In re A. M. Ray

1

In re A. M. RAY, Minor.

Nos. 360615, 360616

Court of Appeals of Michigan

October 13, 2022

UNPUBLISHED

Montcalm Circuit Court Family Division LC No. 2020-000954-NA

Before: MARKEY, P.J., and SAWYER and BOONSTRA, JJ.

PER CURIAM.

In these consolidated appeals,^[1] respondents appeal as of right the termination of their parental rights to their child, AMR under MCL 712A.19b(3)(c) (conditions not rectified),^[2] (g) (failure to provide proper care and custody), and (j) (reasonable likelihood that the child will be harmed if returned to the parent's home). We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

The petition initiating this case alleged that the respondents' home in Coral, Michigan- where they lived with mother's parents and brother-was harmful to AMR as a result of unsanitary and unsafe conditions. At an adjudication in September 2020, respondents admitted allegations in the petition. Specifically, they admitted that their home was in a state of disarray, that there were cat and dog feces on the floor and dishes throughout the home, that more than 20 cats as well as dogs lived in the house, and there were structural deficiencies in the house. Respondents also acknowledged that these conditions posed a threat to AMR and that, despite instructions to "clean it up," they had not cleaned the home.

During this case, respondents were given case services plans and provided with numerous services. Although unfit housing initially brought AMR into the trial court's jurisdiction, during the case, the Department of Health and Human Services (DHHS) also identified two additional barriers to reunification: parenting skills and emotional stability. To address the barriers to reunification, respondents were offered various services, including supervised parenting time, psychological assessments, Alpha Center Parenting Classes, an In-Home Education Program, the Foster Care Supportive Visitation Program, therapy at Community Hope, referrals for therapy at Transitions Counseling, a trauma assessment for AMR, housing resources such as EightCap, Early On and Early Head Start for AMR, a neurological assessment for AMR, medical and dental referrals, and case management services.

Between the beginning of the case and October 2021, respondents participated in, and completed some-though not all-of these services. They underwent psychological evaluations in November 2020 with Dr. Shannon Lowder, Psy.D, LLP. Dr. Lowder diagnosed father with Intermittent Explosive Disorder and Adjustment Disorder with Depressed Mood. Although she did not perform or recommend an IQ test, Dr. Lowder found evidence that father may have a "cognitive limitation," and she "assumed" that father "likely has a Borderline IQ." In comparison, regarding mother, Dr. Lowder saw "no evidence of significant cognitive impairment." However, in terms of mother's mental health, Dr. Lowder diagnosed mother with Adjustment Disorder with Depressed Mood and Persistent Depressive Disorder (Dysthymia).

Aside from their psychological evaluations, respondents regularly attended their parenting-time visits with AMR. They participated in parenting services though Catholic Charities, including the Foster Care Supportive Visitation Program, and they watched the Alpha Center parenting videos as instructed. They did not, however, complete their homework for the Alpha classes. They were also less successful with mental health counseling. Both respondents began counseling, but they were discharged from Community Hope for lack of participation and progress, and they chose not to avail themselves of additional counseling referrals. Notably, regarding housing, despite respondents' efforts, for many months they struggled to find new housing because father's criminal history prevented respondents from qualifying for the housing programs offered to them by the DHHS. Nevertheless, in July 2021, respondents moved in with mother's brother and his wife, AR. The house was physically fit for AMR, but the DHHS rejected the house because of the home's other occupants, namely AR.

In September 2021, the trial court reduced respondents' parenting time with AMR, which had been three hours each week, to a one-hour session each week for the Foster Care Supportive Visitation Program with Tori Patch. In October 2021, the trial court changed the goal from reunification to termination and determined that the DHHS should initiate termination proceedings. At that time, the trial court also ordered that reasonable efforts, including parenting time, should cease.

The DHHS petitioned for termination in January 2022, and the trial court held a one-day termination hearing in February 2022. Following the hearing, the trial court found grounds for termination under MCL 712A.19b(3)(c), (g), and (j). The trial court reasoned that respondents' housing problems had not been rectified because AR lived in the house with respondents. The trial court also concluded that respondents had not addressed their parenting-skill and emotional-stability issues. According to the trial court, respondents had "stubbornly" refused to participate in a case service plan to address issues that could have been "easily" resolved. Finding that termination was also in AMR's best interests, the trial court terminated respondents' parental rights. Respondents now appeal as of right.

II. REASONABLE EFFORTS

On appeal, respondents both contend that termination of their parental rights was improper because the DHHS failed to make reasonable efforts toward reunification, and in particular, failed to accommodate respondents' potential disabilities as required by the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. Related to reasonable efforts, mother also contends that her attorney provided ineffective assistance by failing to raise the ADA issue in the trial court. Apart from the ADA, father also argues that the trial court erred by reducing his parenting time in September 2021 and eliminating all reasonable efforts in October 2021.

A. STANDARDS OF REVIEW

This Court reviews for clear error a trial court's decision whether reasonable efforts were made. In re Sanborn, 337 Mich.App. 252, 258; 976 N.W.2d 44 (2021).

However, unpreserved issues are reviewed for plain error affecting substantial rights. To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings. [Id. (quotation marks and citations omitted).]

"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). We review a trial court's factual findings, if any, for clear error, and questions of constitutional law are reviewed de novo. People v Armstrong, 490 Mich. 281, 289; 806 N.W.2d 676 (2011). When, as in this case, an evidentiary hearing has not been held, this Court's review is limited to mistakes apparent from the record. People v Thorne, 322 Mich.App. 340; 912 N.W.2d 560 (2017).

B. REASONABLE EFFORTS AND THE ADA

Under the probate code, the 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 N.W.2d 637 (2017). See also MCL 712A.19a(2). Reasonable efforts by the DHHS must also comply with the ADA, meaning that the DHHS must "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.

Absent reasonable modifications to the services or programs offered to a disabled parent, the Department has failed in its duty under the ADA to reasonably accommodate a disability. In turn, the Department has failed in its duty under the Probate Code to offer services designed to facilitate the child's return to his or her home, see MCL 712A.18f(3)(d), and has, therefore, failed in its duty to make reasonable efforts at reunification under MCL 712A.19a(2). As a result, we conclude 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. [Id.]

The DHHS "cannot accommodate a disability of which it is unaware." Id. at 87. However, the obligation to make accommodations under the ADA extends to providing reasonable accommodations to "a parent with a known or suspected intellectual, cognitive, or developmental impairment." In re Sanborn, 337 Mich.App. at 263 (quotation marks and citation omitted). The DHHS's affirmative objection to use reasonable efforts means that the DHHS cannot be "passive" in its approach to providing accommodations. In re Hicks/Brown, 500 Mich. at 87-88 (quotation marks and citation omitted). Whether the DHHS has taken reasonable steps in response to a known or suspected disability is a question for the trial court in the first instance. Id. at 88 n 6.

Absent reasonable efforts toward reunification, termination of parental rights will be considered premature. See In re Mason, 486 Mich. 142, 152; 782 N.W.2d 747 (2010); see also In re Newman, 189 Mich.App. 61, 66-70; 472 N.W.2d 38 (1991) (concluding that termination was improper when the respondents needed help-that had not been provided-learning how to maintain hygiene in their home). However, although the DHHS must "expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondents to participate in the...