            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                                                                    UNPUBLISHED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 VUOCOLO Minors.                                               January 23, 2020

                                                                    Nos. 349237; 349238
                                                                    Arenac Circuit Court
                                                                    Family Division
                                                                    LC No. 18-013862-NA



Before: CAMERON, P.J., and SHAPIRO and SWARTZLE, JJ.

PER CURIAM.

        In these consolidated appeals, respondents appeal as of right the trial court’s orders
terminating their parental rights to their minor children under MCL 712A.19b(3)(c)(i), (c)(ii),
(g), and (j). For the reasons set forth below, we affirm.

                                       I. BACKGROUND

        In April and May 2018, Children’s Protective Services (CPS) investigated a report of
substance abuse and domestic violence in the home where respondents and their two children
lived. On three separate visits, the CPS workers found the home in a “deplorable” condition,
with piles of clothing, toys, trash, and other items throughout the house and on the staircase. The
trial court asserted jurisdiction based on respondents’ pleas of admission, largely relating to the
condition of the home. The trial court ordered respondents to complete psychological
evaluations, participate in therapy and other rehabilitative services, and establish suitable
housing. Neither respondent made substantial progress. Respondent-mother was offered
mental-health treatment and prescribed medications to treat her serious mental illness, but she
failed to attend various appointments and did not consistently take her prescribed medications.
Respondent-father tested positive for illegal substances. He claimed to be self-employed, but
failed to document his income. Because of respondents’ lack of progress with their treatment
plans, petitioner filed a supplemental petition to terminate their parental rights. Following a
hearing in May 2019, the trial court granted the petition and terminated both respondents’
parental rights to the minor children.

        This appeal followed. Neither petitioner nor the minors’ guardian ad litem has appeared
in these consolidated cases or filed a brief in support of the termination of rights.


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                                          II. ANALYSIS

                                    A. DOCKET NO. 349237

        In his sole issue on appeal, respondent-father argues that the trial court improperly
exercised jurisdiction with respect to him because his admissions offered in support of his plea
did not establish factual support for a finding of jurisdiction. This argument is without merit.

        After the trial court exercised jurisdiction pursuant to respondent-father’s plea of
admission, respondent-father never moved to withdraw his plea or otherwise challenge the trial
court’s exercise of jurisdiction. Therefore, this issue is unpreserved. This Court reviews for
plain error unpreserved “adjudication errors raised after the trial court has terminated parental
rights.” In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019).

        Pleas of admission or no contest are governed by MCR 3.971. “The court shall not
accept a plea of admission or of no contest without establishing support for a finding that one or
more of the statutory grounds alleged in the petition are true, preferably by questioning the
respondent unless the offer is to plead no contest.” MCR 3.971(D)(2). Petitioner sought
jurisdiction under MCL 712A.2(b)(1), which provides that a trial court has jurisdiction over a
minor whose parent, “when able to do so, neglects or refuses to provide proper or necessary
support . . . or other care necessary for his or her health or morals, who is subject to a substantial
risk of harm to his or her mental well-being, who is abandoned by his or her parents . . . or who
is without proper custody or guardianship.”

        Although respondent-father argues that our Supreme Court’s decisions in In re Ferranti
and In re Mitchell, 485 Mich 922; 773 NW2d 663 (2009), support his request for appellate relief,
those cases involved respondents who failed to enter pleas knowingly because they were not
adequately advised of their rights or the consequences of their pleas. In this case, respondent-
father does not challenge the adequacy of the trial court’s advice of rights or the advice regarding
the consequences of his plea. Instead, he argues that his admissions offered at the plea hearing
did not establish a factual basis for finding a statutory ground for jurisdiction. Therefore, In re
Ferranti and In re Mitchell are inapposite.

       Respondent-father’s admissions pertained to the deplorable conditions of the home in
which the children were living. The trial court admitted photographs of the home into evidence
at the plea hearing. Respondent-father does not dispute that the conditions of the home as
depicted in the photographs showed that the children were not receiving proper care, nor does he
dispute that the conditions in the home support a finding of jurisdiction under MCL
712A.2(b)(1). Instead, respondent-father claims that his factual admissions did not support a
finding of jurisdiction because he stated that he was not personally present at the home on May
3, 2018. Respondent-father argues that he could not have knowingly neglected his children
because he lacked personal knowledge of the conditions in the home. This argument is without
merit.

       The trial court understood that respondent-father denied having personal knowledge of
the condition of the house on May 3, 2018, and it further understood that his admission was
based on the photographs of the home taken that day. Respondent-father did not argue at the

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plea hearing, and he does not argue on appeal, that the photos were inaccurate or that he was
unable to identify the family home from the photos. Moreover, respondent-father’s plea of
admission was also based on the condition of the home on April 26, 2018. Respondent-father
did not deny having personal knowledge of the condition of the home on that date, and he
admitted that the condition of the home on that date was “unacceptable.”

        Respondent-father also argues that the trial court should have known that he could not
have had personal knowledge of the condition of the home on May 3, 2018 because the same
judge who accepted his plea had previously issued a personal-protection order that prevented
him from having contact with respondent-mother, and therefore prevented him from being
present in the home. MCR 3.971(D)(2) does not require a trial court to ascertain independently
the credibility of a respondent’s admissions offered in support of a plea. Having admitted that
the photographs accurately represented the condition of the home on April 26, and having agreed
that the home was in “unacceptable condition,” respondent-father cannot now impeach his own
admissions on the ground that the trial court should have scrutinized the accuracy and
truthfulness of his admissions more closely.

        Moreover, MCR 3.971(D)(2) requires the trial court to establish support “for a finding
that one or more of the statutory grounds alleged in the petition are true, preferably by
questioning the respondent.” (Emphasis added.) Therefore, the trial court was not limited to
respondent-father’s answers in finding that the statutory grounds alleged in the petition were
true. Respondent-father’s admissions, coupled with photographic evidence and respondent-
father’s agreement that the children were living in a home that was in an “unacceptable
condition,” were sufficient to support a finding that a statutory basis for jurisdiction existed
under MCL 712A.2(b)(1). Notably, when considering admissions offered in support of a plea, a
factual basis for the plea will exist if an inculpatory inference can be drawn from what the
witness admitted, even if an exculpatory inference can also be drawn. See People v Fonville,
291 Mich App 363, 377; 804 NW2d 878 (2011). Accordingly, the trial court did not err in
relying on respondent-father’s admissions to find a factual basis for exercising jurisdiction over
the children.

                                   B. DOCKET NO. 349238

                               1. REUNIFICATION SERVICES

        Respondent-mother argues that petitioner failed to comply with its statutory duty under
MCL 712A.19a(2) to provide reasonable services to reunify her with her children. She also
claims that petitioner violated the Americans with Disabilities Act (ADA), 42 USC 12101 et
seq., by failing to provide services to accommodate her mental illness. Because respondent-
mother did not raise any issue involving services in the trial court or otherwise challenge the
adequacy of services provided, the claims are not preserved for appellate review. In re Frey, 297
Mich App 242, 247; 824 NW2d 569 (2012). We review unpreserved claims of error for plain
error affecting substantial rights. In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412
(2011).

       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). The ADA does, however, require

                                               -3-
petitioner to accommodate a disabled parent reasonably in the provision of services to achieve
reunification and avoid termination of parental rights. In re Hicks, 500 Mich 79, 86; 893 NW2d
637 (2017). Petitioner’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. Id. at 85-86. Failure to make reasonable efforts toward
reunification may prevent petitioner from establishing statutory grounds for termination. In re
Newman, 189 Mich App 61, 65-68; 472 NW2d 38 (1991). But if a parent is simply unable to
meet the needs of her child, then “the needs of the child must prevail over the needs of the
parent.” In re Terry, 240 Mich App at 28 (cleaned up).

        The record discloses that petitioner was aware of respondent-mother’s mental illness and
understood that her condition presented a barrier to reunification. Petitioner therefore included
mental-health treatment as part of respondent-mother’s treatment plan. Despite petitioner’s
efforts to provide mental-health treatment, respondent-mother’s compliance with this treatment
was poor. She did not consistently attend her appointments. Moreover, petitioner arranged for a
psychological evaluation that might have provided additional information on respondent-
mother’s treatment options, but she failed to complete the evaluation. She also did not follow
her prescribed medication regimen, and instead attempted to self-medicate with an herbal
substance. Respondent-mother does not identify any additional services that she believes
petitioner could have offered to improve her likelihood of succeeding at reunification. Although
she states that petitioner should have given her more time to make progress, she does not offer
any estimate of how much time she needed. Her request for an open-ended treatment period
when she showed no commitment to following the treatment plan in place ignores the needs of
her children. For these reasons, respondent-mother has not demonstrated that petitioner failed to
comply with its statutory obligation to make reasonable efforts at reunification, or that its
provision of services on account of her mental illness violated the ADA.

                         2. EFFECTIVE ASSISTANCE OF COUNSEL

        Respondent-mother also argues that her trial counsel was ineffective for failing to object
to the adequacy of services and request further accommodation of her mental illness, and for
failing to pursue civil-commitment proceedings to force her to undergo treatment. “The
principles applicable to claims of ineffective assistance of counsel in the arena of criminal law
also apply by analogy in child protective proceedings.” In re Martin, 316 Mich App 73, 85; 896
NW2d 452 (2016). Accordingly, because respondent-mother did not raise the issue of
ineffective assistance of counsel or request a Ginther hearing in the trial court, our review of this
issue “is limited to mistakes apparent from the record.” People v Heft, 299 Mich App 69, 80;
829 NW2d 266 (2012). To establish ineffective assistance of counsel, “it must be shown that (1)
counsel’s performance was deficient, falling below an objective standard of reasonableness, and
that (2) the deficient performance prejudiced the respondent.” In re Martin, 316 Mich App at 85.

       As indicated earlier, the record discloses that mental-health treatment was part of
respondent-mother’s treatment plan. The evidentiary record is silent regarding what additional
accommodations might have improved respondent-mother’s opportunity to achieve reunification
with her children. Although respondent-mother argues that her counsel was ineffective for not
pursuing involuntary commitment, the record is silent regarding whether there was a factual


                                                -4-
basis for involuntary hospitalization under MCL 330.1434. Accordingly, there is no basis for
finding that either of these alleged omissions constituted an objectively unreasonable error.




                                             -5-
Affirmed.




                  /s/ Thomas C. Cameron
                  /s/ Douglas B. Shapiro
                  /s/ Brock A. Swartzle




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