In Re B J Phillips ( 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UNPUBLISHED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 B. J. PHILLIPS, Minor. August 24, 2023
No. 362969
Wayne Circuit Court
Family Division
LC No. 2019-000805-NA
Before: O’BRIEN, P.J., and CAVANAGH and MARKEY, JJ.
PER CURIAM.
Respondent appeals by right the trial court’s order terminating her parental rights to her
minor child, BJP, under MCL 712A.19b(3)(a)(ii) (desertion of child for 91 or more days and
custody not sought), (b)(i) (parent’s act caused physical injury or abuse), (g) (failure to provide
proper care or custody), (j) (reasonable likelihood that child will be harmed if returned to parent),
and (k)(i) (parent abused child by abandonment). We affirm.
I. BACKGROUND
Respondent is the biological mother of BJP. In April 2019, the Department of Health and
Human Services (DHHS) filed a petition seeking temporary jurisdiction over BJP. The petition
alleged that respondent neglected and physically abused BJP. BJP told a Children’s Protective
Services specialist that respondent hit him with a belt and an extension cord. The DHHS alleged
that respondent left marks on BJP by hitting him “in the head and on other parts of his body.” The
DHHS further asserted that respondent had substance abuse issues and that her drinking problem
caused her to physically abuse BJP. Additionally, the petition indicated that respondent had not
provided BJP with “adequate food, clothing, or shelter” since November 2018 and that BJP was
in his maternal grandmother’s care.
The trial court held an adjudication trial in July 2019 and concluded that it had jurisdiction
over BJP relative to respondent. The trial court then ordered respondent to follow a treatment plan.
The court directed respondent to complete parenting classes, attend individual counseling,
complete drug and alcohol screens, undergo a psychological evaluation, acquire and maintain a
legal source of income, obtain and maintain adequate housing, attend visitations with BJP, and
maintain contact with her caseworker. In August 2020, the DHHS filed a supplemental petition
seeking to terminate respondent’s parental rights, alleging that respondent neglected to care for
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BJP, that she did not have suitable housing or a legitimate source of income, that she failed to
complete her treatment plan, and that respondent had failed to maintain regular contact with the
DHHS and her foster-care worker since August 2019.
In November 2021, a termination hearing was held, and the trial court ruled that the
statutory grounds for termination were established by clear and convincing evidence under MCL
712A.19b(3)(a)(ii), (b)(i), (g), (j), and (k)(i). The court then held a best-interests hearing and found
by a preponderance of the evidence that termination of respondent’s parental rights was in BJP’s
best interests despite the fact that he was in relative placement. The trial court subsequently
entered an order terminating respondent’s parental rights to BJP. The order also provided that the
court found that “[r]easonable efforts were made to preserve and unify the family.”
II. REASONABLE EFFORTS TO REUNIFY FAMILY
On appeal, respondent argues that the DHHS failed to make reasonable efforts at reunifying
her with her child. Respondent contends that the DHHS had an obligation under the Americans
with Disabilities Act (ADA), 42 USC 12101 et seq., to ensure that respondent was not excluded
from the benefit of services offered by the DHHS and that it failed to accommodate her disability.
“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 typically 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
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); 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).
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).
A claim that a parent’s rights under the ADA were violated must be raised well before the
dispositional hearing to terminate parental rights, and the failure to do so constitutes a waiver. In
re Sanborn, 337 Mich App 252, 263 n 3; 976 NW2d 44 (2021). There is no indication in the record
that respondent raised the issue that the DHHS failed to accommodate her mental health issues;
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respondent instead makes the claim regarding the DHHS’s alleged violation of the ADA for the
first time on appeal. Thus, the issue was waived.
Furthermore, the DHHS cannot accommodate a disability of which it is unaware; therefore,
before the DHHS can be required to provide reasonable accommodations for purposes of the ADA,
the DHHS must have knowledge that the parent is disabled, either because that disability is obvious
or because the parent has informed the DHHS of the disability. In re Hicks/Brown, 500 Mich
at 87. On appeal, while respondent makes a passing reference to broadly having a “mental illness,”
she does not identify the specific nature of her disability for which the DHHS should have been
aware. The record does not reflect that the DHHS was aware of any particular disability that was
impairing respondent. Additionally, during her testimony at the termination hearing, respondent
stated that she “[does not] have a mental illness.” Therefore, because there is no evidence that the
DHHS was aware or should have been aware of any purported disability, assuming the existence
of a disability, we conclude that the DHHS was not required to make reasonable accommodations
in providing services.
Moreover, the DHHS provided respondent with reasonable reunification services. The
DHHS supplied respondent with information and services to complete her drug and alcohol
screens. The DHHS also made referrals for parenting classes and a parenting coordinator multiple
times in 2020. Respondent was additionally offered regular in-person visitations with BJP and
then via ZOOM when the COVID-19 pandemic set in. The DHHS had offered respondent bus
passes to attend the visitations. When asked if she wanted to be rereferred for any services,
respondent replied that “she has already completed her classes and she did not want re-referrals.”
Respondent was also referred to substance abuse therapy, a health clinic, and the Clinic for Child
Study. Additionally, the DHHS made several requests to assess respondent’s housing, and each
time, respondent would “den[y] it.” We note that the DHHS attempted to contact respondent
many times over the course of the proceedings, but respondent did not answer her phone and
frequently changed her number. On the occasions when respondent would attempt to contact the
DHHS, she would call from random phone numbers, and when the DHHS tried to call back, the
line would be disconnected. The DHHS could not refer her to more services without having
respondent’s phone number or permanent address. Respondent consistently failed to maintain
contact with her caseworkers as required by her treatment plan. Thus, because reunification
services were offered and respondent did not maintain any meaningful contact with the DHHS and
remained effectively unreachable throughout much of the proceedings, we conclude that the trial
court did not clearly err when it found that reasonable efforts at reunification had been made under
the circumstances.
III. BEST INTERESTS
Respondent argues that the trial court clearly erred by finding that termination was in BJP’s
best interests. In In re Mota, 334 Mich App 300, 320; 964 NW2d 881 (2020), this Court set forth
the following framework with respect to termination proceedings:
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
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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.]
Respondent does not challenge the statutory grounds for termination; therefore, the trial court’s
findings regarding the statutory grounds for termination stand. See Denhof v Challa, 311 Mich
App 499, 521; 876 NW2d 266 (2015) (stating that this Court will not grant relief when the
appealing party fails to challenge the basis of a trial court’s ruling).
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
be returned to the parents’ home within the foreseeable future, if at all. [Quotation
marks, citations, and brackets omitted.]
The DHHS presented evidence that respondent hit BJP in the face with a belt while
attempting to spank him. Additionally, respondent admitted to having anger management issues.
Specifically, in June 2020, respondent got into an altercation with her boyfriend and broke several
windows of his home. Respondent admitted to drinking half a bottle of tequila before the fight.
She also conceded that she has a “temper” and will hit anyone who “come[s] in [her] face.” Thus,
we conclude that BJP would be placed at risk of harm in respondent’s care, making it in the child’s
best interests to terminate respondent’s parental rights.
BJP has lived with his maternal grandmother since he was an infant, and his grandmother
directly took care of BJP since the beginning of the proceedings. Although placement with a
relative generally weighs against termination, we agree with the trial court that termination was
nonetheless necessary in order to provide the child with permanency and stability. See In re Mota,
334 Mich App at 321 (a child’s placement with relatives is a factor that the trial court is required
to consider when making its best-interests determination, and a child’s placement with relatives
weighs against termination). Respondent attended one visitation during the first year of the
proceedings and failed to visit BJP throughout the remainder of the proceedings.
Additionally, respondent only completed one drug and alcohol screening since her
treatment plan was ordered in 2019. While respondent testified at the termination hearing that she
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had a source of income, she refused to give any details about her job to the DHHS or to provide
the DHHS with proof of her earnings. At the most recent hearing, BJP’s caseworker testified that
respondent told her that she is unemployed. Likewise, while respondent claimed to have suitable
housing, she failed to notify the DHHS of the address of her apartment until during the termination
hearing, which spanned several days. And when the DHHS then attempted to complete an
assessment of respondent’s housing, it was denied entry by respondent. Further, although
respondent allegedly found independent housing, she also testified that she was still living with
her boyfriend. Respondent had since 2019 to work on her treatment plan but only began to make
efforts to complete it immediately before the termination hearing commenced. Under these facts,
we conclude that the trial court did not clearly err by finding that it was in BJP’s best interests for
respondent’s parental rights to be terminated.
We affirm.
/s/ Colleen A. O’Brien
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
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