              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                                                                     UNPUBLISHED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 BAM/JT, Minors.                                                July 11, 2019

                                                                     No. 346310
                                                                     Ingham Circuit Court
                                                                     Family Division
                                                                     LC No. 17-000175-NA


Before: M. J. KELLY, P.J., and MARKEY and GLEICHER, JJ.

PER CURIAM.

        The circuit court terminated respondent-mother’s rights to her minor children, BAM and
JT, pursuant to MCL 712A.19b(3)(b) (child abuse), (c)(i) (conditions leading to adjudication
continue to exist); (g) (failure to provide proper care or custody); and (j) (reasonable likelihood
of harm if returned to parent). Respondent contends that the Department of Health and Human
Services (DHHS) did not accommodate her cognitive disability when providing services, and
that insufficient evidence supported the statutory grounds for termination. We discern no error
and affirm.

                                        I. BACKGROUND

        Respondent is no stranger to Child Protective Services (CPS). In September 2014, CPS
substantiated an improper supervision and physical neglect report involving her care of BAM.
She received services. In July 2017, the DHHS took then 4½-year-old BAM and one-year-old
JT into care based on allegations that respondent’s live-in boyfriend (and JT’s father), ST, had
physically abused BAM. BAM reported that ST hit him hard on the side of his head.1 The child
suffered severe bruising to his face, neck, and ear. Respondent insisted that she had accidentally
hit BAM with a door and has never acknowledged the abuse perpetrated by ST, although she
later conceded that she sometimes “smacked” BAM out of “frustration.” The DHHS sought
jurisdiction on the theory that respondent failed to protect BAM from abuse. The children were



1
    The court also terminated ST’s parental rights to JT. ST has not appealed.



                                                 -1-
initially placed in a nonrelative foster home but were eventually placed with their maternal
grandmother.

         Psychological testing revealed that respondent is cognitively impaired and largely
illiterate.   Despite her disability, respondent maintained employment throughout these
proceedings. Recognizing her impairment, the caseworkers read the case service plan and all
documentation to respondent and gave her additional time to ask questions.

        The psychological report also indicated that respondent was easily frustrated and was at
“high risk” to commit child abuse. To address this concern, respondent was referred to and
completed a parenting class. Respondent also was directed to participate in individual
counseling, which she did sporadically. She stopped attending counseling before the termination
hearing. At some point, respondent and ST separated. However, several individuals reported
observing respondent and ST together and respondent told the children’s foster parents and
others that she planned to reunite with ST once she regained custody of her children.

       Respondent also reported using marijuana to control pain. The court-ordered case service
plan required respondent to cease marijuana use and participate in substance abuse therapy, but
respondent chose instead to secure a medical marijuana card. Midway through the proceedings,
respondent committed to sobriety, attended counseling, and provided a series of clean drug
screens. On the eve of the termination hearing, however, respondent tested positive for
marijuana and missed other screens, which were considered positive.

       Furthermore, midway through these proceedings respondent was evicted from her home.
By the time of the termination hearing, respondent remained homeless and was moving from
“couch to couch.”

        To respondent’s credit, she faithfully participated in supervised parenting time with her
children. The caseworker who supervised the visits testified, however, that respondent never
provided food for the children despite that the visits occurred at dinner time. When the children
complained of being hungry, respondent told them that she only had enough money to buy
cigarettes and food for herself. The psychological evaluation report recommended a one-on-one
parenting-time coach, but the DHHS delayed several months in providing this service. As a
result, respondent was provided this service for only a month before the termination hearing.
The court finally appointed a guardian-ad-litem for respondent at that time as well. The
parenting-time coach noted that respondent implemented her suggestions and was showing
benefit from the sessions.

                                 II. REASONABLE EFFORTS

        Respondent argues that the DHHS failed to make reasonable efforts to reunify her with
her children by failing to evaluate more fully the extent and nature of her intellectual disability
and by delaying her referral to supportive visitation as recommended in her psychological
evaluation.

        Absent extenuating circumstances, the DHHS must make reasonable efforts toward
reunification before a court may contemplate termination of a parent’s rights. MCL
712A.19a(2). Moreover, to comply with the Americans with Disabilities Act, the DHHS must
                                                -2-
make reasonable modifications to services to accommodate a parent’s special needs. The
absence of accommodation precludes a finding that reasonable efforts were made. In re
Hicks/Brown, 500 Mich 79, 86; 893 NW2d 637 (2017). “The adequacy of the [DHHS]’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). However, a respondent has a
commensurate responsibility to cooperate and participate in the services, and also to demonstrate
benefit. In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014). “[A] parent, whether
disabled or not, must demonstrate that she can meet [her children’s] basic needs before they will
be returned to her care.” In re Terry, 240 Mich App 14, 28; 610 NW2d 563 (2000).

        Respondent has cited no authority for her proposition that the DHHS was required to
secure additional testing beyond the psychological evaluation to assess respondent’s special
needs and the level of specialized services she required. The psychological evaluation revealed
that respondent was cognitively impaired and the caseworkers personally observed respondent’s
literacy deficit. The DHHS accommodated respondent by reading documents to her, giving
additional verbal instruction, and providing ample time for questions and explanations. Further
evaluation was neither necessary nor required.

        We are concerned by the delay in providing respondent with a recommended supportive
parenting-time coach. Child protective proceedings must be handled swiftly to protect the rights
of parents and children, allowing no room for months-long delays in providing necessary
services. However, we agree with the circuit court that earlier provision of this service would
not have changed the outcome of this case. Respondent’s inappropriate discipline of BAM was
only one concern in this case and it was the only issue addressed through this supportive service.
The parenting-time coach would not have assisted respondent overcome her substance abuse and
emotional issues. The coach also would not have assisted respondent with leaving her unhealthy
relationship with ST or in finding new housing. Accordingly, we discern no ground for relief.

                                  III. STATUTORY GROUNDS

         Respondent also argues that the petitioner failed to present clear or convincing evidence
to support the statutory grounds underlying the termination decision. Pursuant to MCL
712A.19b(3), a circuit court “may terminate a parent’s parental rights to a child if the court finds,
by clear and convincing evidence” that at least one statutory ground has been proven by the
DHHS. MCR 3.977(A)(3); In re Trejo, 462 Mich 341, 350; 612 NW2d 407 (2000). The court’s
termination decision followed the filing of a supplemental petition. When termination is sought
in a supplemental petition based on new grounds, the DHHS must present legally admissible
evidence in support. In re DMK, 289 Mich App 246, 258; 796 NW2d 129 (2010). We review
for clear error a circuit court’s factual finding that a statutory termination ground has been
established. Rood, 483 Mich at 90-91. “A finding of fact is clearly erroneous if the reviewing
court has a definite and firm conviction that a mistake has been committed, giving due regard to
the trial court’s special opportunity to observe the witnesses.” In re Moss, 301 Mich App 76, 80;
836 NW2d 182 (2013) (quotation marks and citation omitted). “Clear error signifies a decision
that strikes us as more than just maybe or probably wrong.” In re Williams, 286 Mich App 253,
271; 779 NW2d 286 (2009).



                                                -3-
         The trial court terminated respondent’s parental rights pursuant to MCL 712A.19b(3)(b),
(c)(i), (g), and (j), which provided at all relevant times:

       (b) The child or a sibling of the child has suffered physical injury or physical or
       sexual abuse under 1 or more of the following circumstances:

              (i) The parent’s act caused the physical injury or physical or sexual abuse
       and the court finds that there is a reasonable likelihood that the child will suffer
       from injury or abuse in the foreseeable future if placed in the parent’s home.

               (ii) The parent who had the opportunity to prevent the physical injury or
       physical or sexual abuse failed to do so and the court finds that there is a
       reasonable likelihood that the child will suffer injury or abuse in the foreseeable
       future if placed in the parent’s home.

               (iii) A nonparent adult’s act caused the physical injury or physical or
       sexual abuse and the court finds that there is a reasonable likelihood that the child
       will suffer from injury or abuse by the nonparent adult in the foreseeable future if
       placed in the parent’s home.

       (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.

                                             * * *

       (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.

                                             * * *

       (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.

        Termination of respondent’s parental rights under factor (b) was supported as respondent
failed to protect BAM from physical abuse perpetrated by ST and never acknowledged that ST
had been abusive. Respondent did admit during the proceedings that she had hit her child out of
frustration and worked toward avoiding future abuse with counseling and, finally, a parenting-
time coach. However, respondent never acknowledged ST’s part in the abuse and expressed her
intent to reunite with ST when she regained custody of her children. Accordingly, BAM and JT


                                                -4-
faced a reasonable likelihood of further harm if returned to respondent’s care. This evidence
therefore supported termination under factor (j) as well.

        Termination is supportable under factor (c)(i) when “the totality of the evidence amply
supports that [the parent] had not accomplished any meaningful change in the conditions” that
led to the court taking jurisdiction over the minor, Williams, 286 Mich App at 272, and “there is
no reasonable likelihood that the conditions will be rectified within a reasonable time
considering the child’s age.” MCL 712A.19b(3)(c)(i). The main conditions leading to
adjudication were the abuse in respondent’s home, respondent’s substance abuse, and
respondent’s mental health issues. Respondent displayed insufficient benefit from services to
overcome these obstacles to reunification. Respondent attended individual therapy only
sporadically and discontinued the service before the termination hearing. Accordingly, she did
not adequately address her mental health issues or develop strategies to avoid abusive behavior
or to protect her children from abuse. Instead of immediately ceasing marijuana use pursuant to
the court’s order, respondent secured a medical marijuana card. Respondent briefly stopped
using marijuana mid-proceedings and provided a series of clean drug screens, but reverted to use
of the substance on the eve of termination. She therefore did not rectify this condition, either.

        Respondent blames her slow progress and lack of benefit on her cognitive impairment
and the delayed provision of accommodated services. Respondent’s cognitive impairment did
not prevent her from continuing her participation in the services provided, however. Had she
continued with substance abuse counseling and individual therapy, these proceedings may have
resulted more favorably.

        Supporting termination under factor (g) was respondent’s loss of housing during the
proceedings and her financial inability to bring food for her children to parenting-time sessions.
Given that the cognitively impaired respondent worked only 20 to 25 hours each week, and
likely at a minimum-wage job, we find it unlikely that she was financially able to provide proper
care and custody for her children. The court improperly relied upon this factor in terminating
respondent’s parental rights. As the court need find only one statutory ground to support
termination, however, reversal is not warranted.

       We affirm.



                                                            /s/ Michael J. Kelly
                                                            /s/ Jane E. Markey
                                                            /s/ Elizabeth L. Gleicher




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