in Re Bailey Minors ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re BAILEY, Minors. June 7, 2018
No. 340282
Gladwin Circuit Court
Family Division
LC No. 16-000124-NA
Before: O’CONNELL, P.J., and K. F. KELLY and RIORDAN, JJ.
PER CURIAM.
Respondent-mother appeals as of right the trial court’s order terminating her parental
rights to two minor children, HB and JB, under MCL 712A.19b(3)(c)(i) (conditions that led to
adjudication continue to exist), (g) (failure to provide proper care or custody), and (j) (reasonable
likelihood of harm).1 We affirm.
HB and JB were removed from respondent’s home because of improper supervision and
respondent’s failure to acknowledge and address HB’s threatened suicide and self-harming
behaviors. Respondent argues that reversal is warranted because the Department of Health and
Human Services (DHHS) failed to expend reasonable efforts to reunify the family by not making
reasonable accommodations to account for respondent’s mental health issues.
This issue is unpreserved because respondent failed to object to the adequacy of the
services DHHS provided. See In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). “The
time for asserting the need for accommodation in services is when the court adopts a service plan
. . . .” Id. (quotation marks and citation omitted). This Court reviews for clear error the trial
court’s findings of fact in termination proceedings, including whether DHHS made reasonable
efforts to provide a respondent with services aimed at reunification. In re Fried, 266 Mich App
535, 541-543; 702 NW2d 192 (2005). However, we review unpreserved issues for “plain error
affecting substantial rights.” In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). An “error
affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings.”
Id. at 9.
1
The children’s father’s parental rights were previously terminated. He is not a party to this
appeal.
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“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, 500 Mich
79, 85; 893 NW2d 637 (2017). Reasonable efforts begin with the creation of a case service plan
aimed at rectifying the conditions that caused the child’s removal. In re Fried, 266 Mich App at
542. The service plan must include a “[s]chedule of services to be provided to the parent . . . to
facilitate the child’s return to his or her home . . . .” MCL 712A.18f(3)(d). “Public entities, such
as [DHHS], must make ‘reasonable modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of disability, unless . . . the
modifications would fundamentally alter . . . the service’ provided.” In re Hicks, 500 Mich at 86,
quoting 28 CFR 35.130(b)(7) (2016). “While [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 Frey, 297 Mich App
at 248. The respondent must demonstrate that the services provided were sufficiently beneficial.
Id.
Respondent relies on In re Hicks, 500 Mich at 82-83, in which the respondent-mother
was intellectually disabled, to support her argument. In In re Hicks, 500 Mich at 84, the
respondent’s attorney requested accommodations several times prior to the termination hearing.
Despite the trial court’s consequent order granting respondent’s counsel’s request for
accommodations, DHHS did not modify the case service plan to make those accommodations.
Id. at 89-90. Therefore, termination was improper because “efforts at reunification cannot be
reasonable under the Probate Code unless [DHHS] modifies its services as reasonably necessary
to accommodate a parent’s disability.” Id. at 90.
In this case, unlike In re Hicks, respondent’s attorney did not request an accommodation
or argue that the case service plan was unworkable because of respondent’s depression or
anxiety. During implementation of the case service plan, respondent was diagnosed with major
depression and generalized anxiety disorder. DHHS identified respondent’s struggle with mental
health issues from the outset of the case in March 2016. Respondent was already engaged in
weekly therapy at that time. She was twice encouraged to seek a psychiatric evaluation, yet she
repeatedly delayed scheduling a psychiatric evaluation. She finally underwent a psychiatric
evaluation and was prescribed medication in May 2017, fourteen months after the beginning of
the case. By the time of the termination hearing in September 2017, she had already
discontinued the medication.
The record contains no indication that respondent’s anxiety and depression prevented her
from taking advantage of psychiatric care. Instead, respondent was given many opportunities to
pursue psychiatric care, but she put them off and discontinued prescribed medication. Her
failure to take advantage of those services, in addition to her quick discontinuation of the
recommended medication, belies the assertion that she would have fared better had DHHS
offered additional services. Moreover, respondent does not identify what additional services
DHHS should have offered or how DHHS should have modified the case service plan to
accommodate respondent’s mental health diagnoses, particularly when she demonstrated an
aversion to the prescribed medication.
Additionally, respondent was recommended to take part in long-term individual therapy
and family therapy, and she did so consistently. Her therapist testified that respondent was
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cooperative and had made progress on relaxation skills and recognizing triggers that exacerbated
her anxiety and depression. However, psychological evaluations in May and June 2016
described respondent as being in “denial” and externalizing responsibility for her circumstances,
which created an environment that was not conducive to the children’s emotional development.
One year later, despite participating in therapy, respondent’s follow-up psychological evaluation
established that respondent did not make progress in taking responsibility and that respondent
continued to blame her daughter and Child Protective Services (CPS) for the continuation of the
termination proceeding without acknowledging her role. The evaluation further noted that
respondent’s lack of progress made it difficult for her to benefit from services provided so as to
reduce the risk to the children if they were to return to respondent’s home. The children’s
therapist testified that respondent continued to “victim-blame” them and that she refused to
support and validate their feelings, which was essential to their recovery. At the termination
hearing, respondent was only able to admit “some” responsibility for the children’s removal,
explaining that she was unable to supervise the children because of her limitations following
surgery instead of recognizing her own emotional instability. Further, she continued to blame
CPS for the removal, and she described HB as “deceitful” and a “sociopath.”
Respondent’s sole argument on appeal is that reasonable efforts were not made to reunify
the family. Nonetheless, the “contention that reasonable services were not offered ultimately
relates to the issue of sufficiency” of the evidence for termination of parental rights. In re Fried,
266 Mich App at 541. In this case, the trial court did not clearly err by finding that respondent’s
untreated mental health issues and other issues leading to adjudication continued to exist at the
time of the termination hearing and that there was a reasonable likelihood of harm to the children
if they were returned to her custody. Respondent participated in counseling and therapy, but she
chose not to seek out and benefit from psychiatric care. Furthermore, respondent’s parental
rights were terminated because she continued to externalize blame and she failed to benefit from
the psychological and psychiatric care that she did receive. Although respondent participated in
counseling, it was evident at the termination hearing that she did not sufficiently benefit from
counseling because she was still unable to recognize her own responsibility and continued to
blame CPS and HB. In short, respondent has not shown that her inability to benefit from the
services offered resulted from unreasonable efforts or DHS’s failure to make a reasonable
accommodation.
We affirm.
/s/ Peter D. O’Connell
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan
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