In re Hicks, Docket No. 328870.

• Decision Date: 26 April 2016
• Docket Number: Docket No. 328870.
• Citation: 315 Mich.App. 251,890 N.W.2d 696
• Parties: In re HICKS.
• Court: Court of Appeal of Michigan — District of US

315 Mich.App. 251

890 N.W.2d 696

In re HICKS.

Docket No. 328870.

Court of Appeals of Michigan.

Submitted April 6, 2016, at Detroit.

Decided April 26, 2016, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Lesley Carr Fairrow, Assistant Attorney General, for the Department of Health and Human Services.

Child Welfare Appellate Clinic (by Vivek S. Sankaran and Jessica Shaffer (under MCR 8.120(D)(3))), for respondent.

William Ladd, for the minor children.

Before: GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ.

GLEICHER, P.J.

Respondent-mother is a cognitively impaired young woman. When respondent's family support system fell apart, she relinquished custody of her two-month-old daughter to the Department of Health and Human Services (DHHS). Subsequently, the DHHS took respondent's newborn son into care. Although the child-protective proceedings persisted for more than three years and the DHHS was well aware of respondent's special needs, the case service plan never included reasonable accommodations to provide respondent a meaningful opportunity to benefit. Absent such accommodations, the DHHS failed in its statutory duty to make reasonable efforts to reunify the family unit. And absent reasonable efforts, the DHHS lacked clear and convincing evidence to support the statutory grounds cited in the termination petition. We therefore vacate the circuit court's order terminating respondent's parental rights to her two minor children and remand for reconsideration following the provision of necessary accommodated services.

I. FACTUAL AND PROCEDURAL HISTORY

Psychological testing revealed that respondent has a full scale IQ of 70, placing her in the second percentile and "within [the] borderline range of intellectual functioning." Her verbal comprehension index is 66, within the extremely low range. Her scores related to perceptual reasoning, processing speed, and working memory are equally low. Caseworkers commented on the overt appearance of respondent's impairment upon meeting her as well as noting her difficulty in communicating on the telephone, her shyness and hesitancy, and her flat affect. Child Protective Services (CPS) had been intermittently involved in respondent's life since she was seven years old. Despite this early intervention and respondent's obvious cognitive or developmental impairments, she never received special-education services as a child.

Respondent's mother, CB, is also cognitively impaired. For many years, CB's mother lived with CB and her four children to assist in running the household. Following the grandmother's death, the family's well-being dramatically declined. In November 2011, CPS intervened and removed CB's minor children from her care. At that time, respondent (by then an adult), her boyfriend (AH), and CB's boyfriend, Steven Butler, a registered child sex offender, also lived in the home. Respondent's younger sister accused Butler of rape, but CB did not end their relationship.¹ A CPS worker advised the pregnant respondent that she would be required to make other living arrangements upon her child's birth, but CPS provided no services or assistance to the young, disabled mother.

Respondent's daughter, DH, was born on January 29, 2012.² CB subsequently threatened to evict respondent and the infant. On April 10, 2012, respondent appeared at the CPS office. She told CPS worker Cordell Huckaby that she was about to be homeless and felt overwhelmed by trying to care for two-month-old DH on her own. Huckaby reported that respondent "displayed abnormal behavior that presented concerns that she may have some untreated mental health issues." Huckaby spent more than four hours with respondent. With CB's help, Huckaby contacted various family members and friends to find housing for respondent and DH. Respondent's grandmother in Cleveland, Ohio, offered mother and baby a home, as did a local family friend. Respondent declined both placements, and the DHHS took DH into care on an emergency basis and placed her with a nonrelative.

The circuit court did not adjudicate respondent unfit for another ten months; respondent bore no fault for this delay. In the meantime, due to a series of CPS and DHHS errors, respondent was denied parenting time. Huckaby was the only official present at the initial child-protective hearings. He indicated that parenting-time sessions had to be arranged through the DHHS caseworker. However, Huckaby was uncertain of the caseworker's identity. When respondent attempted to contact the DHHS to arrange visits, her messages received no follow up.

In late October 2012, the DHHS finally assigned a caseworker, Beth Houle, who appeared willing and able to assist respondent. Houle initially had difficulty connecting with respondent, noting that "she was extremely hard to understand when she left messages." Houle arranged for supervised parenting-time sessions starting December 12, 2012.

An adjudication trial was finally conducted on January 28, 2013, and Houle created an "Updated Service Plan" for respondent. This plan was actually the first service plan provided. Despite that DH had been in care for 10 months and CPS had been involved with respondent since November 2011, no services had yet been offered. Under the January 2013 case service plan, respondent was required to undergo a psychological evaluation, participate in therapy and parenting classes, visit the child for three hours each week, earn her GED, and find employment and suitable housing. Respondent, pregnant with her second child, was then bouncing between the homes of various relatives.

Respondent gave birth to her son, EB, on February 7, 2013. An aunt offered to give respondent and the baby a home, but the DHHS deemed the placement inappropriate. Accordingly, the DHHS immediately took EB into care and placed him with his sister. At the preliminary hearing regarding EB's placement, a CPS worker, Jacqueline Baskerville, acknowledged that respondent has "emotional ... and cognitive ... issues—impairments." The February 13, 2013 petition to take EB into care recited, "According to Hutzel Hospital social worker Vernice Muldrew, [respondent] was given a psychiatric evaluation and it was determined that she should reside in an adult foster care home as she will need assistance with her daily care."

Despite the recommendation that respondent be placed in adult foster care, she found herself living in a homeless shelter upon her hospital release. During a February 19, 2013 interview with DHHS worker Joseph Emerinini, respondent expressed confusion as to why her children were in care, apparently forgetting that she had requested DH's placement. Emerinini elaborated:

[Respondent] appears to have some intellectual impairments. [Respondent] has difficulties in making decisions.... When leaving voice messages she is hard to understand, slurring words and during one message appeared to be coaxed by someone on what to say. [Respondent] only has completion of 9th grade education and has a hard time understanding simple tasks. [Respondent] ... was not able to write in complete sentences.

While respondent could read to some extent, Emerinini described her comprehension level as low.

Case notes throughout the report also revealed Houle's concerns about respondent's capacity and abilities. On February 26, 2013, Houle informed respondent's therapist, Shelita Richmond, that respondent "is in need of guidance and understanding of how to be independent and self sufficient [.]" Houle described respondent as "quiet" and as needing specific direction because she would not do anything beyond the instructions given. Houle advised the parenting-class coordinator that respondent "appears to have some cognitive delays and does not understand some things presented to her, and things need to be explained to her in simple terms."

The circuit court judge assigned to the matter also seemed to recognize respondent's impairment given the manner in which he spoke to respondent on the record. For example, at the adjudication trial in relation to EB, the court instructed:

[Respondent], you need to speak up as if you're mad at me so this nice young lady in front of me can prepare a transcript; okay?

And oh, by the way, I only eat attorneys; okay?

* * *

I'm going to ask you to do something that's really very rude. Your attorney is going to ask you questions. Could you answer them facing this nice young lady in front of me so she can prepare a good transcript of this.

The only time that respondent said anything beyond "yes" or "no" at any proceeding was at that trial. An attorney asked respondent whether she suffered from depression, and respondent indicated, "When I get around people I be mad."

Respondent was not evaluated by a psychologist and psychiatrist for purposes of the case service plan until May 2013. Before that time, and without benefit of knowledge of respondent's cognitive abilities, the DHHS referred her for parenting classes and therapy. The agency also referred respondent to Focus Hope for GED preparation classes as well as employment and job skills training with no concept of whether she could benefit from those services. Houle did note that the initiation of the various services had to be staggered because "[i]t appears that too much given to [respondent] at a time is overwhelming for her." Houle also secured the appointment of a "parent partner" for respondent. However, that individual never testified at any hearing, and the record is devoid of information regarding any assistance that person may have provided.

As noted, testing revealed that respondent had "low cognitive functioning." The psychologist reported that respondent's scores and lack of "insight" revealed that "she may be limited in her ability to independently manage more complex activities of daily living." The psychologist recommended "behavioral therapy

that utilizes in-session role-playing to address concerns." The...