in Re Jsm Grasty Minor ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re J. S. M. GRASTY, Minor. November 9, 2017
No. 338681
Lapeer Circuit Court
Family Division
LC No. 16-012325-NA
Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ.
PER CURIAM.
The circuit court terminated respondent-mother’s parental rights to her 13-month-old
daughter, JG, based on her failure to follow through with and benefit from services. She
challenges the adequacy of the services provided and contends that the court should have
adjourned the termination hearing to allow her additional time to benefit. Respondent also
argues that insufficient evidence supported the court’s termination decision and that termination
of her parental rights was not in the best interests of her daughter. We affirm.
I. BACKGROUND
JG was born on April 1, 2016. Respondent was then homeless and a distant relative, Lisa
Mardlin, offered mother and child temporary sanctuary in her Lapeer home. Approximately 10
days later, respondent was arrested and jailed in Sanilac County on charges of knowingly
purchasing ephedrine/pseudoephedrine to make methamphetamine. Child Protective Services
(CPS) intervened and respondent requested that JG remain in Mardlin’s care.
On April 14, respondent entered a plea of admission to allow the court to exercise
jurisdiction over the child. Respondent admitted to a history of substance abuse, mental health
issues, prior terminations of her parental rights to four other children, lack of suitable housing
and income, and the existence of pending criminal matters. The court ordered respondent to
comply with and benefit from a treatment plan designed to address the barriers to reunification.
Foster care worker Mary Bukosky indicated that after respondent was released from jail, she
would be offered services that included housing assistance, random drug screens,1 parenting
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Respondent consistently appeared for screens and remained drug-free throughout the
proceedings.
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classes, parenting time, and a psychological evaluation and services related to the
recommendations made therein. Due to respondent’s known mental health issues, respondent
would also be referred for mental health counseling.
Respondent was released from jail on July 10. She then moved into her mother’s home
in Port Huron, St. Clair County. The Department of Health and Human Services (DHHS)
referred respondent to counseling, but she requested that she be permitted to independently
pursue counseling at the Professional Counseling Center (PCC) because she had received
services there before and because it was close to her mother’s home. Respondent also promised
to seek psychological and psychiatric assistance through Community Mental Health (CMH).
Respondent’s residence in a different county than her child made the delivery of services
difficult, as did her failure to timely apply for Medicaid as directed by the caseworker.
Respondent ultimately attended eight out of a recommended 12 counseling sessions with a
therapist at PCC. The therapist found respondent anxious, angry and depressed. She focused her
anger on her perception that she had been wronged by “the system” and repeatedly asserted that
she did not require mental health treatment. Respondent finally acknowledged that she may need
medication to overcome her issues and the therapist gave her a list of psychiatrists to choose
from. Respondent failed to follow through. The therapist concluded that respondent made no
progress during treatment.
A PCC family specialist, Jessica Leenkneght, provided 10 hours of intensive in-home
services each month and assisted respondent in her unsuccessful efforts to find employment and
a place to live. Respondent’s job hunt was stymied by her lack of a driver’s license and failure to
follow through in securing a copy of her birth certificate. Leenkneght opined that respondent’s
prior felony conviction was also an obstacle.
The DHHS granted 77 supervised parenting time sessions in Lapeer. Respondent
reported transportation issues and attended only 44 sessions and was late for 13. The DHHS
offered to provide less frequent but longer sessions so respondent would not need to travel as
often, but she declined. The visits respondent attended went well and respondent adequately
addressed young JG’s needs.
Respondent was arrested again on April 6, 2017 and was sentenced to serve 90 days in
jail. On April 28, the DHHS filed a supplemental petition seeking termination of respondent’s
parental rights. Respondent was transported from jail for a two-day termination hearing.
Bukosky, respondent’s therapist, and Leenkneght all testified at the hearing. In addition,
Mardlin testified that she has been friends with respondent for 12 years. During that time,
respondent has not worked, other than providing housekeeping services at a single home.
Mardlin did not believe respondent could maintain employment or could ever provide a home for
JG. She expressed her desire to adopt the baby.
Bukosky testified that respondent was unable to independently provide a home for her
daughter. She also could not provide a home with her parents. Respondent’s mother and
stepfather indicated that they would not allow respondent and her child to live in their home and
they were no longer willing to provide respondent any assistance.
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Finally, on the second day of the termination hearing, respondent admitted that she had
mental health issues that needed to be addressed before she could regain custody of JG. She
promised that she would contact CMH upon her return to the jail and would arrange for services
to begin upon her release. Given an additional three months, respondent testified, she could
show benefit from mental health services.
The circuit court terminated respondent’s rights, finding that despite the provision of 12
months of services, respondent still lacked suitable housing and employment, and had not
adequately addressed her mental health issues. Additional time would not change the outcome.
Respondent repeatedly told the caseworker that she was familiar with the system and services,
even selecting her own service provider. Respondent knew what was expected of her, but she
demonstrated a lack of motivation and therefore could not benefit from additional services.
Respondent now appeals.
II. REASONABLE EFFORTS
Respondent first contends that the DHHS failed to make reasonable efforts to reunify her
family because it failed to reasonably accommodate her mental health issues and failed to
implement services properly.
Before a court may contemplate termination of a parent’s rights, the DHHS must make
reasonable efforts to reunite the family. MCL 712A.19a(2). “The adequacy of the petitioner’s
efforts to provide services may bear on whether there is sufficient evidence to terminate a
parent’s rights.” In re Rood, 483 Mich. 73, 89; 763 NW2d 587 (2009). However, a respondent
also has a responsibility to participate in services offered by petitioner. In re Frey, 297 Mich
App 242, 248; 824 NW2d 569 (2012).
In In re Hicks/Brown, 500 Mich. 79; 893 NW2d 637 (2017), the Michigan Supreme Court
recently considered whether the DHHS made reasonable efforts to reunify an intellectually
disabled parent with her children. The Court considered obligations arising under both the
Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the Michigan Probate Code,
MCL 712A.18f(3)(d). Under the Probate Code, “the Department has an affirmative duty to
make reasonable efforts to reunify a family before seeking termination of parental rights.”
Hicks/Brown, 500 Mich. at 85. The ADA provides that “ ‘no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.’ ” Id. at 86, quoting 42 USC 12132. The DHHS neglects its
duty under the ADA to reasonably accommodate a disability when it fails to implement
reasonable modifications to services or programs offered to a disabled parent, the Court stated.
Id. Similarly, “efforts at reunification cannot be reasonable under the Probate Code if the
[DHHS] has failed to modify its standard procedures in ways that are reasonably necessary to
accommodate a disability under the ADA.” Id.
There is no record indication in this case that respondent required or was entitled to
accommodations in her service plan. Psychologist Thomas Seilheimer conducted respondent’s
psychological evaluation on September 1, 2016. Respondent self-reported “a non-specified
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special education certification” during her school career and that she dropped out after the 9th
grade. She also indicated that she was diagnosed with ADHD, depression and anxiety as a child.
Over the years, respondent had tried Lexapro, Zoloft, Xanax, Ativan and Ritalin, but these
“deliver[ed] marginal benefit.” Seilheimer determined that respondent likely suffers from a
mood and personality disorder. He recommended “[b]ehavioral health counseling . . . focus[ed]
on depression and underlying cannabis use and personality issues.” Seilheimer did not
independently note any cognitive impairment that would entitle respondent to special assistance
in following her case service plan. Respondent provides no legal support for any claim that her
mood and personality disorders fall within the definition of a disability under the ADA.
Respondent further contends that the DHHS hindered her progress by making untimely
referrals for a psychological evaluation and counseling, and in failing to make a psychiatric
referral. These claims are without merit. The DHHS referred respondent for services as soon as
possible. The referral was initially delayed because respondent was incarcerated for purchasing
methamphetamine ingredients. Services were further delayed because respondent waited three
months to follow through on the caseworker’s direction to apply for Medicaid despite receiving
repeated reminders. The provision of services was complicated because respondent requested
psychological services from an agency with which the DHHS did not have a standing contract.
And respondent’s therapist did recommend a psychiatric evaluation and gave respondent the
names of several doctors; respondent simply failed to follow through.
Respondent contends that the DHHS made insufficient efforts to assist her in securing
suitable housing and employment. Leenkneght provided these very services. Over a period of
seven months, she helped respondent fill out applications and drove her to interviews. Despite
these efforts, respondent was unable to secure gainful employment. Leenkneght surmised that
respondent’s lack of any work experience and prior felony conviction affected her employability.
But respondent also failed to follow through on acquiring copies of her birth certificate and
identification that were required for some of the housing and employment applications. Finally,
had respondent agreed to housing in Lapeer County, the DHHS would have had more resources
available to assist her. Instead, respondent chose to stay in St. Clair County, residing briefly with
her mother, then in a homeless shelter, and finally with a male friend.
Respondent complains that the DHHS did not assist her with transportation issues.
Again, this assertion is unsupported by the record. Respondent was 35 but never obtained a
driver’s license. She had no independent transportation, but chose to live in a different county
than her child. The DHHS attempted to move visitation closer to respondent. As a prerequisite
to this move, the DHHS requested that respondent meet with a pastor at a church willing to host
parenting time. Respondent never took this step. In an effort to reduce the number of trips to
Lapeer County while maintaining the hours afforded to respondent, the DHHS offered expanded
parenting time hours on fewer days. Respondent declined. Ultimately, Leenkneght assisted
respondent with some of her transportation needs and respondent told Bukosky that she had
friends and family willing to help her with transportation and that she could also take the train.
The DHHS’s efforts did not fall short.
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III. STATUTORY GROUNDS FOR TERMINATION
Respondent argues that the DHHS failed to present sufficient evidence to support the
statutory grounds for termination. Pursuant to MCL 712A.19b(3), a circuit court “may terminate
a parent’s parental rights to a child if the court finds, by clear and convincing evidence” that at
least one statutory ground has been proven by the DHHS. MCR 3.977(A)(3); In re Trejo, 462
Mich. 341, 350; 612 NW2d 407 (2000). When termination is sought in a supplemental petition,
the court’s decision must be based on legally admissible evidence. In re DMK, 289 Mich. App.
246, 257; 796 NW2d 129 (2010). We review a circuit court’s factual finding that a statutory
termination ground has been established for clear error. Rood, 483 Mich. at 90-91. “A finding of
fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake
has been committed, giving due regard to the trial court’s special opportunity to observe the
witnesses.” In re Moss, 301 Mich. App. 76, 80; 836 NW2d 182 (2013) (quotation marks and
citation omitted). “Clear error signifies a decision that strikes us as more than just maybe or
probably wrong.” In re Williams, 286 Mich. App. 253, 271; 779 NW2d 286 (2009).
The court terminated respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i),
(g), and (j), which permit termination under the following conditions:
(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:
(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.
* * *
(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 DHHS removed 11-day-old JG from respondent’s care when respondent was
arrested and incarcerated. CPS and DHHS were familiar with respondent as her older four
children had all been court wards in the past. Respondent had voluntarily relinquished her
parental rights to three of the children and the court involuntarily terminated her rights to the
fourth. The agencies were therefore already on notice of respondent’s untreated mental health
issues. At the time of her arrest, respondent was essentially homeless and had never been
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employed. These same conditions made it impossible for respondent to provide proper care and
custody for JG.
Respondent did not rectify these conditions by the time of the termination hearing.
Respondent’s therapist saw no progress as respondent refused to acknowledge that she needed
treatment and did not follow through on the therapist’s recommendation that she see a
psychiatrist. Despite significant assistance, respondent also still had not found employment or
housing. Given respondent’s lackadaisical approach, it was unlikely that respondent would be
able to rectify these conditions within a reasonable time. Accordingly, the circuit court’s
determination that termination was supportable under factors (c)(i) and (g) was not erroneous.
There is no evidence that JG was ever in danger in respondent’s care and we decline to
assume such danger on the record before us. However, the DHHS need only establish one
ground to support termination and it supported two. As such, we discern no ground for reversal.
IV. BEST INTERESTS
Respondent asserts that the circuit court erred when it found that termination of her
parental rights was in JG’s best interests. “Once a statutory ground for termination has been
proven, the trial court must find that termination is in the child’s best interests before it can
terminate parental rights.” In re Olive/Metts, 297 Mich. App. 35, 40; 823 NW2d 144 (2012),
citing MCL 712A.19b(5). “[W]hether termination of parental rights is in the best interests of the
child must be proven by a preponderance of the evidence.” Moss, 301 Mich. App. at 90. The
lower court should weigh all the evidence available to it in determining the child’s best interests.
Trejo, 462 Mich. at 356-357. Relevant factors include “the child’s bond to the parent, the
parent’s parenting ability, [and] the child’s need for permanency, stability, and finality. . . .”
Olive/Metts, 297 Mich. App. at 41-42 (citations omitted). “The trial court may also consider . . .
the parent’s compliance with his or her case service plan, the parent’s visitation history with the
child, [and] the children’s well-being while in care. . . .” In re White, 303 Mich. App. 701, 714;
846 NW2d 61 (2014). The advantages of the child’s foster placement over placement with the
parent are a relevant consideration, In re Foster, 285 Mich. App. 630, 634-635; 776 NW2d 415
(2009), as well as the length of time the child has been in care, In re Payne/Pumphrey/Fortson,
311 Mich. App. 49, 64; 874 NW2d 205 (2015). “With respect to the trial court’s best-interests
determination, we place our focus on the child rather than the parent.” In re Schadler, 315 Mich
App 406, 411; 890 NW2d 676 (2016).
JG has been in care since she was 11 days old and has lived in the same home with her
foster parents since she was released from the hospital. As a result, JG has no real bond with her
mother. By all accounts, JG is well-adjusted, happy, and loved by her foster family and her
foster parents wish to adopt her. Respondent only inconsistently visited with her daughter and
never progressed to unsupervised parenting time. She also gained no benefit from her year of
services. At the end of the year, respondent was still unable to properly parent her child or
adequately provide for her child’s needs. The record more than adequately supports the circuit
court’s best-interest determination.
Respondent suggests that the circuit court should have considered a guardianship in lieu
of terminating her parental rights. However, JG was only 13 months old and a guardianship
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would not provide the permanency and finality necessary to foster her continued growth and
development.
V. ADJOURNMENT
During respondent’s testimony at the termination hearing, she claimed to have an
epiphany. Respondent suddenly realized that her mental health issues required treatment and
claimed that if she buckled down for three months, she would be able to care for her daughter.
Based on this statement, respondent contends that the circuit court should have adjourned the
termination hearing to give her additional time to comply with her service plan. Respondent
further emphasizes that her services were delayed by three months because she was incarcerated
at the beginning of the proceedings.
“Adjournments of trials or hearings in child protective proceedings should be granted
only (1) for good cause, (2) after taking into consideration the best interests of the child, and (3)
for as short a period of time as necessary.” MCR 3.923(G). “[I]n order for a trial court to find
good cause for an adjournment, ‘a legally sufficient or substantial reason’ must first be shown.”
In re Utrera, 281 Mich. App. 1, 11; 761 NW2d 253 (2008) (citation omitted).
Respondent never requested an adjournment. As such, she never presented a legally
sufficient reason to grant an adjournment. Even if she had, the cited reasons would not have
supported her request. The delay in starting respondent’s services was of her own making. Her
own actions led to her incarceration. Thereafter, respondent failed to apply for Medicaid despite
being thrice asked to do so. Moreover, respondent did not benefit from nine months of services
and only grasped the importance of her failure to comply with her service plan as she sat in court
for the termination hearing. It was unlikely that an additional three months would have led to the
necessary improvements.
We affirm.
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher
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