                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                    UNPUBLISHED
In re TOWNSEND/LOUCKS, Minors.                                      September 27, 2016

                                                                    No. 331686
                                                                    Oakland Circuit Court
                                                                    Family Division
                                                                    LC No. 15-834763-NA


Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.

PER CURIAM.

        Respondent-mother1 appeals as of right a circuit court order terminating her parental
rights to the minor children, all of whom have special needs, pursuant to MCL 712A.19b(3)(g),
(j), and (m).2 We affirm.

                I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

        This family’s history with the Department of Health and Human Services (“DHHS”)3
dates back to 2007.4 Between 2007 and 2015, DHHS investigated 26 referrals. Three of the
referrals were classified as “moderate risk,” while the rest were opened as “high risk” cases.
Notably, six of those referrals required that DHHS provide respondent with services.
Substantiated cases included charges of physical abuse and medical neglect. In one instance,


1
  During the termination proceedings, the children’s father voluntarily released his parental
rights, and he is not a party to this appeal. Thus, we will refer to respondent-mother as
“respondent” in this opinion. Where relevant, we will refer to the child’s father as respondent-
father and both parents jointly as “respondents.”
2
   Respondent asserts that her parental rights were terminated pursuant to MCL
712A.19b(3)(b)(i), (g), and (j). However, respondent entered a plea of no contest to the statutory
bases for termination, and the allegations in the first amended petition provided the factual basis
for the plea. The first amended petition sought termination of her parental rights pursuant to
MCL 712A.19b(3)(g), (j), and (m).
3
    References to DHHS include its predecessor, the Department of Human Services (“DHS”).
4
  Respondent voluntarily released her parental rights to her oldest child in 2005 after neglect
proceedings were initiated in Oregon.


                                                -1-
respondent’s daughter, who weighed approximately six pounds at birth, required hospitalization
because she weighed only four pounds when she was three months old.

        In August 2015, Child Protective Services (“CPS”) investigated yet another neglect
referral. Caseworkers visited respondent’s home on September 1, 2015, discovering that the
family was living in deplorable conditions. The photographs contained in the lower court file
depict a home that appears uninhabitable. The carpet was extremely soiled and littered with food
and other debris. Food, clothes, garbage, and bags of trash were strewn throughout the house.
There were holes in the walls, cracked plaster, and exposed electrical wiring. Additionally, bees
and flies were present in one of the children’s bedrooms because the window was broken. The
youngest child’s Pack ‘n Play, which doubled as a crib, was filled with items, and there were no
sheets on the other children’s mattresses. The children were dirty and inappropriately dressed.
A CPS supervisor testified that “[t]he home was very chaotic,” and “[t]here was no control of the
children.” She recollected that one of the children crawled into a broken stove while the
caseworkers were visiting the home, prompting her to redirect the child when respondent failed
to do so.

       CPS immediately implemented a safety plan for the family, under which respondent was
precluded from staying in the home with the children. The family was checked into a hotel,
where they were supposed to remain for the immediate future. DHHS intended to file a petition
for removal the following morning.

      DHHS filed a petition seeking custody of the children early in the morning on September
2, 2015. Later that day, the trial court entered an interim order authorizing DHHS to
immediately take the children into protective custody.

        However, by 11:30 a.m., respondent had checked out of the hotel. Then, while she and
the children were driving, her oldest son began to have an asthma attack in the car. Respondent
decided to stop at a friend’s home so that they could eat lunch and her son could receive a
breathing treatment. According to respondent, the friend’s home was the closest location where
they could stop, but the friend was the subject of an open CPS case, which had resulted in the
removal of her children, and her home contained many asthma triggers, including smokers, dogs,
and dirt. When the breathing treatment proved unsuccessful, respondent called the doctor and
left with the children to go to the hospital. She ultimately called 911 as they were driving, but
her son died in the car en route. Bronchial asthma with complications was determined to be his
cause of death. DHHS subsequently discovered that respondent’s son should have been taking
preventative medication in addition to using a rescue inhaler at the time of the fatal asthma
attack. Further inquiry revealed that respondent had neglected to refill two of her son’s
prescriptions. As a result, her son was not taking the appropriate medication when he died.

       Later in the day on September 2, 2015, the rest of respondent’s children were removed
from her care. Ultimately, respondent’s remaining son was placed with a distant cousin who had
experience caring for autistic children, and her daughters were placed with their paternal
grandmother.




                                               -2-
        During the initial preliminary hearing on September 3, 2015, DHHS moved to amend the
petition in order to pursue termination of respondent’s parental rights. The trial court authorized
an amended petition seeking termination of respondent’s parental rights on September 10, 2015.5

        At the November 3, 2015 pretrial hearing, respondent pleaded no contest to the trial
court’s exercise of jurisdiction over the children pursuant to MCL 712A.2(b) and the statutory
grounds for termination of her parental rights. The first amended petition served as the factual
basis of her plea. Thereafter, a best-interest hearing was scheduled, and the court ordered a
psychological evaluation for respondent and her oldest child, Kadence.

       In the meantime, respondent married a man whom she originally met as an adolescent.
He came back into her life approximately a month before the children were removed from her
care. At the time, he had a criminal history and was receiving treatment for heroin use.

        At the end of a two-day best-interest hearing, the trial court issued an oral opinion from
the bench, finding that termination of respondent’s parental rights was in the children’s best
interests. The court noted that while in respondent’s care, the children lived in squalor, like feral
animals, with no parenting. It concluded that the chronic neglect had adversely affected the
children, as exhibited by their anger, hyperactivity, and developmental delays. Additionally, the
court found that the children, with their special needs, required permanency, stability, and
finality. Consistent with its opinion from the bench, the trial court issued a written order
terminating respondent’s parental rights on February 8, 2016.

                                 II. ADEQUACY OF SERVICES

        Respondent argues that DHHS failed to make reasonable efforts “to protect [her] due
process rights prior to termination” because it did not provide appropriate services in light of her
“mental deficiencies.”6 We conclude that respondent is not entitled to challenge the propriety of
the services offered on a variety of grounds.

                             A. ISSUE PRESERVATION/WAIVER



5
  Another amended petition was filed on September 17, 2015. The amendments only related to
respondent-father.
6
  Later in her brief, respondent appears to argue that she has “learning disabilities” that constitute
“mental disorders” as well as “some mental health issues.” It is noteworthy that the psychologist
who examined respondent identified no cognitive deficiencies or delays, although she noted that
respondent did not remember some pieces of information. She only perceived potential
emotional issues, characterized by a “dependence on other people.” Given this fact, as well as
the rest of the record, we conclude that this case is distinct from one involving “a parent with a
known or suspected intellectual, cognitive, or developmental impairment,” in which “neither the
court nor the DHHS may sit back and wait for the parent to assert his or her right to reasonable
accommodations.” In re Hicks/Brown, ___ Mich App ___; ___ NW2d___ (2016) (Docket No.
328870); slip op at 16.


                                                 -3-
        Although respondent has not referenced the Americans with Disabilities Act (“ADA”),
42 USC 12101 et seq., in her brief on appeal,7 she is essentially arguing that she was entitled to
reasonable accommodation, which is provided for under the ADA. In In re Terry, 240 Mich App
14, 25; 610 NW2d 563 (2000), this Court held that “the ADA does require a public agency such
as the Family Independence Agency (FIA) [now DHHS] to make reasonable accommodations
for those individual with disabilities so that all persons may receive the benefits of public
programs and services.” Thus, “the reunification services and programs provided by the FIA
must comply with the ADA.” Id. However, the Court further noted:

       Any claim that the FIA is violating the ADA must be raised in a timely manner . .
       . so that any reasonable accommodations can be made. Accordingly, if a parent
       believes that the FIA is unreasonably refusing to accommodate a disability, the
       parent should claim a violation of her rights under the ADA, either when a service
       plan is adopted or soon afterward. The Court may then address the parent’s claim
       under the ADA. Where a disabled person fails to make a timely claim that the
       services provided are inadequate to her particular needs, she may not argue that
       the petitioner failed to comply with the ADA at a dispositional hearing regarding
       whether to terminate her parental rights. [Id. at 26.]

In light of these principles, this Court concluded in In re Terry that the respondent had waived
the right to raise an issue regarding the failure to accommodate. Id. at 26 n 5. However, in In re
Frey, 297 Mich App 242; 824 NW2d 569 (2012), this Court determined that the issue was one of
preservation, stating that “ ‘[t]he time of asserting the need for accommodation in services is
when the court adopts a service plan,’ ” and noting that the respondents in that case “failed to
object or indicate that the services provided to them were somehow inadequate, thereby failing to
preserve this issue.” See also In re Hicks/Brown, ___ Mich App ___, ___; ___ NW2d___ (2016)
(Docket No. 328870); slip op at 9 (identifying the issue as one of preservation).8

       Nonetheless, the same conclusion results in this case whether we analyze this issue in
terms of whether respondent adequately preserved this issue for appeal or waived this issue
below. Respondent did not challenge the services offered or the purported lack of
accommodation until her closing argument at the best-interest hearing. Under these
circumstances, respondent’s challenge was untimely. Accordingly, she is not entitled to raise on
appeal a challenge to the adequacy of the services or accommodations offered by DHHS.

                          B. RESPONDENT’S NO CONTEST PLEA



7
  Respondent argued the application of the ADA in her closing argument at the best-interest
hearing.
8
  In In re Hicks/Brown, ___ Mich App at ___; slip op at 10, this Court stated, in dicta, “[T]he
introduction of waiver principles is misplaced because a parent who raises such an objection ‘is
not attempting to litigate the violation [of the ADA] in family court;’ rather, the parent is
challenging the evidentiary support for the termination.” (Citation omitted.)


                                               -4-
        Alternatively, respondent effectively waived this issue by entering a no contest plea to the
statutory grounds for termination alleged in the amended petition.

        Asserting a failure to accommodate is inextricably intertwined with DHHS’s duty to
make reasonable efforts to facilitate reunification. In In re Terry, 240 Mich App at 26, the Court
noted that “if the [DHHS] fails to take into account the parents’ limitations or disabilities and
make any reasonable accommodations, then it cannot be found that reasonable efforts were made
to reunite the family.” Thus, when a respondent raises a failure to accommodate, she is, in
effect, challenging whether DHHS made reasonable efforts to facilitate reunification. See also In
re Hicks/Brown, ___ Mich App at ___. However, a contention that reasonable services were not
offered ultimately relates to the sufficiency of the evidence supporting termination of parental
rights. In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005). See also In re
Hicks/Brown, ___ Mich App at ___; slip op at 6 (“The reasonableness of the efforts provided
affects the sufficiency of the evidence supporting the grounds for termination.”); id. at ___; slip
op at 10 (stating that a respondent who raises an objection on the basis of reasonable services or
accommodations is challenging the evidentiary support for termination). Accordingly, because
respondent’s challenge to the quality of services provided is ultimately an attack on the
sufficiency of the evidence offered in support of termination of her parental rights, respondent’s
no contest plea to the allegations in the petition constitutes a waiver of this challenge. Cf. In re
Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011) (stating that a respondent who pleads
no contest to the allegations in a petition has waived the right to challenge on appeal the
sufficiency of the evidence that was offered in support of termination); Terry, 240 Mich App at
26 n 5.

                                 C. ADDITIONAL GROUNDS

        Furthermore, respondent was not entitled to receive additional services in this case
because DHHS “is not required to provide reunification services when termination of parental
rights is the agency’s goal.” In re HRC, 286 Mich App 444, 463; 781 NW2d 105 (2009); see
also MCR 3.977(E). Here, because DHHS sought termination at the initial dispositional hearing,
it was not required to make reasonable efforts toward reunification. In re HRC, 286 Mich App at
463. Nevertheless, even if DHHS was required to continue to make reasonable efforts for
reunification pursuant to the court’s orders, and even if we assume that respondent is entitled to
raise this challenge on appeal,9 the record demonstrates that (1) DHHS previously expended
extensive efforts to rectify the circumstances giving rise to the numerous CPS investigations, and
(2) services in addition to those already provided were not reasonable under the circumstances



9
  “In general, when a child is removed from the parents’ custody, the petitioner is required to
make reasonable efforts to rectify the conditions that caused the child’s removal by adopting a
service plan.” In re Fried, 266 Mich App at 542, citing MCL 712A.18f(1), (2), and (4); see also
In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008). When the petitioner fails to offer services
or provide a reasonable opportunity for a respondent to participate in services, the result is a gap
in the evidentiary record that renders termination of parental rights improper. In re Mason, 486
Mich 142, 158-160; 782 NW2d 747 (2010).


                                                -5-
given respondent’s lack of improvement from the previous efforts and the fact that DHHS had
provided the most exhaustive services that it could offer.

        Respondent was repeatedly offered services in conjunction with the numerous CPS cases
that were opened between 2007 and 2015 in light of substantiated allegations of abuse and
neglect. She asserts on appeal that DHHS was required to provide additional accommodations,
as she needed “assistance beyond being given a phone number to call or a letter to follow up on.”
However, the CPS supervisor testified, and respondent reported during her psychological
examination, that she had been offered intensive in-home services through Families First, Early
On, Wraparound, and Families Together Building Solutions. Some of the in-home service
providers facilitated additional services outside the home, but respondent declined these services.
A CPS supervisor expressly confirmed that respondent had been offered the most intensive
services that DHHS could provide. Nevertheless, even though respondent completed Families
First and was in the process of completing Families Together Building Solutions in August and
September 2015, the petition for removal was filed in light of her lack of cooperation, her
unwillingness to let CPS caseworkers inside the house, and the caseworkers’ subsequent
observations of the home.

        Further, it is significant that respondent expressly testified at the best-interest hearing that
she rejected multiple services throughout her history with CPS, believing that they were “more
of a hindrance,” and only participated in services that she personally believed were beneficial.10
A CPS supervisor similarly testified that respondent had declined services on multiple occasions,
telling caseworkers that she did not want strangers in her home or that she was unwilling to
participate in some services. Respondent also told the psychologist who performed her
psychological evaluation that she believed that she needed no treatment apart from grief therapy.
She indicated that she did not “trust some of the people” and expressed a belief that some of the
services were inappropriate, as “they wanted her to do parenting classes,” while she believed that
she needed more help with her finances and obtaining a car than with her parenting skills.
Additionally, respondent told the psychologist that she was previously diagnosed with bipolar
disorder, but she stated that she disagreed with the diagnosis and did not believe that she needed
treatment for it.

        “While the DH[H]S has a responsibility to expend reasonable efforts to provide services
to secure reunification in most cases, 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 NW2d 569 (2012). When a respondent fails to adequately participate in, and benefit from,
services that are in fact provided by petitioner, she is not entitled to claim that petitioner was
required to provide additional services. See id.

                                       III. BEST INTERESTS




10
     However, according to respondent, no one explained the potential benefits of offered services.


                                                  -6-
       Next, respondent argues that the trial court clearly erred when it found that termination of
her parental rights was in the best interests of the children, maintaining that she should have been
provided additional time to work toward reunification. We disagree.

                    A. STANDARD OF REVIEW AND APPLICABLE LAW

        Pursuant to MCL 712A.19b(5), “[t]he trial court must order the parent’s rights terminated
if the [DHHS] has established a statutory ground for termination by clear and convincing
evidence and it finds from a preponderance of the evidence on the whole record that termination
is in the children’s best interests.” In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014).
We review for clear error a trial court’s best-interest determination. Id., citing MCR 3.977(K).

        “[W]hether termination of parental rights is in the best interests of the child must be
proved by a preponderance of the evidence.” In re Moss, 301 Mich App 76, 90; 836 NW2d 182
(2013).

       To determine whether termination of parental rights is in a child’s best interests,
       the court should consider a wide variety of factors that may include “the 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. [White, 303 Mich App at 713-714 (footnotes omitted); see also In re
       Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012).]

Further, among other things, a court may consider a parent’s “unfavorable psychological
evaluation,” the children’s ages, and the parent’s history. See In re Jones, 286 Mich App 126,
129; 777 NW2d 728 (2009).

                                           B. ANALYSIS

       When the children were removed from respondent’s care, they were living in squalor and
chaos. The severity of the neglect that precipitated their removal is exposed by the photos
admitted at the best-interest hearing, which depict a home that was unfit for human habitation.
Although respondent had a history with CPS that spanned nearly a decade, the family did not
come to the court’s attention until 2015. During her interactions with CPS, respondent would
make progress when she received a staggering amount of support, but she would revert to her
previous patterns of child neglect when that support faded. As a CPS supervisor testified, the
family’s history consisted of a cycle of opened and closed CPS cases. There is nothing in the
record suggesting that a different pattern would result if respondent were given another
opportunity to parent her children in this case.

         All of the children at issue in the petition were under the age of 10 at the time of the best-
interest hearing. The youngest child had recently turned two years old. Each of them has special
needs. The clinical psychologist emphasized that children with special needs require more
stability and structure than the average child, and the evidence in the lower court record confirms
that the children’s current placements were providing the stability and permanency that they
                                                 -7-
needed. The children were thriving under the care of their paternal grandmother and a distant
cousin, meeting milestones and progressing in school. Additionally, their caregivers had
expressed a commitment to permanently plan for the children in their care.

       In contrast, it is readily apparent that respondent was not in a position to provide a safe
and stable environment for her special needs children. At the time of the best-interest hearing,
respondent had been unemployed for more than 10 years and was financially dependent on her
husband. They were living in a hotel because they could not afford anything more permanent, as
the couple’s only source of income was the money earned by respondent’s husband through
occasional odd jobs “here and there.” Although respondent testified on her own behalf, she
never articulated a feasible path for reunification with her children.

        Moreover, it is clear that respondent lacked the ability to safely parent her children. A
relative reported that respondent had left her children in car seats for extended periods of time
without being fed, and that respondent would have to be reminded to feed, change, and dress the
children appropriately. School employees reported, among other things, that the children were
unbathed, that they wore clothes that did not fit or were inappropriate for the weather, and that
the children’s feet were brown from not wearing shoes and socks. There had been reports that
respondent would lay her youngest child on the ground and place food, such as chips, around
her, or feed the children by dumping a can of ravioli on a picnic table for them to pick at. Both a
neighbor and a relative reported that when her autistic son wandered from the home, respondent
would follow her son in the car and “bump” him with the vehicle to redirect him to the house,
although respondent denied this claim. CPS also received reports that the children would go
outside or leave the home without supervision.

        Further, the record shows that respondent would not be in a position to provide a stable
environment for her children in the foreseeable future. The clinical psychologist noted that
respondent had not benefited from the services that had been offered, that she lacked insight into
the needs of her children, and that she refused to participate in services based on her personal
belief that the services would not be helpful. Notably, respondent candidly admitted at the best-
interest hearing that she would not be in a position to safely parent her children for at least
another year. There also was ample evidence that respondent continued to exercise poor
judgment and make poor decisions. In the midst of the termination proceedings, she married a
man who had returned to her life in the month before the children were removed, even though
she had known him since the age of 11. Notably, this man had a criminal history, which
included a domestic violence conviction, and was currently receiving treatment for heroin abuse.
These facts demonstrate respondent’s ongoing lack of judgment, reveal that she is unable to put
her children’s needs above her own, and confirm that she did not benefit from the services
offered over the many years that she was involved with CPS, to the extent that she actually
participated.

        On this record, the trial court did not clearly err when it concluded that termination of
respondent’s parental rights was in the children’s best interests. The special needs children were
entitled to the stability and permanence required to facilitate their continued growth and
development.

                                       IV. CONCLUSION

                                                -8-
       Respondent is not entitled to challenge on appeal the level of services and
accommodations provided by DHHS. Additionally, the trial court did not clearly err in
concluding that termination of respondent’s parental rights was in the best interests of the
children.

       Affirmed.

                                                        /s/ Stephen L. Borrello
                                                        /s/ Jane E. Markey
                                                        /s/ Michael J. Riordan




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