Opinion
No. 350835
04-02-2020
In re A. J. WOODFORD, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 18-000149-NA Before: BECKERING, P.J., and SAWYER and GADOLA, JJ. PER CURIAM.
Respondent-mother appeals as of right from the order terminating her parental rights to her minor child, AW, under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist without reasonable likelihood of rectification within reasonable time), and (g) (parent fails to provide proper care or custody for the child despite financial ability to do so). On appeal, respondent contends that petitioner, the Department of Health and Human Services (DHHS), failed to make reasonable accommodations for her cognitive disability. We disagree, and affirm the trial court's order.
The trial court also terminated the parental rights of the child's father under MCL 712A.19b(3)(a)(i) (child abandoned, parent unidentifiable).
I. BACKGROUND
AW was born paralyzed from the waist down and with hydrocephalus, a buildup of fluid in the brain's ventricles. The hospital provided specialized training to respondent and her uncle, who agreed to assist respondent in caring for AW, and released AW to their care two months after his birth. Among other things, AW's caretakers had to feed him every three hours, give him proper doses of medication, and monitor the shunt in his head. Two weeks after AW's release from the hospital, the child's doctor found that AW had lost two pounds and was undermedicated. After an investigation, petitioner filed a temporary custody petition requesting that the court take jurisdiction of AW and remove him from respondent's care. The petition alleged that respondent had failed to meet AW's medical needs by not feeding him properly or giving him the correct dosages of his daily medications.
The record indicates that respondent received the training three times before she was able to pass.
At the January 2018 preliminary hearing on the petition, the trial court noted that respondent "simply cannot provide the medically necessary care and supervision for [AW] due to her own impairments . . . ." The court authorized the petition, placed AW in foster care, granted respondent supervised parenting time, and stated that it would appoint a guardian ad litem for respondent at the next hearing if respondent's counsel deemed it necessary. The court appointed a guardian ad litem for respondent in March 2018.
At a two-day adjudication hearing, Child Protective Services investigator Felecia Cole testified that respondent had admitted that she could not care for AW by herself and that she was scared to be alone with him. Cole further testified that respondent's uncle was not caring for AW or supporting respondent in caring for him. She relayed concern that AW would be in danger without the court's intervention and that, if the court exercised jurisdiction, services could be provided for respondent that would not otherwise be available to her. Respondent's testimony corroborated that of Cole's. Asked if she could take care of AW without anyone's help, respondent replied, "Well, not really." She testified that her own needs required someone to accompany her everywhere she went "so I won't have no seizures or I won't be sick in no hospital," and indicated that her need for assistance was increased by the added responsibility of a baby with special needs. Respondent explained, "I was born with a tumor in my brain and I have seizures, but other than that, no other problems besides." She believed that, with a little assistance, she might be able to take care of AW at some point, but she could not do it at present. In light of respondent's testimony, her attorney conceded that she needed and wanted services. The trial court exercised jurisdiction and ordered a clinical evaluation to assist with dispositional recommendations for respondent.
Summarizing the findings of the clinical evaluation at the April 2018 dispositional review hearing, the court reported that the clinician "didn't believe that [respondent] would be able to provide care for the child even with assistance due to her limitations and they recommend that the child be placed with a caregiver that has the training, that can provide for the child's needs." Petitioner stated, through its attorney, that it shared the clinician's concerns and would closely monitor the situation through two reporting periods to see if there was marked improvement or if it should request a change in the current permanency planning goal from reunification to adoption. DHHS foster care specialist Heather Huber recommended parent training through Infant Mental Health [IMH] Services, which, Huber stated, "would provide [respondent] more hands-on intensive services," services through Neighborhood Services Organization [NSO], and a psychological evaluation and compliance with any recommendations. Huber noted that NSO would assist in appointing a support person for respondent. Attorneys for petitioner and respondent agreed to this plan. Subsequently, the court ordered referrals for services through IMH services, a psychological evaluation and compliance with any resulting recommendations, participation in services tailored to respondent's disability through NSO, to include the appointment of a support person, appointment of a parenting partner, and respondent's attendance at all medical appointments so she could learn how to care for AW's special needs.
NSO provides services for, among others, children, youth, and adults with developmental disabilities.
The court also ordered respondent to maintain suitable housing and a legal source of income, but these never became issues.
In early June 2018, respondent completed a psychological evaluation, the result of which the court received into respondent's file at a dispositional review hearing held later that month. Among other things, the evaluation reported that testing showed "no impairment in cognitive functioning," but respondent's full scale IQ score of 71, +/- 5, placed her in the "lower extreme to well below average range" of intellectual functioning when compared with her peers. The evaluation noted that respondent did "not seem to have reasonable psychological stability at [the] time," and that she experienced stressors that might interfere with her general functioning, but had limited coping skills. Recommendations included a psychiatric evaluation, a parenting class or individual therapy to help respondent learn parenting methods and techniques, and weekly individual counseling to address the needs noted in the report. The court continued all of its previous orders and added that respondent receive a psychiatric evaluation and therapy.
Respondent received services over the next several months. Huber assisted her with NSO's intake procedure, and respondent was assigned a therapist in July 2018. After some delay on respondent's part, she began individual therapy and adaptive parenting life-skills education through NSO in October 2018. When logistical problems arose with regard to IMH services, petitioner asked the court to substitute a supportive visitation program, which would provide weekly one-on-one parenting with a parenting coach. The court accepted the recommendation, and a parenting coach began attending respondent's weekly parenting time visits. A psychiatric evaluation was scheduled for January 2019, canceled by respondent on account of illness, and finally completed in March 2019. Throughout this time, respondent was aided by a support person, Darryl Montgomery, who accompanied her to appointments and parenting time visits.
Wayne County could not provide IMH services because the child resided in Macomb County, and Macomb County would not provide IMH services in Wayne County.
The record indicates that respondent had weekly supervised parenting time visits at Michigan Department of Human Services (MDHS), she attended AW's physical therapy and doctor's appointments, and she apparently had some extended parenting time on the weekends, supervised by AW's foster mother.
One of the concerns expressed was that when the support person accompanied respondent to visitation, she let him take over parenting AW and she disengaged. Consequently, the court instructed that the support person was not to accompany respondent into the visitation room so that respondent could bond with and practice caring for AW. As already indicated visitation at MDHS was supervised by petitioner or its designee.
Petitioner filed a supplemental petition on April 12, 2019, in which petitioner alleged that respondent's capacity to meet AW's special needs had not sufficiently improved and sought termination of respondent's parental rights. At a pretermination hearing on April 29, 2019, the court received into evidence a report of the psychiatric evaluation of respondent. The report concluded that respondent was not depressed and did not need medication, but she did need therapy. Huber agreed, noting that respondent was receiving therapy once a month through NSO, and opining that she should be attending therapy no less than biweekly. Huber contacted NSO to increase the frequency of respondent's therapy sessions and NSO contacted respondent with the offer of more therapy. However, respondent declined the offer because she had begun cosmetology school in the spring and the additional therapy sessions would interfere with her school schedule.
The termination hearing took place over three days. Huber testified that, based on her initial assessment of respondent's cognitive abilities, she had concluded that a standard treatment plan would be insufficient and that respondent required services that were "more interactive as opposed to just talking." Huber stated that respondent's specialized services were "through NSO, which also were part of the SPIN program to offer her more life skills training . . . ." After an initial delay in setting up services with NSO, respondent attended monthly therapy sessions. As previously indicated, Huber attempted to arrange for more frequent therapy, but respondent declined due to her school schedule. Huber opined that respondent had not benefitted from services.
The "Supporting Parents' Individual Needs (SPIN)" program is designed for developmentally disabled parents who are raising their children.
According to NSO, respondent had "shown great improvement in the areas of self-sufficiency, anger management, and parenting skills" since she began therapy. This report was submitted to the court as part of the Updated Court Report of April 29, 2019. --------
Huber also testified that a parent partner had been appointed for respondent and that respondent had completed a "hands-on" parenting course through the Foster Supportive Visitation Program. Michelle Empson, respondent's supportive visitation coach, testified that the 12-week course began in November 2018 and ended in April 2019. During that time, testified Empson, she attempted to teach respondent "about child development and feeding and nutrition." Empson said she physically demonstrated all the lessons and gave respondent step by step verbal instructions. However, respondent did not comprehend lessons related to safety, bodily support, and feeding, even with repetition. In addition, respondent did not understand that AW was unable to have regular bowel movements without medication. Respondent was also "on the phone a lot. . . . [S]he would be texting or having video calls with family members, friends during the visits." Empson said that respondent complied with suggestions to get off the phone, but they had the same conversation about getting off the phone every week. Empson did not believe that respondent benefitted from the 12-weeks of hands-on instruction, noting "the things on the referral that [respondent] needed [to accomplish] didn't change."
On cross-examination, Empson acknowledged that she provided the same services to respondent and AW that she would provide to any parent who came to Supportive Visitation. Asked if she had modified anything "based on [respondent's] special needs," Empson said she had repeated lessons, given her extra time, provided examples, and generally tried to help her understand the lessons. Empson said that respondent would say that she understood or would give her examples relevant to the lessons they were learning, but Empson could not say that respondent applied the lessons. Huber agreed that respondent did not benefit from supportive visitation, noting specifically that respondent remained unable to read AW's "cues," i.e., to identify why he was crying and to respond appropriately.
Montgomery, respondent's "friend for about five or six years," testified that he had, with NSO's assistance, petitioned the court for guardianship of respondent. He planned on moving in with respondent, and he thought of AW as his "own son." Montgomery said he was retired with "two pensions and SSI Disability." He admitted that he had no legal duty to care for respondent or AW and, if his relationship with respondent were to change, she would be left alone to care for AW. Montgomery opined that respondent could care for AW without assistance.
The trial court found that clear and convincing evidence established at least one statutory ground for the termination of respondent's parental rights and that a preponderance of the evidence established that termination was in AW's best interests. The trial court further noted:
[T]he services offered were specifically tailored to the needs of the mother pursuant to In re Hicks/Brown, 499 Mich 982 (2016). The court considers the guardian ad litem appointed to assist the mother, along with mental health evaluations, supportive visitation program, the Neighborhood Service Organization services, and parent partner offered to the mother.The court entered a corresponding order. Respondent now appeals.
II. ANALYSIS
Respondent argues that the trial court erred in finding that petitioner made reasonable accommodations for her cognitive disability because the only accommodation made was the provision of a supportive visitation coach who was not trained to interact with cognitively disabled parents. We disagree.
This Court reviews a lower court's findings of fact for clear error. MCR 3.997(K). A finding is clearly erroneous if "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009) (quotation marks and citation omitted). This Court must consider "the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
Michigan's Probate Code requires petitioner "to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks/Brown, 500 Mich 79, 86; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). "[Petitioner] 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, 500 Mich at 86, citing MCL 712A.18f(3)(d). "[Petitioner] also has obligations under the [Americans with Disabilities Act] . . . [to ensure 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.' " In re Hicks/Brown, 500 Mich at 86, quoting 42 USC 12132. "Absent reasonable modifications to the services or programs offered to a disabled parent, [petitioner] has . . . failed in its duty to make reasonable efforts at reunification under MCL 712A.19a(2)." In re Hicks/Brown, 500 Mich at 86. "[T]ermination [of parental rights] is improper without a finding of reasonable efforts." Id. at 90. However, "[a] parent, whether disabled or not, must demonstrate that she can meet [a child's] basic needs before [the child] will be returned to her care." In re Terry, 240 Mich App 14, 28; 610 NW2d 563 (2000). "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." Id. (quotation marks and citation omitted).
In this case, the court based its finding that reasonable accommodations were provided on petitioner's provision of mental health evaluations, specialized NSO services, a supportive and a parenting visitation coach. On appeal, respondent relies on Empson's testimony that she was not aware of respondent's special needs, that she had no specialized training regarding parents with cognitive delays, and that she provided respondent with essentially the same service she would have provided to a parent without a cognitive disability to argue that petitioner did not provide services sufficiently tailored to her special needs. We disagree.
The fact that the trial court provided respondent with a hands-on supportive visitation coach arguably represented a needs-specific modification of the usual approach to supervised parenting time. Respondent was provided intensive coaching, hands-on lessons that were repeated as necessary, examples of the skills being taught, and extra time to understand the lessons. Moreover, respondent's argument willfully ignores the fact that petitioner referred respondent for specialized services through NSO in July 2018 and provided hands-on assistance with the initial intake procedure. Respondent completed the second step required to obtain services, and began individual therapy and parenting instruction on October 17, 2018. She also met with a life skills coach pursuant to NSO's Supporting Parents' Individual Needs (SPIN) program for developmentally disabled parents. As previously indicated, Huber contacted NSO to increase the frequency of respondent's sessions following the court's April 29, 2019 order, but respondent declined additional therapy because it would interfere with her cosmetology school schedule. Respondent cannot succeed on the claim that petitioner did not make reasonable accommodations for her disability when she refused intensification of her treatment plan's adaptive component. See In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012) ("While respondents were offered various services and did participate in and complete certain mandated requirements of their respective treatment plans, they failed to demonstrate sufficient compliance with or benefit from those services specifically targeted to address the primary basis for the adjudication in this matter . . . .").
Respondent's comparison of the facts of this case to those of In re Hicks/Brown is inapposite. In In re Hicks/Brown, our Supreme Court held that petitioner failed to make reasonable accommodations for a cognitively disabled respondent because it had not referred her for NSO services. In re Hicks/Brown, 500 Mich at 89-90. In this case, petitioner did not fail to refer respondent for NSO services or to assist her with the intake process. The record shows that the trial court and petitioner were keenly aware of the responsibility to provide respondent with services appropriate to her cognitive abilities and that they met that responsibility by providing respondent with psychological and psychiatric evaluations, involving her in NSO, engaging her in a supportive visitation program, providing a parenting partner, providing a support person through NSO, and giving respondent time to benefit from the treatment plan.
Yet, despite this assistance, respondent simply was unable to understand AW's condition. The record indicates respondent's affection for AW and that parent and child had a bond of sorts. But respondent's inability to appreciate the seriousness of AW's condition was apparent throughout the proceedings. Respondent explained to the clinician who initially evaluated her that she had lost temporary custody of AW because she had left the rail down on his crib and the hospital staff thought she could not take care of him. Failing to appreciate that AW was paralyzed from the waist down, respondent tried to stand him up during one visitation and thought he could not stand because of the cast on his body. Huber testified that respondent would occasionally try to have AW walk, that she discussed taking away basketball as a form of discipline, and that she expressed a belief that he would walk at some point. Visitation supervisors repeatedly had to instruct respondent regarding how to hold AW to protect his head, neck, and legs. Despite the assistance repeatedly provided to respondent, she could not demonstrate the ability to provide him with the bare minimum care that he needed to live, let alone to thrive.
On this record, we conclude that the trial court did not clearly err in finding that petitioner made reasonable accommodations for respondent's cognitive abilities or in terminating respondent's parental rights.
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Michael F. Gadola