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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

UNPUBLISHED

In re A. M. BROWN, Minor. January 16, 2018

No. 339171

Ingham Circuit Court

Family Division

LC No. 16-000344-NA

Before: MURPHY, P.J., and SAWYER and BECKERING, JJ.

PER CURIAM.

Respondent appeals as of right from an order terminating her parental rights with respect 

to her child under MCL 712A.19b(3)(c)(i), and (3)(g). We affirm.

On March 7, 2016, petitioner alleged that conditions existed to cause the child to come 

within the court’s jurisdiction under MCL 712A.2(b)(1) and (b)(2). The child was born three 

months premature (on January 7, 2016), and respondent admitted that she lacked the ability to 

provide necessities for the child, and that she had a mild intellectual disability and other 

personality disorders. Additionally, respondent did not have a suitable housing environment for 

the child. 

Respondent’s initial barriers to reunification were emotional stability, parenting skills, 

housing, and employment, and her services program included a psychological evaluation, case 

management, the Kevin Moody House (a program that aids with independent living and job 

skills, and provides counseling services for housing and financial matters), a Community Mental 

Health wellness program, and other wellness programs. Respondent had also received a list of 

local subsidized housing resources, received assistance with applying for emergency housing 

funds, and received transportation to Volunteers of America to apply for housing assistance. 

Respondent also received assistance in applying for cash assistance and food stamps, and she

received transportation to job interviews. 

Respondent left the Kevin Moody House after about two months, and while she was 

there, she struggled to meet expectations, stayed out late, and did not complete her work. 

Respondent began supportive visitation with Child and Family Charities on July 19, 2016, and 

her caseworker observed compliance and improvements in her parenting sessions after 

completing the program. Respondent was also referred to Willow Tree for parenting classes on 

April 14, 2016, but did not follow through, and she was referred for parenting classes with Cristo 

Rey on February 9, 2017, but failed to attend. Respondent’s caseworker explained that 
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respondent needed additional classes “because after she completed it she started becoming 

inconsistent in her parenting times.” Respondent missed a total of 35 of 90 parenting visits. 

Respondent was referred for substance abuse assessments which she did not attend, and 

she missed 65 drug screens between June 2, 2016 and April 2017, testing positive eight times for 

marijuana, and also for cocaine on other occasions. Respondent failed to maintain contact with 

her caseworker and was also untruthful at times, and further failed to obtain suitable housing 

throughout the proceedings. 

The trial court concluded that the services provided to respondent were appropriate but 

that she elected not to continue participation in them. The court found that respondent made 

progress at times, but overall, that clear and convincing evidence supported termination of 

parental rights under MCL 712A.19b(3)(c)(i), and (3)(g). 

I. REASONABLE EFFORTS TOWARD REUNIFICATION

Respondent argues that petitioner was aware of respondent’s intellectual disability, was 

obligated to modify its procedures to accommodate such, and failed to make reasonable efforts 

toward reunification. We note that this issue is unpreserved because respondent failed to raise a 

challenge to the services when the court adopted the case service plan. In re Terry, 240 Mich 

App 14, 27, 610 NW2d 563 (2000) (“[t]he 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.”). Unpreserved issues are reviewed for plain error affecting a 

substantial right. Rivette v Rose-Molina, 278 Mich App 327, 328; 750 NW2d 603 (2008). 

Forfeiture under the plain error rule is avoided where (1) error occurred; (2) the error was clear 

or obvious; and (3) the error affected substantial rights. People v Carines, 460 Mich 750, 763; 

597 NW2d 130 (1999), citing United States v Olano, 507 US 725, 731; 113 S Ct 1770; 123 L Ed 

2d 508 (1993). “The third requirement generally requires a showing of prejudice, i.e., that the 

error affected the outcome of the lower court proceedings.” 460 Mich at 763. 

“Generally, 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 HRC, 286 Mich App 444, 462; 781 NW2d 105 (2009). “Reasonable efforts 

to reunify the child and family must be made in all cases except those involving aggravated 

circumstances . . . .” In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010) (internal quotation 

marks omitted, emphasis in original). In In re Hicks, 500 Mich at 86, the Court stated:

Absent reasonable modifications to the services or programs offered to a 

disabled parent, the Department has failed in its duty under the [Americans with 

Disabilities Act, 42 USC 12101 et seq (“ADA”)] to reasonably accommodate a 

disability. In turn, the Department has failed in its duty under the Probate Code to 

offer services designed to facilitate the child’s return to his or her home, see MCL 

712A.18f(3)(d), and has, therefore, failed in its duty to make reasonable efforts at 

reunification under MCL 712A.19a(2). As a result, we conclude 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. 
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Respondent relies on In re Hicks and In re Newman, 189 Mich App 61; 472 NW2d 38 (1991),

for the general proposition that petitioner did not make enough of an effort to achieve 

reunification considering respondent’s intellectual disability. 

In Newman, this Court recognized that parents with a limited intellectual capacity may 

need “hands-on” instruction. In re Newman, 189 Mich App at 66. In Hicks, the Supreme Court 

most recently ordered a remand in a termination matter that similarly involved an intellectually 

disabled parent. In re Hicks, 500 Mich at 82-83, 91. The respondent similarly relinquished 

custody of her children because she could not care for them, and she continued to inconsistently 

participate in the services made available to her. Id. at 83-84. The respondent continuously 

inquired throughout the proceedings about whether she would receive a service plan through the 

Neighborhood Services Organization (“NSO”) to accommodate her intellectual disability, and 

the request was never granted. Id. at 84. After the trial court ordered termination, the respondent 

appealed to this Court, arguing that the petitioner’s reunification efforts failed to accommodate 

her intellectual disability as required under the ADA. Id. In addition to determining that the 

issue was preserved for appeal, this Court concluded on the merits that because “the case service 

plan never included reasonable accommodations to provide respondent a meaningful opportunity 

to benefit,” the [petitioner] had “failed in its statutory duty to make reasonable efforts to reunify 

the family unit.” Id. at 85, quoting In re Hicks, 315 Mich App 251, 269-271; 890 NW2d 696 

(2016). 

Here, unlike in Hicks, respondent never requested specific or accommodated services. 

The trial court recognized at a dispositional hearing that there was “a mild intellectual disorder,”

noting that “it doesn’t appear to affect her ability to function” and that “she could be an effective, 

appropriate parent” “as long as she receives treatment.” The court then concluded that 

“reasonable efforts are being made.” At the termination hearing, the court did not directly speak 

to whether reasonable efforts towards reunification had been made.

Respondent’s case service plan is quite distinguishable from that in Hicks, in that it did 

not entirely omit specific services to provide reasonable accommodations for respondent’s 

intellectual disability. The record indicates that petitioner determined that respondent’s mild 

intellectual disorder did not affect her ability to function as a parent, and that she could be an 

effective and appropriate parent. Thus, respondent’s intellectual disability was not a barrier to 

reunification as long as she participated in the services available to her. 

In Hicks, however, the Court did not seem concerned with petitioner’s assessment of the 

significance of the parent’s intellectual disability, but appeared concerned with the 

accommodations made available. See In re Hicks, 500 Mich at 86. It follows that it is the 

presence of the intellectual disability that necessitates reasonable accommodations, and not the 

significance of the impairment. See id. 

Although the record does not indicate that during the course of the proceedings 

respondent ever requested specific accommodations as did the respondent in Hicks, respondent’s 

case service plan included programs through Community Mental Health (CMH), and 

additionally, the Kevin Moody House program was tailored to address the impairments 

respondent may have suffered as a consequence of her intellectual disability, i.e., it provided 

services directed at building independent living skills and job skills, and it provided counseling 
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services in financial matters. Respondent was also involved in a supportive visitation program. 

She also received Gateway Services, and services through the Wellness Program, the Wellness 

RN Program, and the Wellness Client’s Service Specialist Program. 

There is little in the record to explain the details of these services and how they were 

responsive to respondent’s intellectual impairment. However, we note that respondent’s 

impairment was mild and not regarded as a significant barrier to reunification. While a better 

record could have been made of the accommodations made for respondent and the services 

provided respondent, and a better record would likely have been made had respondent raised this 

issue below, respondent has failed to establish plain error with respect to the accommodated 

services provided. 

II. STATUTORY GROUNDS FOR TERMINATION

It is not clear whether respondent is also arguing that the trial court clearly erred in 

determining that the statutory grounds had been established to terminate respondent’s parental 

rights. However, we find no error.

This Court reviews a circuit “court’s decision that a ground for termination has been 

proven by clear and convincing evidence” for clear error. In re Williams, 286 Mich App 253, 

271; 779 NW2d 286 (2009). “A decision qualifies as clearly erroneous when, ‘although there is 

evidence to support it, the reviewing court on the entire evidence is left with the definite and firm 

conviction that a mistake has been made.” Id., quoting In re JK, 468 Mich 202, 209-210; 661 

NW2d 216 (2003). This Court gives “due regard to the trial court’s special opportunity to 

observe the witnesses.” In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004). 

Clear and convincing evidence creates “in the mind of the trier of fact a firm belief or 

conviction as to the truth of the allegations sought to be established, evidence so clear, direct and 

weighty and convincing as to enable [the fact-finder] to come to a clear conviction, without 

hesitancy, of the truth of the precise facts in issue.” In re Martin, 450 Mich 204, 227; 538 NW2d 

399 (1995). The “[e]vidence may be uncontroverted,” but fall short of clear and convincing. Id. 

“Conversely, evidence may be clear and convincing despite the fact that it has been 

contradicted.” Id. (internal quotations omitted).

Parents have a due process interest in the “companionship, care, custody, and 

management of their children.” In re JK, 468 Mich at 210. “To terminate parental rights, a trial

court must find by clear and convincing evidence that at least one statutory ground under MCL 

712A.19b(3) has been established.” In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). 

Accordingly, “[o]nly one statutory ground for termination need be established.” In re 

Olive/Metts Minors, 297 Mich App at 41. If the trial court’s termination of parental rights under 

one statutory basis is erroneous, but proper under another statutory basis for termination, the 

erroneous determination is harmless error. In re Powers Minors, 244 Mich App 111, 118-119; 

624 NW2d 472 (2000). 
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A. MCL 712A.19b(3)(c)(i)

MCL 712A.19b(3)(c)(i) authorizes a court to terminate a parent’s parental rights if it 

finds by clear and convincing evidence that

(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. 

The conditions that led to adjudication were respondent’s failure to provide necessities 

for the child and an unfit home environment. Pertinently, respondent admitted she did not have 

necessities for the child, that she was on probation for assault, and that she had a mild intellectual 

disability. 

At the termination trial, the court found that immediately following the child’s birth, 

respondent and the father did not have necessities for the child and that they could not meet her 

needs. The court noted that respondent has mild cognitive issues in terms of her critical thinking 

and reasoning abilities, and that she is challenged in that regard, and noted respondent’s other 

mental challenges (i.e., mixed personality, anxiety, and depressed mood). The court found “that 

the placement that [respondent] was in was excellent[,]” but that she abandoned it and did not 

follow through with her mental health services, and that she did not have suitable housing. 

Although respondent’s caseworker observed signs of improvement through the course of 

the parenting sessions with the Child and Family Charities program, respondent became very 

inconsistent in the sessions, and failed to attend additional parenting sessions though Willow 

Tree and Cristo Rey. Moreover, respondent missed 35 of 90 parenting sessions. Respondent 

also received assistance in applying for cash assistance and food stamps, and, although she did 

not receive assistance in acquiring a driver’s license, she received transportation to job 

interviews. The record indicates that she obtained employment at Wendy’s. Although at times 

respondent demonstrated improvement regarding her abilities to provide necessities for the child, 

the record indicates an overall lack of benefit from the services provided to respondent, and a 

general lack of the ability to be a parent and provide financial support. 

Throughout the course of the proceedings, respondent did not obtain suitable housing. 

She had been living at the Gateway temporary shelter, which taught independent living skills and 

provided therapeutic services and housing, but she ceased participation in the program on June 

21, 2016, and was having difficulties with meeting their expectations. Moreover, as of March 

2017, respondent’s living situation was still sporadic. 

The record indicates that respondent received transportation to Volunteers of America to 

apply for housing assistance, received a list of local subsidized housing providers, and received 

assistance in applying for emergency housing funds. The record further indicates that respondent 

participated in the Kevin Moody House program, but that she left after two months, and that 
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while she was there she struggled to meet expectations, failed to complete her work, and was 

staying out late. Thus, in spite of the services available to her, respondent failed to obtain and 

maintain housing suitable for the child. 

Because clear and convincing evidence supports the trial court’s finding that the 

conditions that led to adjudication continued to exist and there is no reasonable likelihood that 

the conditions will be rectified within a reasonable time, the trial court did not commit clear error 

in determining that termination was proper under MCL 712A.19b(3)(c)(i).

B. MCL 712A.19b(3)(g)

The trial court also relied on MCL 712A.19b(3)(g), which authorizes a court to terminate 

a parent’s parental rights if it finds by clear and convincing evidence that

[t]he parent, without regard to intent, 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. 

“A parent’s failure to participate in and benefit from a service plan is evidence that the parent 

will not be able to provide a child proper care and custody.” In re White, 303 Mich App 701, 

710; 846 NW2d 61 (2014). 

Respondent’s case service plan pertinently required her to obtain employment and 

maintain a regular source of financial support, refrain from the use of illegal drugs, complete 

substance abuse treatment as directed, complete and cooperate with psychological examinations 

and services as directed, participate in parenting and counseling sessions, and cooperate with her 

caseworker. Respondent’s general noncompliance with her case service plan is illustrated by her 

failure to participate in, and benefit from, the services offered to her. 

The record suggests that a central focus of respondent’s case service plan was her 

psychological and emotional health, and that she was demonstrating compliance with the mental 

health treatment offered around October 2016, but by January 2017 she was not engaged in the 

services offered. Testimony indicates that she failed to attend an intake assessment for her 

individual therapy, that she failed to attend two consecutive appointments after the scheduled 

assessment, and that her lack of contact with her therapist prompted the therapist to send a 

discharge letter. Respondent also failed to participate in a wellness program arranged through 

CMH, and although she completed one session, the record indicates she did not subsequently 

attend her psychotherapy. When asked what changed during the eight months preceding trial, 

the caseworker testified that respondent voluntarily left the mental health services that she was 

doing through CMH and that she was not doing the wellness program individualized therapy 

through CMH. 

Respondent further failed to attend parenting programs provided through Willow Tree 

and Cristo Rey, and she missed a total of 35 out of 90 parenting visits. Further, the record 

indicates respondent was untruthful with the caseworker, and that she failed to maintain contact 

with her. Moreover, the caseworker explained that she was never able to refer respondent to a 

substance abuse counselor because respondent failed to complete a substance abuse assessment. 
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The record also indicates that, although she initially was compliant and tested negative during 

several drug screenings, respondent tested positive for marijuana at least eight times, tested 

positive for cocaine, and missed 65 screens between June 2016 and April 2017. 

The evidence of respondent’s general noncompliance and lack of benefit is uncontested. 

Although the record suggests that respondent, at times, began to demonstrate a benefit from the 

services offered (e.g., parenting skills, sobriety), she became inconsistent and demonstrated a 

general scheme of noncompliance with the case service plan. The record therefore supports the 

trial court’s conclusion that respondent would not be able to provide proper care and custody 

within a reasonable time. Accordingly, the trial court did not commit clear error when it 

determined clear and convincing evidence supported the statutory grounds for termination 

pursuant to MCL 712A.19b(3)(c)(i) and (3)(g). 

Affirmed. 

/s/ William B. Murphy

/s/ David H. Sawyer

/s/ Jane M. Beckering