mich 202, 214; 661 NW2d 216 (2003).
In this case, respondent-father was ordered to complete the treatment plan, which required him to complete parent education courses, to attend supervised visitation with the elder children, and to obtain and maintain suitable housing and a legal source of income. Although respondent-father had suitable housing with a relative at the beginning of the proceeding, respondent-father did not permit the foster care worker to view his home any time after June 2018. Respondent-father also never established that he could obtain or maintain a legal source of income, and he failed to complete parenting classes despite being referred multiple times during the proceeding. Respondent-father also failed to submit to a psychological evaluation despite being told to complete one after the first supplemental petition was filed in 2017. Furthermore, throughout the lengthy proceeding, respondent-father would fail to maintain contact with the foster care workers and would fail to attend hearings. One foster care worker testified that she did not have contact with respondent-father for the first eight months of the case. During that time, respondent-father did not respond to phone calls or letters and failed to attend visitation with the elder children. As of February 2019, respondent-father continued to be inconsistent with attending visitations with the elder children. Thus, the record establishes that respondent-father was unable to provide proper care and custody at the time of termination.
Furthermore, there is no evidence that respondent-father would have been able to provide proper care and custody within a reasonable time given the ages of the elder children. Respondent-father demonstrated a lack of commitment to gaining custody of the elder children during the proceeding, which lasted over 2-1/2 years. Given the lack of evidence that respondent-father would comply with the case service plan or consistently attend visitations with the children, it is unlikely that he would be able to provide proper care and custody within a reasonable time. At the time of termination, ET-1 and ET-2 were over 2-1/2 years old and had never been in respondent-father's care. They required consistency and permanency. Thus, the trial court's finding that termination of respondent-father's parental rights was proper pursuant to MCL 712A.19b(3)(g) does not leave us with a definite and firm conviction that a mistake has been made. In re HRC, 286 Mich App at 459. Because we have concluded that at least one ground for termination existed, we need not specifically consider the additional ground upon which the trial court based its decision. Id. at 461.
In reaching this conclusion, we reject respondent-father's argument that petitioner failed to make reasonable efforts towards reunification. Because this issue is unpreserved, In re Frey, 297 Mich App at 247, our review is limited to plain error affecting respondent-father's substantial rights, Randolph, 502 Mich at 10.
The petition was filed in July 2016, and respondent-father was ordered to comply with the case service plan. At the time of the July 7, 2017 termination hearing, respondent-father admitted that he had not participated in any services, had not remained in contact with the foster care worker, and had only recently begun attending visitation with the elder children. After January 2018, respondent-father stopped attending parenting time visits for an extended period of time. As of April 2018, providers had terminated respondent-father's services for lack of participation. Respondent-father never completed the required psychological evaluation or parenting classes despite receiving multiple referrals. Thus, given that respondent-father failed to uphold his "commensurate responsibility" to engage in and benefit from the services offered by petitioner, see In re Frey, 297 Mich App at 248, we are not persuaded that he would have fared better if petitioner had offered other services, see In re Fried, 266 Mich App at 543. We conclude that the trial court did not commit plain error affecting respondent-father's substantial rights when it determined that petitioner made reasonable efforts to promote reunification.
2. BEST INTERESTS
Respondent-father argues that the trial court erred by finding that termination of his parental rights was in the elder children's best interests. We disagree.
"In making its best-interest determination, the trial court may consider the whole record, including evidence introduced by any party." In re Medina, 317 Mich App at 237 (quotation marks and citation omitted).
[T]he 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 . . . the children's well-being while
in care, and the possibility of adoption." [In re White, 303 Mich App at 713-714 (quotation marks and citation omitted).]
Although respondent-father was appropriate during the visits that he attended with the elder children, the record supports that respondent-father missed "a lot" of visits during the course of the proceeding. Indeed, there were "[q]uite a few" times when respondent-father would fail to attend visits without providing notice to the foster care worker. After prolonged periods of absence, the elder children would not initially recognize respondent-father. Thus, any bond that respondent-father had with the elder children was not healthy for them. See In re CR, 250 Mich App at 196-197.
Respondent-father demonstrated a lack of commitment throughout the course of the lengthy proceeding and never provided support to the children. Respondent-father failed to comply with the case service plan, failed to demonstrate that he could obtain and maintain employment, and entirely failed to maintain contact with the foster care worker for the first eight months of the proceeding. Respondent-father also failed to attend hearings. Meanwhile, the elder children were "thriving" in their pre-adoptive placement, where they had the opportunity to achieve permanency and stability. The record supports that the children were bonded to their foster parents, referred to their foster mother as "mom," and looked to the foster mother for support, guidance, and comfort. For these reasons, we conclude that the trial court did not clearly err by finding that termination of respondent-father's parental rights to the elder children was in their best interests.
Affirmed in both dockets.
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
/s/ Thomas C. Cameron