In Re T Wheeler Minor ( 2023 )

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UNPUBLISHED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 T. WHEELER, Minor. May 18, 2023
No. 363485
Kent Circuit Court
Family Division
LC No. 21-050154-NA
Before: MARKEY, P.J., and MURRAY and FEENEY, JJ.
PER CURIAM.
In this case arising from a child protective proceeding, respondent-mother appeals by right
the trial court’s opinion and order terminating her parental rights to her minor child. The trial court
terminated respondent’s parental rights to her son under MCL 712A.19b(3)(c)(i), (g), (i), and (j).
On appeal, respondent argues that the Department of Health and Human Services (Department)
failed to provide her with reasonable services designed to reunify her with the child, and she
suggests that the Department should have taken additional steps to accommodate her intellectual
disability. She also impliedly asserts that the trial court clearly erred when it found that the
Department established the grounds for termination and that termination was in the child’s best
interests. Because we conclude that respondent fails to establish any errors that warrant relief, we
affirm.
I. REASONABLE EFFORTS
A. PRESERVATION
We first address respondent’s claims that the Department did not make reasonable efforts
to reunify her with the child and did not provide her with adequate accommodations under the
Americans with Disabilities Act (ADA), 42 USC 12101 et seq. To preserve a challenge premised
on the adequacy of the services provided by the Department, a respondent must object to the case
service plan or assert that the plan is inadequate when the court adopts the plan or soon thereafter.
See In re Atchley, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket Nos. 358502 and
358503); slip op at 2. Likewise, a claim that the Department failed to make accommodations
consistent with the ADA must be raised in a timely fashion. In re Terry, 240 Mich App 14, 26
n 5; 610 NW2d 563 (2000).
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Respondent did not object to the case service plan generally or challenge the nature of the
accommodations that the Department made in light of her diagnoses. She did indirectly assert that
she should have been given in-person instruction on a gastrostomy tube (G-tube) instead of video
or Facetime instruction. But she did not frame that contention as a challenge to the
accommodations provided by the Department; rather, her lawyer suggested that in-person
instruction would have better served respondent’s needs. Respondent argued that the evidence
demonstrated that she could have provided adequate medical care for her child through alternate
means, such as bringing him to a clinic each week for his infusions. This argument called into
question whether the evidence supported the trial court’s termination ruling, but it did not amount
to a challenge to the reasonableness of the services or accommodations. Respondent also did not
assert that the Department failed to comply with the ADA. Therefore, we conclude that respondent
did not preserve a challenge to the adequacy of the Department’s case service plan, nor did she
preserve an argument that the Department failed to comply with the ADA.
B. STANDARD OF REVIEW
This Court reviews de novo whether the trial court properly interpreted and applied the
relevant statutes and court rules. In re Ferranti, 504 Mich 1, 14; 934 NW2d 610 (2019). This
Court reviews for clear error a trial court’s factual findings. In re Gonzales/Martinez, 310 Mich
App 426, 430; 871 NW2d 868 (2015). A trial court’s finding is clearly erroneous when, on the
entire record, this Court has the definite and firm conviction that the trial court made a mistake.
Id. at 430-431. Finally, this Court reviews claims of error that were not properly preserved for
appellate review for plain error affecting the parent’s substantial rights. In re Utrera, 281 Mich
App 1, 8-9; 761 NW2d 253 (2008). A plain error will only warrant relief if it affected the outcome
of the proceeding or if it seriously affected the fairness, integrity, or public reputation of the judicial
proceeding. Id. at 9.
C. ANALYSIS
The Department normally has an affirmative duty to make reasonable efforts to reunify a
respondent with his or her child before seeking the termination of parental rights. See 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 Department 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 Department had to give respondent a reasonable time to make
changes and benefit from the plan. In re Mason, 486 Mich 142, 159; 782 NW2d 747 (2010).
“[E]fforts at reunification cannot be reasonable under the Probate Code if the Department has
failed to modify its standard procedures in ways that are reasonably necessary to accommodate a
disability under the ADA.” In re Hicks/Brown, 500 Mich at 86. The parent bears the burden to
show that he or she would have fared better with the accommodation. See In re Fried, 266 Mich
App 535, 543; 702 NW2d 192 (2005).
As a preliminary matter, the Department argues that it had no obligation to make reasonable
efforts to reunify respondent with the child because the trial court earlier terminated respondent’s
rights to another child, and respondent had not rectified the conditions that led to that termination.
See MCL 712A.19a(2)(c) (stating that reasonable efforts to reunify a child and parent need not be
made when the “parent has had rights to the child’s siblings involuntarily terminated and the parent
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has failed to rectify the conditions that led to that termination of parental rights”). The record
reflects that the trial court terminated respondent’s rights to the other child on grounds that were
similar to those at issue with the child involved in this case. Respondent failed to provide the child
in the earlier case with proper care for her special needs, engaged in unhealthy relationships that
jeopardized her ability to care for that child, and had issues with her emotional stability.1
Accordingly, we conclude that the Department had no obligation to provide reunification services
because there was record evidence that respondent had not rectified the conditions that led to the
prior termination by the time the Department petitioned to remove the child at issue in this case.
In any event, the record established that the Department made reasonable efforts.
Dr. Robert J. Baird diagnosed respondent in relevant part with borderline intellectual
functioning. Dr. Baird indicated that some parents with intellectual challenges of that nature can
safely parent. He suggested that the Department should first ensure that respondent had the ability
to develop and retain new skills. If she could not demonstrate such ability, Dr. Baird wrote, “there
should be reservation in placing the child in her custody.” Dr. Baird also summarized the nature
of services that would best help respondent. He suggested that the Department use “verbal
instruction; task analysis; illustrations; role play and behavioral rehearsal; modeling; discussion;
peer-to-peer discussion; feedback; and reinforcement.”
The Department’s caseworkers applied Dr. Baird’s suggestions for the services provided
to respondent in the case involving her first child. The Department’s original caseworker created:
a binder for respondent with visual aids, role-playing models, simplified versions of the case
service plan, a list of every provider involved, which included their contact information and their
role, and handouts discussing her child’s care and medical needs. She stated that a similar binder
included respondent’s homework involving child milestones and bonding strategies. The
caseworker also referred respondent to classes that used modeling and role-playing to give
respondent a better opportunity to acquire the skills necessary to care for the child. She met with
respondent frequently and provided her with another binder that had a color-coded calendar to help
her keep her scheduled appointments. The caseworker additionally called and reminded
respondent of appointments.
The caseworker assigned to the instant case, Sarah Murphy, also followed Dr. Baird’s
recommendations from the inception of the case. Murphy testified that she gave respondent
“monthly to-do lists” and calendars to help her remember her tasks and appointments. She also
provided respondent with “picture diagrams” of the child’s exercises and illustrated handouts
explaining his medical needs. Murphy gave respondent written summaries of the Department’s
expectations in addition to a copy of the case service plan and spoke to the other service providers
about respondent’s cognitive limitations. And the other service providers utilized various
techniques—including easy reader—to accommodate respondent.
The child had special needs that made it imperative that respondent benefit from the
services, and there is no indication in the record that the accommodations were insufficient to
1
See In re Wheeler, unpublished per curiam opinion of the Court of Appeals, issued May 21, 2020
(Docket No. 350939); slip op at 1-2.
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allow respondent to benefit from the services provided to her. The child had been diagnosed with
hemophilia B and had microdeletion syndrome. The syndrome is a rare congenital disease that
causes low growth, intellectual deficits, and autism. Doctors surgically implanted a port into the
child to allow for weekly infusions to treat his hemophilia. The port had to be kept sterile, or the
child could develop a life-threatening infection. Also, because the child also had problems
swallowing and retaining food, doctors had to implant a G-tube to assist with feeding.
In order to safely parent the child, respondent had to master the care and use of the implants.
She also had to learn about the other care needs unique to the child. On appeal, respondent faults
the Department for failing to provide her with additional services involving the care and use of the
infusion port. More specifically, she contends that the Department should not have allowed
different nurses to teach her on different occasions because, in her view, if she had been provided
a lone teacher, she would have mastered the handling and care of the child’s infusion port. The
trial court disagreed and found that, under the facts of this case, “having the same nurse really
would not have affected the outcome.” The record supports the trial court’s finding.
Murphy testified at an earlier hearing and opined that the nursing staff at the clinic had
done a very good job of accommodating respondent’s needs when training her on the care and use
of the infusion port. She believed that they did an excellent job of breaking the procedures down
to a level that could easily be understood, giving respondent notes on the process. Murphy stated
that respondent was not learning in part because the child distracted her at times. For that reason,
the staff asked that the child no longer be present, which Murphy arranged. Murphy opined that
she could not see how the staff could have done a better job to accommodate respondent in learning
the procedure. At yet another hearing, Murphy indicated that the hemophilia clinic normally
trained a person over three sessions, but respondent still had not been able to meet the minimum
requirements after six sessions. By the time of the termination hearing, respondent had been going
to the clinic for several months and still had not learned how to perform the infusion on a dummy
without guidance and prompting.
The evidence showed that the nursing staff broke the procedure down into easily
understood steps, provided respondent with hands-on instruction, and gave her written notes on
the process. The staff repeated the training for far more than the normal three sessions—indeed,
it provided her with training over several months—and yet respondent still did not master the care
and use of the infusion port. On this record, we are not left with a definite and firm conviction that
the trial court was mistaken when it found that respondent would not have benefited by having the
same nurse teach her at each of those many sessions.
Respondent also maintains that it was not necessary for her to master the care and use of
the infusion port because she could still meet the child’s needs by bringing him to the clinic and
having the staff perform the infusions. But there was testimony that, although respondent could
take the child to the clinic each week for his medicine, there were times when the medicine had to
be administered on an emergency basis. Respondent would not be able to administer the medicine
during an emergency, so she would have to take the child to the hospital. Moreover, there was
testimony that in the past she had not demonstrated an ability to immediately get the child to the
hospital. Given that the child will need his medication indefinitely, it was reasonable for the trial
court to conclude that respondent’s inability to learn how to use and care for the child’s infusion
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port constituted evidence that respondent would not be able to provide the child with the medical
care that he needed. See In re Terry, 240 Mich App at 28.
To be sure, there was testimony by a nurse that respondent had participated in services, had
demonstrated the ability to meet some of the child’s medical needs, and had shown that she could
keep doctor’s appointments. But there was also evidence that she had not demonstrated sufficient
skills to adequately care for the child’s unique medical needs. The trial court was in the best
position to resolve any conflict in the evidence, see In re Miller, 433 Mich 331, 344; 445 NW2d
161 (1989); MCR 2.613(C); MCR 3.902(A), and it found that respondent would not be able to
safely meet the child’s medical needs. The trial court did not clearly err in that regard.
Respondent similarly argues that the Department should have offered her in-person
services to teach her how to use and care for the child’s G-tube. The Department’s caseworker
sent respondent videos on the proper use of the G-tube and offered to have the child’s foster mother
demonstrate the appropriate care and use of the G-tube via Facetime.2 Respondent refused those
services and requested in-person training. Respondent could not refuse a service merely because
she was of the opinion that a different service would better serve her needs; she had the obligation
to participate in the services provided. See In re Frey, 297 Mich App 242, 248; 824 NW2d 569(2012). Respondent’s refusal to participate in the services was evidence that she was unable or
unwilling to learn how to care for the child’s medical needs. See In re Terry, 240 Mich App at 28.
Respondent has not identified any additional services that the Department should have
provided her that would have made a difference in the outcome. See In re Fried, 266 Mich App
at 543. Therefore, she has not identified any plain errors involving the ADA or the Department’s
reasonable efforts. See In re Utrera, 281 Mich App at 8-9. Moreover, the record revealed that the
Department accommodated respondent’s special needs and provided her with services that were
reasonably calculated to reunify her with the child. In sum, we hold that the trial court did not
clearly err when it found that the Department made reasonable efforts at reunification.
II. STATUTORY GROUNDS FOR TERMINATION AND BEST INTERESTS
A. STANDARD OF REVIEW AND GOVERNING PRINCIPLES
In In re Mota, 334 Mich App 300, 320; 964 NW2d 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
2
Murphy explained to respondent that the child’s feeding schedule did not align with respondent’s
parenting-time schedule, making in-person training on use of the G-tube impossible.
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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.]
B. GROUNDS FOR TERMINATION
The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(c)(i), (g),
(i), and (j), which authorize termination under the following circumstances:
(c) The parent was a respondent in a proceeding brought under this chapter,
182 or more days have elapsed since the issuance of an initial dispositional order,
and the court, by clear and convincing evidence, finds either of the following:
(i) The 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.
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(g) The parent, although, in the court’s discretion, financially able to do so,
fails to provide proper care or custody for the child and there is no reasonable
expectation that the parent will be able to provide proper care and custody within a
reasonable time considering the child’s age.
* * *
(i) Parental rights to 1 or more siblings of the child have been terminated
due to serious and chronic neglect or physical or sexual abuse, and the parent has
failed to rectify the conditions that led to the prior termination of parental rights.
(j) There is a reasonable likelihood, based on the conduct or capacity of the
child’s parent, that the child will be harmed if he or she is returned to the home of
the parent.
On appeal, respondent does not directly challenge the trial court’s findings that the
Department established these grounds to terminate her parental rights. As such, this Court may
presume that the trial court did not clearly err by finding that the unchallenged statutory grounds
were established by clear and convincing evidence. In re JS & SM, 231 Mich App 92, 98-99; 585
NW2d 326 (1998), overruled in part on other grounds by In re Trejo, 462 Mich 341, 353 n 10; 612
NW2d 407 (2000). Nevertheless, respondent has not shown that the trial court clearly erred with
respect to any of the statutory grounds.
Respondent’s inability to master the proper care and use of the child’s infusion port and
her refusal to participate in the services designed to show her how to care for and use the child’s
G-tube demonstrated that she could not safely meet the child’s medical needs. There was also
evidence that respondent more generally lacked insight into the child’s medical needs and how to
meet those needs.
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Respondent suggests that the trial court should not have faulted her with respect to an
incident in which the child had a temperature of 105 degrees after returning from a visitation with
respondent. She essentially blames the Department for that incident because the Department
should not, in her view, have allowed the child to participate in parenting time with a fever. She
claims that none of the child’s other caregivers noticed the fever. There was, however, no evidence
that the Department or anyone else knew that the child had a fever before the parenting-time visit.
There was, by contrast, evidence that respondent realized that the child was warm during the visit,
told no one, and took no steps to verify whether he might have a temperature over 101 degrees.
The medical staff had taught respondent that she needed to be aware of the child’s
temperature and informed her that she had to take him to the emergency room whenever his fever
exceeded 101 degrees because an infection could be fatal. Respondent’s failure to follow the
proper procedure for addressing a fever was reminiscent of her earlier failure to address a cut and
bruise that the child suffered. Medical professionals advised respondent that every cut had to be
screened for internal bleeding, yet respondent did not call to have the child screened for internal
bleeding when a cut occurred simply because the cut had stopped bleeding externally. The
evidence that respondent did not take any steps to respond to signs that the child had a fever
permitted an inference that respondent still did not fully appreciate the level of vigilance required
for the child’s care and continued to ignore the advice of medical professionals, which was one of
the factors that led to the adjudication. The trial court did not clearly err when it inferred from the
incident involving the fever that respondent had not overcome the concerns that led to the
adjudication.
Respondent also complains that the trial court only found that she could not attend to the
child’s medical needs on the basis of this one incident regarding the fever. That complaint is not
well taken. There was testimony that respondent was distracted at doctor’s appointments and spent
more time playing with the child than engaging with the doctors. Indeed, the distractions were
such that the nursing staff at the clinic asked that respondent attend classes without the child. There
was also evidence that Murphy provided respondent with binders so that she could keep all her
medical papers in order and take notes. Despite that effort, respondent chose not to bring the
binders to appointments and brought her own notepads, which she did not use. That evidence
suggested that respondent would not fully engage in future appointments. Respondent needed to
demonstrate that she could fully engage with medical personnel at appointments. Her inability to
do so suggested that she was unlikely to acquire the knowledge and skills from these appointments
to provide the child with proper medical care.
Respondent also argues that the trial court should not have faulted her for her failure to
maintain or use the binders. She explains that she could have accessed the same information
digitally through the medical providers’ electronic charting, so she did not need binders.
Respondent cites no evidence that she had been able to successfully use the digital charting system
as an alternate to paper records and notes. Rather, as the trial court correctly noted, there was
evidence that respondent needed personal intervention to remind her of appointments and
procedures even though there were digital reminders. When considered together with the evidence
that respondent failed to master the care and use of the infusion port, refused to utilize the learning
materials to master the care and use of the G-tube, failed to properly respond to the indicia that the
child had a fever, and was distracted at appointments, the evidence that respondent did not make
use of the binders and did not take notes at appointments was evidence that she would be unable
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to profit from doctors’ appointments. On the record before it, the trial court did not clearly err
when it found that respondent’s limitations continued to pose a barrier to her ability to learn how
to properly care for the child’s medical needs notwithstanding the reasonable efforts provided to
her.
Respondent also faults the trial court for finding that she would put her new child’s needs
ahead of those of the child at issue. There was testimony that respondent consistently attended the
child’s medical appointments until the birth of her new child. Thereafter, her attendance dropped
precipitously. Respondent also did not visit the child during his last two emergency room visits
because she had to feed the new baby. Furthermore, there was testimony that respondent chose
not to visit her son during his surgery even though she was already at the hospital visiting her new
baby. Similarly, respondent struggled to divide her time between the new baby and her son during
parenting-time visits. The evidence supported the trial court’s finding that respondent would be
unable to properly prioritize her time so as to provide her son with the necessary medical care
while also parenting the new child.
Respondent additionally contends that the trial court was mistaken in its findings that she
still had barriers to reunification related to her decisions involving relationships, her emotional
stability, and her ability to maintain proper housing. The trial court found it noteworthy that
respondent had selected another partner who interjected instability into her life at a time when the
child needed a stable parent. The court felt that this was evidence that respondent was following
the same pattern that she had followed in the past relative to relationships. Although the court
believed that respondent had made some progress in this area, it nevertheless concluded that
respondent’s relationship choices remained a barrier.
There was evidence that respondent had a tense relationship with her previous partner, who
was also her son’s father. Although the relationship did not involve physical violence, it
nevertheless interfered with respondent’s ability to parent the child. Respondent abruptly ended
that relationship to enter into a relationship with her current partner, which jeopardized her son’s
welfare. Respondent was also apparently pregnant with the new partner’s child during the breakup
of her previous relationship. The change in relationships caused instability for respondent, her
partners, and the child. Respondent also gave up her Section 8 housing to move in with the new
partner. Further, the new partner had a history with children’s protective services and admitted to
having mental-health issues, but he refused to participate in counseling or other services. There
was also evidence that respondent’s new partner had engaged in behaviors that had previously
triggered emotional outbursts from respondent. The totality of the evidence indicated that
respondent lacked insight into how her relationship choices affected her ability to parent and her
children’s welfare. The trial court did not clearly err when it found that respondent’s continued
poor relationship choices—when considered with other factors—constituted a barrier to
reunification.
The trial court was further correct when it found that respondent had not shown that she
could provide stable housing for the child. As already discussed, respondent gave up stable and
appropriate housing in order to move in with her new partner. That evidence was itself sufficient
to permit an inference that she lacked the ability to make reasonable choices about housing. In
addition to that evidence, there was evidence that even though respondent had been provided with
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services to teach her how to maintain her home, she allowed the new home to become cluttered.
The new home also had problems with the flooring that posed a trip hazard.
Clutter and defects in the flooring might not be a concern for a normal child, but, as the
trial court aptly noted, respondent’s son is a medically fragile child with a severe form of
hemophilia. He also had developmental disabilities and stability issues. Taken together, the child
was at heightened risk of severe injury from a fall. The evidence that respondent made poor
choices that adversely affected her housing, and that she was unable or unwilling to go extra
lengths to ensure that her home was as safe as it could be given her son’s needs, demonstrated that
she had not benefited from the services regarding housing. The trial court, therefore, did not
clearly err when it found that housing remained a barrier to reunification.
Finally, although there was evidence that respondent had made progress on her emotional
stability, there was also evidence that respondent still struggled with regulating her emotions.
Respondent maintains that even if there were evidence that she continued to have some problems
with emotional stability, that evidence did not support termination because there was no indication
that her emotional outbursts were a risk to her son. There was testimony, however, that respondent
opposed medical procedures for her son on emotional grounds rather than on the basis of medical
advice. There was also testimony that her emotional outbursts interfered with her ability to work
with others for her son’s benefit. Accordingly, although reasonable persons might differ about the
weight and credibility of the evidence, there was sufficient evidence to support the trial court’s
finding that respondent’s emotional stability remained a barrier.
Respondent fails to establish that any of the trial court’s findings involving the grounds for
termination were clearly erroneous. The trial court’s individual findings about the continued
barriers proved that respondent had not rectified the conditions that led to the adjudication. They
also supported the conclusion that there was no reasonable likelihood that she could rectify the
conditions within a reasonable time considering the child’s age. Therefore, the trial court did not
clearly err when it found that the Department proved by clear and convincing evidence grounds to
terminate respondent’s parental rights to the child under MCL 712A.19b(3)(c)(i). Those same
findings also supported the trial court’s determinations that the Department established the
remaining statutory grounds for termination. In sum, we conclude that respondent has not shown
that the trial court clearly erred when it found that the Department proved by clear and convincing
evidence that the grounds for termination existed.
C. 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
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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
be returned to the parents’ home within the foreseeable future, if at all. [Quotation
marks, citations, and brackets omitted.]
Respondent does not challenge the trial court’s best-interest findings in her statement of
the questions presented, and she does not adequately argue and analyze that particular claim of
error. Accordingly, respondent has abandoned any claim that the trial court’s findings regarding
the child’s best interests were clearly erroneous. See In re Rippy, 330 Mich App 350, 362 n 5; 948
NW2d 131 (2019).
In any event, the trial court did not clearly err when it found that termination was in the
child’s best interests. The evidence showed that the child had a strong bond with respondent. That
bond, however, did not outweigh the child’s significant medical needs. The child’s safety required
a caregiver who could provide him with consistent, constant, and informed care in a safe setting.
The evidence revealed that the child had been placed with a family that included his half-sister and
caregivers who were ready, willing, and able to provide him with the care that he so desperately
needs. The record reflected that respondent would not be able to provide that care within a
reasonable time, if ever. Under the circumstances, the child’s need for permanence and stability
outweighed the bond that he had with his mother. The record supported the trial court’s best-
interest finding, and we are not left with a definite and firm conviction that the trial court erred. In
short, we hold that reversal is unwarranted.
We affirm.
/s/ Jane E. Markey
/s/ Christopher M. Murray
/s/ Kathleen A. Feeney
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