in Re Redmond Minor ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re REDMOND, Minor. October 8, 2019
No. 348560
Oakland Circuit Court
Family Division
LC No. 2018-860243-NA
Before: RIORDAN, P.J., and K. F. KELLY and CAMERON, JJ.
PER CURIAM.
Respondent-mother appeals the order terminating her parental rights to her minor child
under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), and (j)
(reasonable likelihood that the child will be harmed if returned to the parent). We affirm.
I. FACTS
This case arises out of the termination of respondent’s parental rights to her minor child
as a result of her alcohol abuse. In January 2018, a petition was filed, alleging that the minor
child came within the trial court’s jurisdiction pursuant to MCL 712A.2(b)1 because respondent
had been hospitalized twice for “alcohol dependence” and “delirium” since October 2017 and
that respondent had left her son, who was two years old at the time, unattended outside while she
attempted to walk to a store in an intoxicated state. According to the petition, respondent had
failed to follow through with treatment for her alcohol use despite being offered services. After
a hearing was held on January 29, 2018, the trial court authorized the petition and the minor
child was placed in the care of respondent’s cousin.
On March 29, 2018, respondent pleaded to the allegations in the petition—namely, that
she “was abusing alcohol in October 2017 while [the minor child] was in her care.” The trial
1
The minor child’s father was also named in the petition, and the father’s parental rights to the
minor child were terminated at the same time as respondent’s parental rights. This appeal deals
exclusively with the termination of respondent’s parental rights.
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court assumed jurisdiction, and the parties agreed to proceed with an immediate disposition. The
Department of Health and Human Services (DHHS) foster care worker assigned to the case
provided a parent-agency agreement (PAA) for respondent, which required respondent to (1)
complete a substance abuse assessment and a psychological evaluation; (2) participate in
substance abuse treatment; (3) attend parenting classes; (4) submit to random alcohol screenings
three times per week; (5) undergo “a comprehensive medical evaluation,” including a screening
for Huntington’s disease; (6) maintain suitable housing; (7) obtain a legal source of income; and
(8) contact the DHHS worker at least two times each month. Respondent was ordered to stop
consuming alcohol. With respect to the testing for Huntington’s disease, the DHHS worker
indicated that the disease is hereditary, that the paternal side of respondent’s family has a history
of suffering from the disease, and that a genetic test was appropriate because respondent might
be exhibiting some of the early symptoms of the disease.
Respondent’s progress with maintaining sobriety and completing the PAA was poor.
Although respondent was allowed supervised visits with the minor child, her parenting time was
suspended early in the proceedings because respondent was intoxicated during parenting time on
two occasions. Parenting time was never reinstated because respondent failed to complete three
consecutive negative alcohol screenings. In November 2018, petitioner filed a supplemental
petition seeking termination of respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i),
(g) (failure to provide proper care and custody), and (j). The supplemental petition alleged that,
during the proceedings, respondent failed to appear for a majority of her random alcohol
screenings and failed to complete other aspects of the PAA, such as submitting to a screening for
Huntington’s disease. The supplemental petition further alleged that respondent continued to
abuse alcohol, had several police contacts while “highly intoxicated,” and was hospitalized
numerous times for excessive intoxication throughout the course of the proceeding. The
supplemental petition was authorized by the trial court and termination proceedings commenced.
After the termination hearing was held, the trial court referee concluded that there was no
evidence that respondent suffered from Huntington’s disease. The referee found that reasonable
reunification services were provided to respondent but that respondent failed to take advantage
of most of the services. The referee also concluded that statutory grounds existed to support the
termination of respondent’s parental rights under MCL 712A.19b(3)(c)(i) and (j) and that
termination of respondent’s parental rights was in the minor child’s best interests. The trial court
adopted the referee’s findings and terminated respondent’s parental rights on March 28, 2019.
This appeal followed, and respondent’s sole argument on appeal is that petitioner failed to offer
reasonable accommodations and services to aid in reunification. 2
2
On appeal, respondent does not argue that the trial court clearly erred by determining that
petitioner established statutory grounds for termination or by determining that termination was in
the minor child’s best interests. Nonetheless, upon review of the record, we conclude that the
trial court did not clearly err when it determined that statutory grounds existed to terminate
respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i) and (j), In re Mason, 486 Mich
142, 152; 782 NW2d 747 (2010), and that termination of respondent’s parental rights was in the
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II. PRESERVATION OF THE ISSUE AND STANDARD OF REVIEW
“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). Here, respondent’s counsel first objected to the
services petitioner offered to respondent at the termination hearing on January 9, 2019, arguing
that the PAA should have been modified to accommodate respondent’s mental “deficiencies”
and Huntington’s disease. Because respondent did not argue that the services offered to her were
inadequate until more than nine months after the PAA was adopted, this issue is unpreserved.
See id.Unpreserved claims of error are reviewed for plain error affecting a party’s substantial
rights. In re Beers, 325 Mich App 653, 677; 926 NW2d 832 (2018). “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.” In re
VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011) (quotation marks and citations
omitted). “An error affects substantial rights if it caused prejudice, i.e., it affected the outcome
of the proceedings.” In re Beers, 325 Mich App at 677 (quotation marks, citation, and brackets
omitted).
III. DISCUSSION
Respondent argues that petitioner failed to offer reasonable services and accommodations
for her disabilities and, thus, failed to make reasonable efforts to reunify her with the minor
child. We disagree.
“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
Minors, 500 Mich 79, 85; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c), and MCL
712A.19a(2). “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.” In re Hicks/Brown Minors, 500 Mich at 85, citing
MCL 712A.18f(3)(d). 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).
minor child’s best interests, In re JK, 468 Mich 202, 209; 661 NW2d 216, reh den 468 Mich
1239 (2003).
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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,” 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, 282; 890 NW2d 696 (2016), aff’d in part and vacated in part, 500 Mich 79(2017); In re Terry, 240 Mich App at 25-26. In In re Hicks/Brown, 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 . . . .
[In re Hicks/Brown, 315 Mich App at 282.]
“[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 242, 248; 824 NW2d 569 (2012).
A. “DISABILITY” UNDER THE ADA
Respondent argues that petitioner failed to modify the service plan to accommodate her
Huntington’s disease. However, there is no evidence in the lower court record that establishes
that respondent actually had Huntington’s disease. Based on suspicion that respondent may have
Huntington’s disease, her PAA required respondent to complete genetic testing to determine
whether she suffered from the disease. Respondent failed to submit to the evaluations offered by
petitioner during the 13-month-long proceedings, and the only evidence that respondent suffered
from Huntington’s disease is her display of some of the symptoms consistent with the disease
and the fact that the disease is genetic and runs in respondent’s family. Thus, the record
evidence is insufficient to establish that respondent suffered from Huntington’s disease so as to
require petitioner to accommodate respondent or to change the PAA. See In re Hicks/Brown,
500 Mich at 86 (holding that the DHHS fails its duty to provide reasonable reunification services
when it does not provide reasonable accommodations or modifications “to the services or
programs offered to a disabled parent”) (emphasis added).
Further, separate from respondent’s alleged Huntington’s disease, respondent’s counsel
argued below that respondent’s psychological evaluation “alluded to some ill [sic] deficiencies.”
Also, on appeal, respondent argues that her low IQ score on certain tests raised a “red flag” that
required petitioner to investigate and “implement meaningful . . . services” aimed at
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reunification. However, respondent never explains or rationalizes what those “ill deficiencies”
were,3 nor does respondent explain how her low IQ 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 has abandoned any argument that her low IQ and
“ill deficiencies” amounted to disabilities under the ADA. See id.Although not argued by respondent as a basis for petitioner’s duty to accommodate
respondent, there is substantial evidence that respondent suffered from alcoholism, which is a
“disability” recognized under the ADA. The ADA defines “disability” to mean “a physical or
mental impairment that substantially limits one or more of the major life activities of [an]
individual.” 42 USC 12102(1). “Mental impairment” includes “any mental or psychological
disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and
specific learning disability.” 28 CFR 35.108(b)(1). The definition of a physical or mental
impairment specifically includes alcoholism. 28 CFR 35.108(b)(2). Accordingly, respondent
suffered from a cognizable disability under the ADA requiring accommodation and “services
designed to facilitate the child’s return to [respondent’s] home.” See In re Hicks/Brown, 500
Mich at 86.
B. REASONABLE EFFORTS TOWARDS REUNIFICATION
Even if respondent was diagnosed with Huntington’s disease, and considering
respondent’s alcoholism constituted a “disability” under the ADA, see 42 USC 12102(1); 28
CFR 35.108(b)(2), the record demonstrates that petitioner provided reasonable accommodation
services to respondent and made reasonable efforts toward reunification. The PAA required
respondent to, among other things, (1) participate in alcohol screens three times per week; (2)
complete a substance abuse evaluation, psychological testing, and a medical evaluation for
Huntington’s disease; (3) undergo inpatient and outpatient treatment for her alcoholism; (4) and
refrain from alcohol use. Respondent made some progress toward the completion of her PAA,
including her successful completion of inpatient treatment and her completion of a substance
abuse and psychological evaluation. For the most part, however, respondent failed to
meaningfully participate in the services offered by petitioner. Respondent failed to appear for
120 out of 126 alcohol screenings, missed her scheduled appointments (including her testing for
Huntington’s disease), and continued to abuse alcohol in the time leading up to termination. In
fact, the DHHS worker observed respondent intoxicated on numerous occasions, including at
least two times during scheduled visitations with the minor child. Respondent was also
hospitalized for excessive intoxication on several occasions after implementation of her PAA and
had numerous police contacts in which she was reported as being “highly intoxicated.”
3
Respondent’s hospital records indicate that she suffered from depression and anxiety, but
respondent has not argued on appeal that those diagnoses require accommodation under the
ADA.
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Respondent never stated that she did not understand the terms of the PAA or that she
could not comprehend the importance of maintaining her sobriety so that she could be reunited
with her minor child. Rather, respondent only questioned the frequency with which she was
required to complete alcohol screenings, arguing that she did not have transportation to attend
the alcohol screenings three times per week. The record reflects that respondent was given bus
passes to attend the screenings, but she used the bus passes for shopping and purposes unrelated
to the alcohol screenings. Respondent refused rides from the DHHS worker to attend her alcohol
screenings. Further, the record establishes that respondent failed to participate in outpatient
substance abuse treatment and that respondent’s continued alcohol abuse escalated throughout
the course of the proceedings. Thus, the trial court did not commit plain error when it
determined that petitioner made reasonable efforts to promote reunification and that respondent
failed to “uphold her commensurate responsibility to engage in and benefit from th[e] services”
offered by petitioner. See In re Smith, 324 Mich App at 45.
Affirmed.
/s/ Michael J. Riordan
/s/ Kirsten Frank Kelly
/s/ Thomas C. Cameron
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