In Re K a Kazmierczak Minor ( 2024 )

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UNPUBLISHED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 KAZMIERCZAK, Minor. August 22, 2024
No. 369083
Lapeer Circuit Court
Family Division
LC No. 22-012983-NA
Before: MARKEY, P.J., and SWARTZLE and MARIANI, JJ.
PER CURIAM.
Respondent-father appeals by right the trial court’s order terminating his parental rights to
his minor child, KAK, under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue
to exist), (g) (parent fails to provide proper care or custody), (i) (parental rights to one or more
siblings terminated), and (j) (reasonable likelihood child will be harmed if returned to parent). On
appeal, respondent argues that the trial court clearly erred by finding that the statutory grounds for
termination were established by clear and convincing evidence and by finding by a preponderance
of the evidence that termination of his parental rights was in KAK’s best interests. Embedded in
these arguments are respondent’s claims that reasonable efforts at reunification were not made,
especially given his cognitive limitations, and that a guardianship should have been established
instead of termination. We affirm.
In April 2022, Children’s Protective Services (CPS) received a referral alleging that three-
year-old KAK had been physically abused as evidenced by numerous bruises on her face and body.
A medical examination strongly suggested that KAK was beaten. Accordingly, the Department
of Health and Human Services (DHHS) filed a petition requesting the trial court to authorize the
petition and issue an order removing KAK from the family home. Subsequently, KAK was
removed from the home and placed with respondent’s aunt, JW. At the adjudication in September
2022, respondent pleaded no contest to the allegations in the petition, and the trial court took
jurisdiction over KAK.1 Reunification was the initial goal, and under the parent-agency treatment
1
It appears that KAK was beaten and abused by respondent’s live-in girlfriend at the time and that
respondent, who gave DHHS explanations of an accidental nature for the bruising, was faulted for
-1-
plan, respondent was obligated to undergo a psychological evaluation, attend and benefit from
individual counseling and parenting education and skills classes, maintain stable and suitable
housing, and obtain and keep employment so as to produce a legal source of income.
Respondent made progress and was eventually permitted to have unsupervised parenting
time with KAK. But in September 2023, parenting time was suspended after DHHS visits to
respondent’s home revealed numerous troubling signs, and respondent had tested positive for
cocaine use. The trial court was presented with evidence that individuals staying at respondent’s
home were using cocaine and methamphetamine on the premises, that items and residue suggesting
drug use and activities were located in respondent’s home, that garbage was strewn throughout the
yard, and that animal feces and urine were found on the porch and inside the house. Additionally,
there was evidence that broken glass was left on a floor, that the house did not pass a city
inspection, that defendant was incoherent with bloodshot eyes during one DHHS visit, that
dangerous and aggressive dogs were kept on the property, that women’s underwear and an ashtray
were found in KAK’s bed, that fights and assaults were occurring on the premises, and that the
police had visited the home approximately 50 times to quell a variety of disturbances.
Accordingly, the DHHS filed a supplemental petition to terminate respondent’s parental
rights, and the trial court ultimately found that grounds for termination were established under
712A.19b(3)(c)(i), (g), (i), and (j). The trial court also determined that reasonable efforts toward
reunification had been made by the DHHS, that a guardianship was not advisable, and that
termination of respondent’s parental rights was in KAK’s best interests. This appeal ensued.
In In re Mota, 334 Mich App 300, 320; 964 NW2d 881 (2020), this Court set forth the
following framework with respect to termination appeals:
If a trial court finds that a single statutory ground for termination has been
established by clear and convincing evidence and that it has been proved by a
preponderance of the evidence that termination of parental rights is in the best
interests of a child, the court is mandated to terminate a respondent’s parental rights
to that child. This Court reviews for clear error the trial court’s ruling that a statutory
ground for termination has been established and its ruling that termination is in the
children’s best interests. A finding is clearly erroneous if the reviewing court has a
definite and firm conviction that a mistake has been committed. When applying the
clear error standard in parental termination cases, regard is to be given to the special
opportunity of the trial court to judge the credibility of the witnesses who appeared
before it. [Quotation marks, citations, brackets, and ellipses omitted.]
Assuming that reliance on MCL 712A.19b(3)(c)(i) for termination of respondent’s parental
rights was problematic because there was no evidence that KAK was physically abused or that
respondent failed to protect KAK from physical abuse after adjudication, we conclude that the trial
failing to protect KAK. KAK’s mother released her parental rights to the child and is not a party
to this appeal. Respondent’s parental rights to three other children were previously terminated for
noncompliance with his case-service plan. A fourth child was adopted after respondent voluntarily
released his parental rights.
-2-
court did not clearly err by terminating respondent’s parental rights under MCL 712A.19b(3)(j).
Subsection 19b(3)(j) provides for termination when “[t]here is a reasonable likelihood, based on
the conduct or capacity of the child’s parent, that the child will be harmed if the child is returned
to the home of the parent.”
The tumultuous, unsanitary, criminal, drug-filled, and dangerous home environment in
which respondent was living and KAK would visit as shown by the evidence alluded to earlier
clearly constituted strong evidence of a reasonable likelihood, based on respondent’s conduct and
capacity, that KAK would be harmed if returned to respondent’s home. Respondent also failed to
substantially comply with and benefit from his case-service plan, consistently failed to follow
through on keeping appointments, and failed to take his medications regularly. See In re White,
303 Mich App 701, 711; 846 NW2d 61 (2014) (“a parent’s failure to comply with the terms and
conditions of his or her service plan is evidence that the child will be harmed if returned to the
parent’s home”). Respondent’s conduct, his abysmal choices of persons whom he allowed to stay
in his home, and his lack of capacity to protect KAK compelled termination of his parental rights.
To say the least, his housing was unstable and unsuitable for KAK. Respondent contends that this
is merely a case in which questionable people took advantage of his hospitality. But that is exactly
the problem, i.e., respondent’s susceptibility to others taking advantage of him, which in turn
placed KAK in harm’s way. We conclude that the trial court did not clearly err by finding that
there existed clear and convincing evidence supporting termination of respondent’s parental rights
under MCL 712A.19b(3)(j). Because only one ground for termination needed to be established to
terminate respondent’s parental rights, we need not address the other grounds. Mota, 334 Mich
App at 320.
Next, respondent contends that the DHHS has an obligation under the Americans with
Disabilities Act (ADA), 42 USC 12101 et seq., to make reasonable accommodations for disabled
parents so as to best ensure that they receive and benefit from services offered by the DHHS. In
cursory fashion, respondent contends that the DHHS failed to accommodate his disabilities, i.e.,
his cognitive limitations, low IQ, and mental-health problems, leaving him “largely on his own,”
and that therefore reasonable efforts at reunification were not made. “We review the trial court’s
findings regarding reasonable efforts for clear error.” In re Smith, 324 Mich App 28, 43; 919
NW2d 427 (2018). “A finding is clearly erroneous if, although there is evidence to support it, this
Court is left with a definite and firm conviction that a mistake has been made.” Id. (quotation
marks and citation omitted).
The DHHS normally has an affirmative duty to make reasonable efforts at reunification
before seeking the termination of parental rights. In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d
637 (2017); see also MCL 712A.18f(3)(b); MCL 712A.19a(2). To that end, the DHHS in this case
created a case-service plan that included a schedule of services to be provided to respondent. See
In re Hicks/Brown, 500 Mich at 85-86. When providing services, the DHHS must give a
respondent a reasonable time to make changes and benefit from the plan. In re Mason, 486 Mich
142, 159; 782 NW2d 747 (2010). “Not only must respondent cooperate and participate in the
services, she must benefit from them.” In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014).
The ADA does not provide a defense to proceedings to terminate parental rights, In re Terry, 240
Mich App 14, 24-25; 610 NW2d 563 (2000), but it does require the DHHS to reasonably
accommodate a disabled parent when providing services to achieve reunification and avoid
termination of parental rights, In re Hicks/Brown, 500 Mich at 86, citing 42 USC 12132 and 28
-3-
CFR 35.130(b)(7). The DHHS’s obligations under the ADA dovetail with its affirmative duty
under Michigan’s Probate Code “to make reasonable efforts to reunify a family before seeking
termination of parental rights.” In re Hicks/Brown, 500 Mich at 85-86, citing MCL 712A.18f(3)(b)
and (c) and MCL 712A.19a(2). The parent bears the burden to show that he or she would have
fared better with an accommodation. See In re Fried, 266 Mich App 535, 543; 702 NW2d 192(2005).2
A claim that a parent’s rights under the ADA were violated must be raised well before the
dispositional hearing to terminate parental rights. That did not occur here, and the failure to do so
constitutes a waiver. In re Sanborn, 337 Mich App 252, 263 n 3; 976 NW2d 44 (2021).3
Nevertheless, we will address the issue. The record indicates that respondent needed assistance
with making daily living and parenting decisions because of his cognitive deficits and low IQ. The
DHHS provided respondent with a parent partner for purposes of one-on-one parenting education,
but respondent ended the relationship because he felt the services were no longer needed.
Respondent also informed the DHHS that he did not feel that his parent partner was helpful. The
DHHS additionally offered respondent help with budgeting, and respondent declined. And on
multiple occasions the DHHS attempted to assist him in obtaining housing and a legal income.
The trial court considered not only respondent’s need for help but also his refusal to accept it.
Respondent did not meet his obligation to cooperate with and participate in offered services, and
the DHHS’s efforts to accommodate respondent’s stated “disability” were reasonable. Moreover,
respondent does not identify what services should have been provided to him. In sum, we conclude
that the trial court did not clearly err by finding that reasonable efforts at reunification were made.
With respect to the issue concerning whether termination of respondent’s parental rights
was in KAK’s best interests, in In re Mota, 334 Mich App at 321, this Court discussed the best-
interests analysis, stating as follows:
With respect to a child’s best interests, we focus on the child rather than the
parent. In assessing a child’s best interests, a trial court may consider such factors
as a child’s bond to the parent, the parent’s parenting ability, the child’s need for
permanency, stability, and finality, and the advantages of a foster home over the
parent’s home. The trial court may also consider a parent’s history of domestic
violence, the parent’s compliance with his or her case service plan, the parent’s
visitation history with the child, the children’s well-being while in care, and the
possibility of adoption. The trial court may also consider how long the child was in
foster care or placed with relatives, along with the likelihood that the child could
2
Failure to make reasonable efforts toward reunification may prevent the DHHS from establishing
statutory grounds for termination. In re Newman, 189 Mich App 61, 65-68; 472 NW2d 38 (1991).
3
During his testimony at the termination hearing, respondent did complain that he was
inadequately assisted by the DHHS with respect to helping him understand and walking him
through the proceedings.
-4-
be returned to the parents’ home within the foreseeable future, if at all. [Quotation
marks, citations, and brackets omitted.]
The evidence reflected that although respondent loves KAK, they appeared to have a bond,
and KAK looked forward to parenting time, respondent did not demonstrate an interest or ability
to act as a parent for KAK. By the time of the termination hearing, for instance, respondent had
ceased involvement in KAK’s schooling or medical care and had stopped asking JW about her,
and he required encouragement to do more than sit and watch television with her during their
parenting-time visits. Despite the love and bond between the two, respondent was unable to
provide stability, safety, and permanency. Moreover, KAK had been out of respondent’s care for
the majority of her young life. Respondent, however, failed to adequately address his issues during
the lengthy proceedings and was unable to effectively parent KAK despite being offered extensive
services. At the time of termination, respondent’s home clearly remained unsafe. KAK was in
relative placement with JW, which the trial court properly considered as part of the best-interests
analysis.4 KAK was doing well in her placement with JW, and she was bonded with her aunt, who
was committed to caring for KAK’s needs and expressed a willingness to adopt her. KAK
considered JW to be her mother and looked to her for love, guidance, care, and comfort.
On the guardianship issue, a guardianship may be appropriate when “an ongoing
relationship with [the parent]—rather than termination—is in the children’s best interests.” In re
Mason, 486 Mich at 169. “[W]hile the guardian assumes the legal duties of a parent . . . , the
parent is still under many circumstances permitted to maintain a relationship with the child.” In
re TK, 306 Mich App at 705. In this case, the trial court took the lead in having the DHHS look
into the possibility of a guardianship with JW, but the court ultimately found that the continuing
risk of harm respondent posed to KAK rendered a guardianship inappropriate. We find no error
in that ruling. In sum, we hold that the trial court did not clearly err by finding by a preponderance
of the evidence that termination of respondent’s parental rights was in KAK’s best interests.
We affirm.
/s/ Jane E. Markey
/s/ Brock A. Swartzle
/s/ Philip P. Mariani
4
“Placement with a relative weighs against termination, but that fact is not dispositive given that
a trial court may terminate parental rights in lieu of placement with relatives if it finds that
termination is in the child’s best interests[.]” In re Atchley, 341 Mich App 332, 347; 990 NW2d
685 (2022) (quotation marks and citation omitted).
-5-