in Re L T Hood Minor ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re L. T. HOOD, Minor. September 20, 2016
No. 331553
Ingham Circuit Court
Family Division
LC No. 15-000027-NA
Before: JANSEN, P.J., and K. F. KELLY and O’BRIEN, JJ.
PER CURIAM.
Respondent appeals as of right the order terminating her parental rights to her son, LTH,
pursuant to MCL 712A.19b(3)(a)(ii) (desertion), (c)(i) (conditions that led to adjudication
continue to exist), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood
of harm). We affirm.
Respondent argues that the order terminating her rights should be reversed because
petitioner, Department of Health and Human Services (DHHS), failed to make reasonable efforts
to reunify her and LTH by failing to maintain contact with her and provide her with a case
service plan that would accommodate her mental illness. We disagree.
Before petitioner may seek termination of parental rights, petitioner generally must make
reasonable efforts to reunite the parent and the child. See MCL 712A.18f; MCL 712A.19a(2); In
re Moss, 301 Mich. App. 76, 90-91; 836 NW2d 182 (2013). Specifically, petitioner must “make
reasonable efforts to rectify the conditions that caused the child’s removal by adopting a service
plan.” In re Fried, 266 Mich. App. 535, 542; 702 NW2d 192 (2005). Petitioner’s responsibility
to provide services is accompanied by a respondent’s responsibility to attend and benefit from
services. In re Frey, 297 Mich. App. 242, 248; 824 NW2d 569 (2012). “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 an Americans with
Disabilities Act (ADA), 42 USC 12101 et seq., disability, or “a known or suspected intellectual,
cognitive, or developmental impairment,” petitioner must make reasonable accommodations for
that parent. In re Hicks/Brown, ___ Mich App ___; ___ NW2d ___ (2016) (Docket No.
328870); slip op at 16, lv pending; Terry, 240 Mich. App. at 25-26. This Court in Hicks/Brown
explained that DHHS must
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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 equal to that of a nondisabled parent. If
it becomes clear that the parent will only be able to safely care for his or her
children in a supportive environment, the DHHS must search for potential
relatives or friends willing and able to provide a home for all. And if the DHHS
shirks these duties, the circuit court must order compliance. [Hicks/Brown, ___
Mich App at ___; slip op at 16.]
Accommodations made must be individualized or personally tailored to ensure that the
parent meaningfully benefits from services. Hicks/Brown, ___ Mich App at ___; slip op at 15.
Petitioner and the trial court bear the burden of identifying the need for and implementing
accommodations; these groups may not “sit back and wait for the parent to assert his or her right
to reasonable accommodations.” Id. at ___; slip op at 16. “The reasonableness of the efforts
provided” and accommodations made “affects the sufficiency of the evidence supporting the
grounds for termination.” Id. at ___; slip op at 6, 16. Reasonable efforts are not made if
petitioner “fails to take into account the parent[’]s limitations or disabilities and make any
reasonable accommodations.” Terry, 240 Mich. App. at 26. Termination may only be sought if
after reasonable accommodations are made “the parent fails to demonstrate sufficient benefit
such that he or she can safely parent the child.” Hicks/Brown, ___ Mich App at ___; slip op at
16. However, such arguments can be waived in the trial court, which is what occurred here.
A respondent must object or otherwise indicate that the services provided to her were
inadequate in order to preserve the issue of reasonable efforts. Frey, 297 Mich. App. at 247. If
arguing that petitioner failed to make reasonable accommodations in services to reunify the
family, a parent must have raised the need for accommodations in services offered “when the
court adopts a service plan.” Terry, 240 Mich. App. at 27. Failure to raise the issue “well before”
the dispositional hearing typically waives the issue. Id. at 26 n 5. The Terry Court held that “if a
parent believes that [petitioner] is unreasonably refusing to accommodate a disability, the parent
should claim a violation . . . under the ADA, either when a service plan is adopted or soon
afterward.” Id. at 26. The Hicks/Brown Court relaxed the timing requirement for such an
objection, explaining that the need for an ADA accommodation may not be apparent when a
service plan is adopted. Hicks/Brown, ___ Mich App at ___; slip op at 9-10. But Hicks/Brown
retained the requirement for some objection in the trial court to preserve the issue for appeal and
avoid waiver. Id. at ___; slip op at 10. Here, respondent admits that she never raised the issue
by objecting to the services offered or accommodations given under the ADA. Accordingly, the
issue is unpreserved and waived.
Furthermore, even assuming that respondent did not waive the issue, and assuming that
respondent’s mental illness constituted a disability under the ADA, we conclude that DHHS
made reasonable efforts to reunify respondent and LTH. We first note that reasonable efforts
were not required in this case because respondent’s parental rights to several of the child’s
siblings were involuntarily terminated. See MCL 712A.19a(2)(c). However, the court
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nevertheless required that DHHS make reasonable efforts to reunify respondent and the minor
child, and the record establishes that DHHS made reasonable efforts toward reunification.
Respondent’s caseworkers testified that they attempted to contact respondent on
numerous occasions to set up services, but respondent either could not be located or refused to
participate in services when DHHS was able to reach her. During one of few telephone
conversations, respondent’s caseworker attempted to ask questions regarding respondent’s
barriers to reunification, and respondent hung up the phone. Respondent also met with a
caseworker in order to set up services, discuss parenting times, and obtain a social history, but
the meeting only lasted five minutes because respondent refused to answer questions relevant to
her services and left the restaurant. Respondent’s caseworkers also attempted to set up parenting
time, but respondent cancelled the first visit and was difficult to reach after cancelling the first
visit. During a telephone conversation several months after the in-person meeting, respondent’s
caseworker attempted to discuss respondent’s status, but respondent’s answers were hard to
follow, respondent kept changing the subject, and respondent ended the telephone conversation.
Respondent consistently failed to maintain contact with her caseworkers in spite of their
efforts to locate respondent, make contact with her, and establish services. Respondent
explained during her testimony that she did not maintain contact with DHHS because her lawyer
advised her not to contact her caseworkers in light of an ongoing lawsuit that respondent had
against DHHS. This indicates that respondent’s failure to contact her caseworkers was due to an
ongoing lawsuit, rather than her mental illness. Respondent also demonstrated an unwillingness
to participate in any provided services when she told her caseworker that she did not need mental
health services during a telephone conversation a few months before termination. Although
respondent contends on appeal that the caseworkers did not schedule a psychological evaluation
for her in order to accommodate her mental illness, the record indicates that respondent’s
caseworkers could not even review the initial service plan with respondent because they could
not locate respondent for much of the duration of the case, and when they did locate respondent,
she either refused to speak with her caseworkers or expressed her refusal to participate in mental
health services. Therefore, the testimony indicates that scheduling mental health appointments
for respondent would have been futile in light of respondent’s refusal to acknowledge her mental
health condition or participate in services. It is unclear what additional efforts and
accommodations DHHS could have made in this case because respondent was not willing to
participate in and benefit from services. Accordingly, we conclude that DHHS made reasonable
efforts to rectify respondent’s mental health conditions and reunify her with the minor child, but
respondent was unwilling to participate in and benefit from services. See Frey, 297 Mich. App. at
248.1
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We note that respondent does not challenge the statutory grounds for termination or the trial
court’s best-interest determination, and our review of the record reveals no error in the trial
court’s decision with regard to the statutory grounds for termination or its decision that
termination was in the minor child’s best interests.
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Affirmed.
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
/s/ Colleen A. O’Brien
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