in Re morford/ellison-morford Minors ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re MORFORD/ELLISON-MORFORD, Minors. December 22, 2016
No. 332541
Monroe Circuit Court
Family Division
LC No. 14-023167-NA
Before: SERVITTO, P.J., and STEPHENS and RONAYNE KRAUSE, JJ.
PER CURIAM.
Respondent mother appeals as of right the order terminating her parental rights to her
minor children, AM and GE-M, pursuant to MCL 712A.19b(3)(c)(i), (ii) [conditions leading to
adjudication continue to exist], MCL 712A.19b(3)(g) [failure to provide proper care and
custody], and MCL 712A.19b(3)(j) [potential harm to children if returned to parent]. We affirm.
Respondent suffers from cerebral palsy, which causes her challenges in mobility,
strength, and communication and necessitates a wheelchair. She is married to, but separated
from, the biological father of the children, who released his parental rights to the children during
the pendency of this proceeding. Respondent contends that petitioner, the Department of Health
and Human Services (DHHS) did not provide her with meaningful, reasonable, and appropriate
efforts at and services for reunification with the children; in particular, DHHS failed to make the
requisite reasonable accommodations for her disabilities required by the Americans With
Disabilities Act (ADA), 42 USC 12101 et seq. Respondent argues that termination of her
parental rights therefore was, at least, premature. We find that although respondent might have
been better served by additional or different efforts, the services and efforts provided by DHHS
were reasonable in context and under the available circumstances.
Absent certain exceptional and inapplicable circumstances, termination of a parent’s right
to be a parent to their child may not be considered unless DHHS has made “reasonable efforts”
to reunite the child and the parent and maintain the parent’s care of the child. In re Hicks/Brown,
___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 328870); slip op at 6, app pending
499 Mich 982 (2016). Exactly how thorough and extensive those efforts must be to be
considered “reasonable” is not defined, but it is established that “[t]he reasonableness of the
efforts provided affects the sufficiency of the evidence supporting the grounds for termination.”
Id. Reasonableness must be evaluated strictly on a case-by-case basis and tailored to the
particular parent and the nature of that parent’s own unique disabilities and challenges. Id. at
___, slip op at 11. However, such efforts need not be infinite or extend to services that are
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simply not available, and as with any other parent, the child’s needs ultimately prevail if the
parent cannot ultimately carry out a minimal range of parental responsibilities. See In re Terry,
240 Mich App 14, 27-28; 610 NW2d 563 (2000). We think it inescapable that the efforts to
which a parent with disabilities is entitled be analogized to the trial to which a criminal defendant
is entitled: fair, not necessarily perfect, which after all is an impossible standard. People v
Miller, 482 Mich 540, 559; 759 NW2d 850 (2008); People v Bigge, 288 Mich 417, 435; 285 NW
5 (1939); McDonough Power Equip, Inc v Greenwood, 464 US 548, 553; 104 S Ct 845; 78 L Ed
2d 663 (1984).
More specifically to parents with cognitive challenges, reasonable efforts will generally
recognize from the outset and thus plan for ongoing support and services in a connected or
mutually dependent manner to address the needs of a respondent “rather than forcing a parent to
demonstrate the ability to independently parent a child.” In re Hicks/Brown, ___ Mich App at
___; slip op at 11. In other words, the coordination of available services to support a disabled
parent is paramount. However, as noted, a balance must be struck between meeting the
particular needs of the child and affording the parent functioning with a disability sufficient time
to attain designated skills and demonstrate progress. Id. at ___; slip op at 12.
Clearly, respondent needed individualized and specialized services due to her physical,
cognitive, and communication challenges. DHHS was aware of respondent’s limitations based
on their historical interactions and the provision of services to respondent even before the birth
of her first child, as well as the completion of a psychological evaluation at the onset of the
proceedings. There can be no dispute that DHHS provided extensive services involving
counseling, parenting education, independent living services, infant mental health services, and
innumerable others for respondent’s participation. We would not take seriously any contention
that DHHS provided insufficient efforts, per se, and indeed respondent makes no such allegation.
Rather, respondent argues that the efforts by DHHS were inappropriate, insofar as they were
simultaneously not particularly tailored to her particular needs and instead emphasized the
volume of services irrespective of their relevance.
We think there is some merit to respondent’s contentions. Respondent’s counsel initially
questioned the seemingly overwhelming list of services in which respondent was required to
participate, to which DHHS simply responded that respondent “has time to take care of all those
services.” An occupational therapy evaluation occurred one year after the first child’s removal
from respondent’s home, and it recommended adaptive equipment and alterations to
respondent’s apartment and the use of specialized child care equipment, none of which were
apparently pursued. Respondent’s difficulties with speech were acknowledged, but they were
not targeted, and alternative methods to obtain the verbal stimulation needed by the children
were not explored. We find DHHS’s concerns about respondent’s parents serving as
respondent’s only support system reasonable considering the parents’ chaotic past and a variety
of accusations that had been made against them; likewise DHHS’s characterization of
respondent’s frequent movement between her parents’ home and her own apartment as unstable
and inconsistent. However, respondent and her parents did follow the recommendation by
DHHS of participating in family therapy, and asserted that they attained a better level of
communication and more respectful relationship; DHHS apparently never regarded respondent’s
parents as even possibly serving as an adequate support system.
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DHHS indicated that accommodations for respondent included: (a) the provision of a
mat for her use during visitation to allow respondent to be on the floor without significant
discomfort, (b) a playpen for use to help monitor one child when respondent was occupied with
her other son, (c) a changing pad to use on the floor for diapering, (d) the movement of objects in
the room for visitation to permit better wheelchair accessibility and (e) the extended duration of
individual visitation sessions, but with no overall increase in the total amount of time afforded to
respondent with her children. This seems inadequate given the respondent’s identified needs.
Although recognizing respondent’s need for accommodations due to her physical limitations,
there appear to be no consideration for the cognitive deficiencies documented for respondent in
the provision of services. Indeed, two individuals, including the occupational therapist, opined
that Wrap Around Services were confusing. Numerous service providers described respondent
as difficult to work with and resistive to instruction, but the evidence suggests that this may not
have been entirely respondent’s own fault.
Nevertheless, respondent provides little more than speculation that more appropriate
services in fact existed or that respondent would have benefited from them if they did. For
example, respondent contends that she benefited from working with Jill Caruso, but Caruso
indicated that no additional or different services were then available at her agency to assist
respondent. Respondent complains that DHHS made no efforts to search for potential relatives
or friends other than respondent’s parents, but offers no argument to suggest that any other
relatives or friends existed or could have been found. Furthermore, respondent’s emphasis on
DHHS’s concern with “what she must do to earn her children back” only goes so far. “While the
[DHHS] has a responsibility to expend reasonable efforts to provide services to secure
reunification, there exists a commensurate responsibility on the part of respondents to participate
in the services that are offered.” In re Laster, 303 Mich App 485, 495; 845 NW2d 540 (2013)
(citation omitted). A parent’s rights necessarily must be balanced against the needs of the child;
if the parent simply cannot be remediated to the point of being able to safely and competently
care for the child within a reasonable time, DHHS is not obligated to keep trying forever while
the child languishes. In re Hicks/Brown, ___ Mich App at ___, slip op at 16.
Realistically, despite the provision of specialized services coupled with an adaptation of
their method of delivery, it is highly unlikely that respondent will be capable of demonstrating
that she can effectively parent her children and assure their safety. In reaching its decision to
terminate respondent’s parental rights, the trial court reviewed evidence and testimony pertaining
to the services provided to respondent and her response to those services. In reviewing the
psychological evaluations done with respondent, concerns were noted regarding her
distractibility and short attention span, in addition to impairments in her logical reasoning and
social judgment. Respondent’s variable, complex and difficult relationship with her parents was
juxtaposed against respondent’s identification of her parents as her support system in conjunction
with her concurrent denial of her need for assistance in parenting. The psychological evaluator
opined that respondent’s “current psychological adjustment appears to be unstable,” and that her
relationship with the children was focused on her needs rather than theirs (“While she maintained
that she loves her children and wants to regain custody of them, it is noted that she stated she
wanted children ‘so I would feel loved.’”). While the content of the independent psychological
evaluation completed at respondent’s behest was somewhat less vociferous regarding her
deficiencies and future parenting potential, it too noted concerns pertaining to her “[f]alse beliefs
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related to independent infant childcare,” and the lack of “realistic expectations or plan regarding
her infant sons’ safety and care decisions.”
The trial court discussed respondent’s prolonged history with both Child Protective
Services (CPS) and Adult Protective Services (APS), with respondent having been the recipient
of services since 2006 and the lack of compliance or follow through by respondent. Despite the
provision of services, the trial court noted ongoing concerns throughout the proceedings with
respondent’s ability to demonstrate or maintain adequate hygiene or the cleanliness of her
environment and the absence of routine compliance with safety regimens, coupled with concerns
pertaining to her financial and housing stability. Despite the provision of services preceding the
initiation of these petitions, evidence was adduced that respondent continued to struggle with her
ability to provide basic care for the minor children or to successfully attend to both children’s
divergent needs simultaneously, which raised credible safety concerns. Although respondent’s
love for her children was undisputed, descriptions of the children’s reactions when with
respondent indicated the lack of reciprocity of any bond or deep affection on their part. In
addition, respondent often failed to recognize physical cues by the children indicating a routine
want or need such as hunger, as well as resistance to evaluating the children and providing
services to them to address concerns such as the delayed development of verbal communication
skills.
In a related discussion, the trial court expressed concern regarding respondent’s
frequently obstreperous behavior and resistance to recommendations provided during training
sessions. A specific issue noted by the trial court was respondent’s inability to modulate her
response by yelling when disagreements arose rather than engaging in a discussion.
Respondent’s compliance in signing requested releases was variable. Although respondent
acknowledged her need for assistance in completing tasks with the children she would
concurrently complain and indicate resentment with the level or degree of assistance provided.
Respondent routinely demonstrated poor judgment in identifying people only recently met as
viable support systems for her despite having little knowledge of their backgrounds or abilities,
which resulted on more than one occasion with respondent being unduly taken advantage of by
these individuals. Similarly, her relationship with her parents was frequently chaotic punctuated
by brief periods of amiability. She has resided intermittently with her parents with varying levels
of success at achieving and maintaining peaceful cohabitation, resulting in reasonable concerns
pertaining to the viability of the maternal grandparents functioning as respondent’s primary
support system on a prolonged basis, compounded by their ages and own history of neglectful or
violent conduct. The absence of any alternative relatives for placement significantly limited the
options available for the minor children.
The trial court found respondent to often be incredible given inconsistencies in her
recognition of the need for assistance juxtaposed with assertions of her ability to function
independently. Ultimately, the trial court found that the services provided to respondent and the
minor children “have exceeded what is reasonable; attempts have been made and opportunities
have been offered to benefit the mother in every facet of living, time and time again, even when
services have been refused by her and re-offered to her, even pre-dating the Petition.” The trial
court noted respondent’s lack of cooperation in submitting “financial proofs” deemed relevant
“to determine how she would ever provide the children with a stable and independent home, with
working utilities/food.” The trial court characterized respondent as being offered and provided a
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variety of services, yet “refus[ing] to accept support and services provided to her to eliminate the
barriers to reunification.” The trial court expressed doubt that the progress demonstrated by the
children while in foster care could be maintained or continued if they were returned to
respondent based on respondent’s resistance or refusal to engage in recommended “parenting
techniques,” her “disavowal of special needs and alternative education, and [the] inability to
provide for basic health/safety/hygiene needs.”
Hence, while additional or different efforts could have occurred regarding the provision
of services to respondent, it cannot be determined that the services that were provided did not
comprise a reasonable effort to attain the initial goal of reunification. Reasonable efforts cannot
be equated to perfect or all-encompassing efforts. In reality, the options and services that are
available are constricted and cannot possibly address every possible need that may arise for a
particular parent. While the efforts at reunification undertaken in this matter were imperfect, the
trial court correctly concluded that reasonable efforts had been expended by DHHS in seeking to
achieve reunification of respondent and the minor children.
Respondent next contends the trial court erred in finding the statutory grounds of MCL
712A.19b(3)(c) were established and justified the termination of her parental rights. Respondent
argues that the conditions that led to the adjudication had been addressed as domestic violence
was no longer an issue given her prolonged physical separation from her husband and the
improvement in the strained relationship between respondent and her parents. Termination was
also not justified under MCL 712a.19b(3)(g) and (j) given respondent’s progress on her case
service plan and improvement in numerous areas of alleged deficiency. The failure to provide
reasonable assistance and accommodations impeded respondent’s progress on the referenced
goals. Respondent challenges the failure of DHHS to permit and facilitate the use of her parents
as a support system to provide respondent with the assistance necessary to parent her children.
“To terminate parental rights, a trial court must find that at least one of the statutory
grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing
evidence.” In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). “This Court reviews for
clear error the trial court’s factual findings and ultimate determinations on the statutory grounds
for termination. The trial court’s factual findings are clearly erroneous if the evidence supports
them, but we are definitely and firmly convinced that it made a mistake.” In re White, 303 Mich
App 701, 709-710; 846 NW2d 61 (2014). “[T]his Court accords deference to the special
opportunity of the trial court to judge the credibility of the witnesses.” In re Fried, 266 Mich
App 535, 541; 702 NW2d 192 (2005); MCR 2.613(C). “Whether the ADA has any effect on
termination of parental rights proceedings . . . presents a question of law that [this Court]
review[s] de novo.” In re Terry, 240 Mich App at 23-24.
To properly preserve an issue for appellate review, a parent must raise the issue before
the trial court. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). Respondent failed to
challenge the statutory grounds cited by the trial court in support of termination of her parental
rights, the issue is not properly preserved for appellate review. The review of unpreserved issues
is “limited to determining whether a plain error occurred that affected substantial rights.” In re
Egbert R Smith Trust, 274 Mich App 283, 285; 731 NW2d 810 (2007), aff’d 480 Mich 19(2008).
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In accordance with MCL 712A.19b(3)(c)(i), a trial court may terminate parental rights if
“[t]he 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.” MCL 712A.19b(3)(c)(ii) further provides:
Other conditions exist that cause the child to come within the court’s jurisdiction,
the parent has received recommendations to rectify those conditions, the
conditions have not been rectified by the parent after the parent has received
notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that the conditions will be
rectified within a reasonable time considering the child’s age.
The trial court deemed “both prongs” of MCL 712A.19b(3)(c) to have been established as
evidenced by “numerous past CPS referrals against her, domestic violence in her home, inability
to provide safe housing, inability to have proper supports, lack of parent-child bond, and multiple
services having been provided to her in order for her to keep the children in the home.” The trial
court further explained:
While Respondent Mother has maintained an apartment for several months and
while the imminence of trial has quelled the tension between her and her parents,
she has not provided a safe/healthy/sanitary home, improved the parent-child
bond, sustained viable supports nor benefitted from a multitude of services
provided to her throughout the years. She does not have the psychological
wherewithal, means or ability to provide permanence and stability to her children,
even though this court believes she has a love/affection for them. Respondent
mother either refuses or cannot accept suggestions for improving her parenting,
bond or tending to the special needs of both of her children. Barriers to
reunification have been and continue to be hygiene, supervision/circumspection,
bonding, attending to the children’s basic and special needs, maintaining
wheelchair safety, yelling at her family and other helpers, maintaining financial
stability, and taking care of herself.
Respondent correctly points out that one of the issues that led to the adjudication, the
incidence of domestic violence involving herself and her husband, was rectified by his voluntary
removal from the family unit. Furthermore, being a victim of domestic violence is not a
permissible basis for termination of parental rights in any event. In re Plump, 294 Mich App
270, 273; 817 NW2d 119 (2011). However, the remaining concerns involving respondent’s
ability to provide a safe and functional home for the children and to satisfactorily meet their
basic daily needs have not been eliminated despite the significant lapse of time since removal of
the children from respondent’s care. As such, evidentiary support establishing the statutory
grounds for termination of respondent’s parental rights under MCL 712A.19b(3)(c) exists.
Although only one statutory ground for termination must be proven by clear and
convincing evidence to terminate parental rights, MCL 712A.19b(3); In re Ellis, 294 Mich App
at 32 (“Only one statutory ground need be established . . . even if the court erroneously found
sufficient evidence under other statutory grounds.”), the remaining statutory provisions cited by
the trial court to justify termination of respondent’s parental rights will be addressed.
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The trial court also found termination of respondent’s parental rights was justified
pursuant to MCL 712A.19b(3)(g), which provides:
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.
The trial court found respondent to be “emotionally/psychologically unstable” based on
evaluations conducted and in conjunction with her behavior, which included verbal outbursts and
arguments with service providers, friends and family members. As such, the trial court found,
“[w]ithout regard to intent, the Respondent Mother does not have the capacity to provide proper
care and custody even with assistance.” In support of its finding the trial court again referenced
respondent’s: (a) failure to provide a safe and clean residence for the minor children, (b) the lack
of a demonstrable bond or improvement in the parent-child bond, (c) the absence or maintenance
of a viable support system, and (d) the failure to demonstrate a tangible benefit from the services
provided over a prolonged time period. Despite her love for the children, the trial court believed
respondent lacked the psychological and emotional stability necessary to parent the children and
provide them with permanence. Of concern to the trial court was respondent’s resistance to or
outright rejection of various suggestions to assist in the improvement of her parental skills.
Specifically, the trial court identified the ongoing “[b]arriers to reunification” to include
issues pertaining to “hygiene, supervision/circumspection, bonding, attending to the children’s
basic and special needs, maintaining wheelchair safety, yelling at her family and other helpers,
maintaining financial stability, and taking care of herself.” The trial court concluded that despite
the time provided to correct the various deficiencies and concerns, respondent had not and was
not capable of demonstrating sufficient improvement in her abilities within the foreseeable future
to warrant a further delay in terminating her parental rights. Even with the provision of various
services and assistance to respondent, the trial court found that “the children have been harmed
and their health and safety needs placed in jeopardy.” As such, the trial court did not err in
finding the statutory grounds of MCL 712A.19b(3)(g) had been established.
Finally, the trial court also justified the termination of respondent’s parental rights under
MCL 712A.19b(3)(j), which states: “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 trial court explained its finding on this statutory ground as follows:
[T]here is no evidence to suggest the reasonable likelihood of permanence being
afforded [the children] by Respondent Mother. Most significant is the reasonable
likelihood of harm to the children if returned to Respondent’s care considering her
lack of parenting ability and emotional/psychological issues which this court
firmly believes will not achieve permanency with Respondent and the children
any time soon.
The trial court further cited to the emotional bond that had been established between the children
and foster family, suggesting any dissolution of that bond “would result in serious emotional
harm to them both.” The trial court reiterated its various findings under the alternative statutory
provisions cited in its substantiation of the decision to terminate respondent’s parental rights. As
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such, the statutory grounds for termination of respondent’s parental rights were established under
MCL 712A.19b(3)(j).
Affirmed.
/s/ Deborah A. Servitto
/s/ Cynthia Diane Stephens
/s/ Amy Ronayne Krause
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