            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                                                                    UNPUBLISHED
                                                                    April 11, 2019
In re A. V. WILSON and A. A. WILSON, Minors.

                                                                    Nos. 345686; 345688
                                                                    Wayne Circuit Court
                                                                    Family Division
                                                                    LC No. 15-521401-NA


Before: LETICA, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

PER CURIAM.

        In these consolidated appeals,1 respondent-mother appeals by right the trial court’s orders
terminating her parental rights to her minor children, AA and AV, under MCL 712A.19b(3)(c)(i)
(conditions that led to adjudication continue to exist) and (g) (failure to provide proper care and
custody). We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Petitioner filed a petition for removal of AA in 2015, alleging improper supervision,
physical neglect, and threatened harm. The petition alleged that respondent-mother was the
victim of multiple instances of domestic violence at the hands of Denoloeus Buchanan, her
boyfriend and the father of AV, which included several severe assaults and an incident in which
Buchanan had pushed respondent–mother down the stairs while she was holding AA. The
petition also alleged that Buchanan had set fire to respondent-mother’s home while it was
unoccupied. Notwithstanding these incidents, respondent-mother had allowed Buchanan back in
the home and had remained in a relationship with him. Respondent-mother was pregnant with
AV at the time the petition was filed.



1
  See In re Wilson Minor, unpublished order of the Court of Appeals, issued October 17, 2018
(Docket Nos. 345686, 345688). The parental rights of the fathers of the children were
terminated in the same order, but neither has filed an appeal.



                                               -1-
         Respondent-mother appeared for the initial preliminary hearing on December 3, 2015,
but left abruptly during the proceedings. The hearing continued the following day, but
respondent-mother did not appear; testimony from a friend of respondent-mother indicated that
respondent-mother was attempting to avoid petitioner and was “on the run.” The hearing was
postponed to allow for efforts to locate respondent-mother and AA. Respondent-mother did not
appear at the continued preliminary hearing on December 9, but Lisa Johnson, a Child Protective
Services (CPS) specialist, testified that she had made contact with respondent-mother and that
respondent-mother had surrendered AA, who was placed in a licensed foster home. Johnson
testified that respondent-mother was no longer living with Buchanan. The trial court authorized
the petition, and later took jurisdiction over AA following an adjudication bench trial in February
2016. Respondent-mother was ordered to comply with a treatment plan, including attending
parenting classes, domestic violence therapy and individual therapy with a domestic violence
component, obtaining suitable housing and legal income, maintaining contact with petitioner,
psychological and psychiatric evaluation if needed, and infant mental health services.
Respondent-mother was granted supervised parenting time.

        AV was born in March 2016. Petitioner filed a petition for removal the following day,
citing AA’s removal as well as the fact that respondent-mother had tested positive for marijuana
while pregnant with AV. The trial court authorized the petition and placed AV in foster care,
with supervised parenting time. AV was later adjudicated and respondent-mother was ordered to
comply with the treatment plan already in place for AA.

         Over the next two years, respondent-mother made some progress on her treatment plan,
but never achieved full compliance. Petitioner filed a supplemental petition seeking to terminate
respondent-mother’s parental rights to both children. The petition alleged that respondent-
mother had completed parenting classes, but had failed to benefit from them and had refused to
attend additional classes that were offered. Respondent-mother had been dismissed from
individual therapy twice for non-attendance. After several referrals, respondent-mother had
completed domestic violence counseling, but had nonetheless returned to a relationship with her
abuser, Buchanan; in fact, she had become pregnant and had given birth to another child,
possibly by Buchanan.2 The petition also stated that respondent-mother had completed
psychological and psychiatric evaluations that showed her IQ to be 76. The petition also stated
that an infant mental health specialist had provided individual therapy to respondent-mother and
had worked with respondent-mother and the children during visitations for 18 months, but
respondent-mother did not benefit from the service, lacked parenting skills, and had not
developed a bond with AA and AV. Respondent-mother had been receiving “supported
visitation” services, in which a counselor would teach lessons in parenting skills, and make sure
that respondent-mother understood those lessons and implemented them during visitation;
however, she was terminated from this program for failing to participate, and had missed 19
scheduled parenting time visits. The petition noted that, during parenting time visits, respondent-
mother failed to demonstrate adequate parenting skills, yelled at the children, could not soothe or


2
 This child is currently the subject of child custody proceedings in the trial court, and is not a
party to this appeal.


                                                -2-
calm them when they became upset, and failed to bring necessary supplies for the children.
Respondent-mother had never verified her income.

         Respondent-mother failed to appear for a pretrial hearing on May 21, 2018, and petitioner
was unaware of her whereabouts. Respondent-mother also failed to appear for the termination
hearing on June 18, 2018. Jeremy Smith, respondent-mother’s new foster care specialist,
testified that he had been assigned to respondent-mother’s case on April 18, 2018, but had been
unable to locate respondent-mother until two weeks before the termination hearing. Smith
testified that, according to petitioner’s records, respondent-mother had last participated in
parenting time on April 3, 2018, and had not seen AA and AV since then. Smith testified that
respondent-mother did complete portions of her treatment plan, but frequently did not benefit
from services that she did complete, such as parenting classes. Smith testified that, due to
respondent-mother’s “borderline intellectual functioning,” as revealed by the psychological
evaluation, she was offered extra services such as a parent partner, supportive visitation, and
infant mental health services; however, Smith testified that these extra services did not improve
respondent-mother’s behavior or parenting skills. Smith testified that respondent-mother
stopped participating in most services after her third child was born in November 2017.

       The termination hearing continued on July 30, 2018. Respondent-mother did not appear,
and Smith had not been able to locate her; nor had respondent-mother had any contact with AA
and AV. Respondent-mother’s attorney also testified that he was unable to locate or contact
respondent-mother.

        The trial court found that statutory grounds for termination had been proven under
MCL 712A.19b(3)(c)(i) (conditions that lead to adjudication continue to exist) and (g) (failure to
provide proper care and custody), noting that respondent-mother had returned to respondent-
father despite the risk of domestic violence. The trial court also found that, despite two years or
more having passed since AA’s and AV’s adjudications, respondent-mother had not completed
her treatment plan to the extent that it would be proper to return AA and AV to her care, in spite
of the extra services offered by petitioner. The trial court also held that termination was in the
children’s best interests, noting their young ages and their need for permanency and stability, as
well as the fact that they were placed with non-relative foster parents who were interested in
adoption. The trial court found that no bond existed between the children and respondent-
mother. The trial court entered orders terminating respondent-mother’s parental rights to both
children.

       This appeal followed.

                                 II. STANDARD OF REVIEW

        We review de novo issues of statutory interpretation as questions of law. In re LE, 278
Mich App 1, 18; 747 NW2d 883 (2008), abrogation on other grounds recognized by In re Long,
___ Mich ___, ___; ___ NW2d ___ (2018) (Docket No. 344326), slip op at 5-6. “Whether the
[Americans with Disabilities Act (ADA), 42 USC 12101 et seq.] has any effect on termination of
parental rights proceedings . . . presents a question of law that [this Court] review[s] de novo.”
In re Terry, 240 Mich App 14, 23-24; 610 NW2d 563 (2000). However, an issue is unpreserved
for appeal if it is not raised before, addressed, or decided by the trial court. In re TK, 306 Mich

                                                -3-
App 698, 703; 859 NW2d 208 (2014). We review unpreserved issues for plain error affecting
substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). An error affects
substantial rights when prejudice is caused, meaning, the error affected the outcome of the
proceedings. Id. at 8-9.

        The trial court must find that a statutory ground for termination is established by clear
and convincing evidence. In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016)
(citations omitted). We review for clear error a trial court’s determination that a statutory ground
exists for termination. Id. at 409. See also MCR 3.977(K). We also review for clear error the
trial court’s findings of fact supporting its termination decision, including the finding that
reasonable efforts towards reunification were made. LE, 278 Mich App at 18. The trial court’s
findings of fact “may be set aside only if, although there may be evidence to support them, the
reviewing court is left with a definite and firm conviction that a mistake has been made.” LE,
278 Mich App at 18.

                                         III. ANALYSIS

       Respondent-mother argues that the trial court erred by terminating her parental rights,
because petitioner failed to reasonably accommodate her under the ADA.3 We disagree. A
respondent must challenge in the trial court the adequacy of services provided by petitioner to
preserve the issue for appeal. In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). Here,
respondent-mother argues for the first time on appeal that petitioner failed to provide reasonable
accommodations to her based on her intelligence level and learning disability. Because
respondent-mother failed to challenge the services provided by petitioner, this issue is not
preserved for appeal. Frey, 297 Mich App at 247.

       Before a court may consider termination of a respondent’s parental rights where the
permanency plan is adoption, petitioner must make reasonable efforts to reunite the family.
MCL 712A.19a(2). “The adequacy of [petitioner’s] efforts to provide services may bear on
whether there is sufficient evidence to terminate a parent’s rights.” In re Rood, 483 Mich 73, 89;
763 NW2d 587 (2009). “While [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.” Frey, 297 Mich App at 248.

        Respondent-mother argues that petitioner “failed in its duty to make reasonable efforts at
reunification under MCL 712A.19a(2).” Respondent-mother specifically asserts that petitioner
failed in its duty to make reasonable efforts towards reunification by failing to provide her with
reasonable accommodations under the ADA. However, this Court has held that a respondent’s



3
  While there is much discussion in this opinion of respondent being a victim of domestic
violence, this appeal is on the basis of whether there were reasonable accommodations made for
respondent under the ADA. We are fully aware that being a victim of domestic violence is not a
reason, in and of itself, to terminate parental rights. In re Plump, 294 Mich App 270, 273; 817
NW2d 119 (2011).


                                                -4-
failure to raise the issue of petitioner’s possible violation of the ADA when a treatment plan is
adopted, or shortly thereafter, waives appellate review of that issue:

               Any claim that the [family independence agency (FIA)] is violating the
       ADA must be raised in a timely manner, however, 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 petitioner failed to
       comply with the ADA at a dispositional hearing regarding whether to terminate
       her parental rights. In such a case, her sole remedy is to commence a separate
       action for discrimination under the ADA. At the dispositional hearing, the family
       court’s task is to determine, as a question of fact, whether petitioner made
       reasonable efforts to reunite the family, without reference to the ADA.

               In the present case, respondent did not raise a challenge to the nature of
       the services or accommodations offered until her closing argument at the hearing
       regarding the petition to terminate her parental rights. This was too late in the
       proceedings to raise the issue. The time for asserting the need for accommodation
       in services is when the court adopts a service plan, not at the time of a
       dispositional hearing to terminate parental rights. [Terry, 240 Mich App at 26-27;
       see also id. at n 5 (“Any claim that the parent’s rights under the ADA were
       violated must be raised well before a dispositional hearing regarding whether to
       terminate her parental rights, and the failure to timely raise the issue constitutes a
       waiver.”).]

        Respondent-mother failed to raise this claim when her treatment plan was adopted, or
shortly thereafter, or after her psychological, psychiatric, or neurological evaluations were
performed, or at any point in the proceedings below. Therefore, this issue is waived on appeal.
Id. at 27. Nonetheless, even if we did not find that respondent-mother waived this issue, we
would find no error requiring reversal in petitioner’s efforts at reunification or accommodation
under the ADA.

        The ADA defines “disability” as “[a] physical or mental impairment that substantially
limits one or more of the major life activities of such individual.” 28 CFR 35.108(a)(1)(i).
Respondent-mother identifies her mental health disability as a “learning disability,” but fails to
indicate how it substantially limits any of her major life activities. Moreover, the record does not
support her claim that petitioner failed to reasonably accommodate her intelligence level.

        In In re Hicks/Brown, 500 Mich 79, 83; 893 NW2d 637 (2017), the respondent’s parental
rights were terminated, and she argued on appeal that the petitioner, Department of Health and
Human Services (DHHS), did not make reasonable efforts at reunification because it failed to
accommodate her intellectual disabilities. The respondent participated in the service plan
provided by DHHS, but her attorney later argued that the services did not meet her needs. Id. at
84. Throughout the proceedings, her attorney inquired about the efforts of DHHS to get services

                                                -5-
through an outside agency to accommodate respondent’s disability, but the respondent never
received these services. Id. After the respondent’s parental rights were terminated, she
appealed, arguing that the reunification efforts of DHHS did not accommodate her disability as
required by the ADA. Id. at 84-85. Our Supreme Court noted that, under the Michigan Probate
Code, DHHS has a duty to make reasonable efforts to reunify a family before terminating
parental rights. Id., citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). DHHS also has
obligations under the ADA, which requires that “ ‘no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such
entity.’ ” Hicks/Brown, 500 Mich at 86, quoting 42 USC 12132. The Supreme Court thus
concluded that “efforts 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.” Hicks/Brown, 500 Mich at 90. The Court ultimately
held that the trial court in that case had erred by failing to consider whether DHHS had failed to
attempt to secure services tailored to respondent’s disability from outside agencies, vacated the
termination order, and remanded to the trial court for consideration of whether DHHS had
accommodated the respondent’s disability in its reunification efforts. Id. at 91.

        Under Hicks/Brown, DHHS is required to reasonably accommodate a parent’s disabilities
in its reunification efforts before termination. Id. at 85. However, the facts of this case are
distinguishable from Hicks/Brown, and demonstrate that petitioner made reasonable efforts to
accommodate respondent-mother’s mental health issues in its efforts of reunification before
termination. In Hicks/Brown, DHHS received information from medical professionals that the
respondent would benefit from tailored services through an outside organization, but did not
provide those services. Id. at 89-90. Here, respondent-mother was provided with multiple
opportunities to comply with services tailored to meet her mental health needs.

        Respondent-mother’s psychological evaluation indicated that respondent-mother’s IQ
score was 76, in the fifth percentile, and in the borderline range of intellectual functioning.
Because respondent-mother exhibited signs of traumatic brain injury, including confusion and
memory loss, a neurological evaluation and a psychiatric evaluation were recommended. It was
also recommended that respondent-mother continue in individual counseling, domestic violence
counseling, and parenting classes. Respondent-mother completed a psychiatric evaluation, and it
was recommended that she undergo a neurological evaluation due to her possible brain injury,
and to participate in individual therapy, domestic violence classes, and supportive therapy.
Respondent-mother completed the neurological evaluation, and, although she had some memory
issues, the result was “within normal limits.” None of the evaluations diagnosed respondent-
mother with a “learning disability.”

        Petitioner provided several specialized services to respondent-mother based on her
evaluation results, but she did not benefit from these services. Frey, 297 Mich App at 248. In
November 2016, she was provided with a parent partner, but did not initially contact the parent
partner to begin the program. Respondent-mother had completed the parent partner program by
June 2017, but failed to develop proper parenting skills. Petitioner then recommended
supportive visitation, but respondent-mother failed to benefit from this program as well. Infant
mental health services were provided during visitation, but, again, respondent-mother did not
benefit from them because her parenting skills did not improve. When additional parenting
                                                -6-
classes were recommended based on the results of her psychological and psychiatric evaluations,
she declined them. Respondent-mother ultimately ceased participation in all services after the
birth of her third child.

        We conclude, on this record, that the trial court did not err by determining that
respondent-mother had failed to “take advantage of the additional services offered” and had
“failed to address her mental health needs despite the provision of specialized services.”
Petitioner made reasonable efforts to accommodate respondent-mother’s specific needs by
recommending that she complete the appropriate evaluations, and then by referring her for the
services recommended from the evaluation results. Hicks/Brown, 500 Mich at 85. However,
respondent-mother did not fully participate in the services, and did not benefit from them. See
Frey, 297 Mich App at 248. Therefore, the trial court did not err by determining that petitioner
made reasonable efforts toward reunification, including specialized services to meet respondent-
mother’s needs. Rood, 483 Mich at 89; LE, 278 Mich App at 18.

        We note that, while respondent-mother states in her brief on appeal that “[t]he
undersigned submits that clear and convincing evidence warranting termination under
[MCL 712A.19b(3)(c)(i) and (g)] was not presented,” she provides no analysis regarding the
statutory grounds for termination, apart from her argument concerning reasonable efforts and her
bare quotation of the statutory subsections. Respondent-mother’s failure to properly brief this
issue on appeal constitutes abandonment of the issue. In re JS & SM, 231 Mich App 92, 98; 585
NW2d 326 (1998), overruled on other grounds by In re Trejo, 462 Mich 341, 353 (2000),
superseded in part by statute on other grounds as recognized in In re Moss, 301 Mich App 76, 83
(2013). In any event, there was sufficient support in the record for the trial court’s determination
that statutory grounds for termination had been proven, and we find no clear error. Schadler,
315 Mich App at 408; LE, 278 Mich App at 18.

       Affirmed.



                                                             /s/ Anica Letica
                                                             /s/ Amy Ronayne Krause
                                                             /s/ Mark T. Boonstra




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