In re Clark
| Docket Number | 362971 |
| Decision Date | 29 June 2023 |
| Parties | In re CLARK/COOK, Minors. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court Family Division LC No. 2020-000569-NA
Before: MARKEY, P.J., and JANSEN and K. F. KELLY, JJ.
Respondent appeals by right the trial court's order terminating her parental rights to her three minor children, NJC, TMC, and GNC, under MCL 712A.19b(3)(c)(i) (), (g) (failure to provide care or custody), and (j) (reasonable likelihood that child will be harmed if returned to parent). We affirm.
Respondent is the mother of NJC, TMC, and GNC. In June 2020, petitioner sought authorization of a petition to acquire jurisdiction over all three children. The petition alleged that respondent used heroin during her pregnancy with GNC and that she had ongoing substance-abuse issues. GNC tested positive for drugs at birth and experienced severe withdrawal. The petition further alleged that it was dangerous for all three children to remain with respondent because of her substance abuse. The petition was authorized, and the children were removed and placed with relative caregivers. The trial court exercised jurisdiction over the children in October 2020 after an adjudication. Under a parent-agency treatment plan respondent was required to complete parenting classes participate in individual therapy focusing on respondent's substance abuse, complete random, weekly drug screens, obtain and maintain suitable housing, obtain and maintain a legal source of income, and complete a psychological evaluation. In October 2021, petitioner filed a supplemental petition seeking to terminate respondent's parental rights, alleging that respondent had neglected to care for the children and that she had failed to complete her treatment plan.
At the conclusion of the termination hearing, the trial court found clear and convincing evidence that statutory grounds existed to terminate respondent's parental rights to all three children under MCL 712A.19b(3)(c)(i), (g), and (j). The trial court also determined that petitioner established by a preponderance of the evidence that termination of respondent's parental rights was in all three children's best interests. The trial court then entered an order terminating respondent's parental rights.
Respondent first argues that the trial court clearly erred when it found that petitioner made reasonable efforts to reunify respondent with her children. We disagree.
"We review the trial court's findings regarding reasonable efforts for clear error." In re Smith, 324 Mich.App. 28, 43; 919 N.W.2d 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).
"In general, petitioner must make reasonable efforts to rectify conditions, to reunify families, and to avoid termination of parental rights." In re LE, 278 Mich.App. 1, 18; 747 N.W.2d 883 (2008), overruled in part on other grounds by In re Sanders, 495 Mich. 394, 422; 852 N.W.2d 524 (2014). Termination is premature when a respondent is "not afforded a meaningful and adequate opportunity to participate." In re Mason, 486 Mich. 142, 152; 782 N.W.2d 747 (2010). The burden is on the petitioner to "ensure that appropriate services are provided." In re Rood, 483 Mich. 73, 105; 763 N.W.2d 587 (2009). Although the petitioner "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. 242, 248; 824 N.W.2d 569 (2012).
Here, petitioner went over the treatment plan with respondent on multiple occasions and informed her of the importance of engaging in the services that were being offered to respondent. Petitioner referred respondent to parenting classes several times and offered respondent 132 scheduled visits with her children. Petitioner also referred respondent to individual therapy sessions at least four times during the pendency of the proceedings. After respondent was terminated early from therapy sessions for attendance failures in March and April of 2021, petitioner again referred respondent for therapy in July 2021. Additionally, petitioner provided for drug screening so as to monitor respondent's efforts at overcoming her addiction to drugs. Furthermore, petitioner offered respondent two in-person drug screens, one before a visitation in March 2021 and the other shortly before the March 2022 termination hearing. After the March 2021 screen came back positive for heroin and cocaine, petitioner discussed the results with respondent and referred her to inpatient treatment for her substance-abuse issues. Petitioner also referred respondent for a psychiatric evaluation three times; however, respondent never attended or completed an assessment. Based on the evidence presented, we conclude that the trial court did not clearly err by finding that petitioner made reasonable efforts to rectify the conditions, to reunify respondent with her children, and to avoid terminating respondent's parental rights. Rather, the record reflects that respondent failed to fulfill her obligation to participate in the services that were offered to her.
Respondent also argues that petitioner had a duty under the Americans with Disabilities Act (ADA), MCL 42 USC 12101 et seq., to make extra efforts to ensure her a fair opportunity to benefit from the services offered by petitioner. Respondent argues that petitioner was aware that respondent had or may have suffered a disability or impairment and failed to accommodate her.[1]We disagree. Although "[a] parent may not raise violations of the ADA as a defense to termination of parental rights proceedings," In re Terry, 240 Mich.App. 14, 25; 610 N.W.2d 563 (2000), petitioner is required to make "reasonable modifications to the services or programs offered to a disabled parent," In re Hicks/Brown, 500 Mich. 79, 86; 893 N.W.2d 637 (2017). But under the ADA, "the term 'disability' shall not include . . . psychoactive substance abuse disorders resulting from current illegal use of drugs." 42 USC 12211(b)(3). Respondent admitted to illegally using heroin less than a week before the termination hearing and to using heroin "on and off" since GNC's birth. Thus, even though respondent was diagnosed with opioid use disorder, her current use of heroin was illegal, and her disorder cannot be considered a disability under the ADA. Therefore, we hold that respondent's argument lacks merit.
On appeal, respondent argues that the trial court clearly erred by finding that there existed clear and convincing evidence of the statutory grounds for termination and by finding by a preponderance of the evidence that termination of respondent's parental rights was in the children's best interests. In In re Mota, 334 Mich.App. 300, 320; 964 N.W.2d 881 (2020), this Court set forth the following framework with respect to appeals challenging the statutory grounds for termination and the best-interests determination:
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.]
A trial court may terminate parental rights under MCL 712A.19b(3)(c)(i) if it finds by clear and convincing evidence that after 182 days or more have elapsed since the initial dispositional order was entered, "[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." In this case, the initial dispositional order was entered in October 2020; therefore, more than 182 days elapsed before the trial court terminated respondent's parental rights in July 2022. We conclude that the conditions that led to respondent's adjudication continued to exist. The initial petition alleged that respondent used heroin throughout her pregnancy with GNC and that she did not attend a drug rehabilitation program or any other substance-abuse treatment program during the pregnancy. The petition also alleged that it was dangerous for NJC, TMC, and GNC to remain with respondent due to her substance-abuse issues. At respondent's adjudication in October 2020, the trial court took note of these conditions and ordered respondent to complete a treatment plan to rectify the conditions.
We conclude that the trial court did not clearly err by finding clear and convincing evidence that the conditions of adjudication continued to exist, that respondent did not rectify any of the conditions, that respondent had been given a reasonable opportunity to rectify those conditions, and that there was...
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