-1-

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UNPUBLISHED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 BAILEY, Minors. June 7, 2018

No. 340282

Gladwin Circuit Court

Family Division

LC No. 16-000124-NA

Before: O’CONNELL, P.J., and K. F. KELLY and RIORDAN, JJ.

PER CURIAM.

Respondent-mother appeals as of right the trial court’s order terminating her parental 

rights to two minor children, HB and JB, under MCL 712A.19b(3)(c)(i) (conditions that led to 

adjudication continue to exist), (g) (failure to provide proper care or custody), and (j) (reasonable 

likelihood of harm).1 We affirm. 

HB and JB were removed from respondent’s home because of improper supervision and 

respondent’s failure to acknowledge and address HB’s threatened suicide and self-harming 

behaviors. Respondent argues that reversal is warranted because the Department of Health and 

Human Services (DHHS) failed to expend reasonable efforts to reunify the family by not making

reasonable accommodations to account for respondent’s mental health issues. 

This issue is unpreserved because respondent failed to object to the adequacy of the 

services DHHS provided. See In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). “The 

time for asserting the need for accommodation in services is when the court adopts a service plan

. . . .” Id. (quotation marks and citation omitted). This Court reviews for clear error the trial 

court’s findings of fact in termination proceedings, including whether DHHS made reasonable 

efforts to provide a respondent with services aimed at reunification. In re Fried, 266 Mich App 

535, 541-543; 702 NW2d 192 (2005). However, 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 if it caused prejudice, i.e., it affected the outcome of the proceedings.” 

Id. at 9. 

 1 The children’s father’s parental rights were previously terminated. He is not a party to this 

appeal. 
-2-

“Under Michigan’s Probate Code, [DHHS] has an affirmative duty to make reasonable 

efforts to reunify a family before seeking termination of parental rights.” In re Hicks, 500 Mich 

79, 85; 893 NW2d 637 (2017). Reasonable efforts begin with the creation of a case service plan 

aimed at rectifying the conditions that caused the child’s removal. In re Fried, 266 Mich App at 

542. The service plan must include a “[s]chedule of services to be provided to the parent . . . to 

facilitate the child’s return to his or her home . . . .” MCL 712A.18f(3)(d). “Public entities, such 

as [DHHS], must make ‘reasonable modifications in policies, practices, or procedures when the 

modifications are necessary to avoid discrimination on the basis of disability, unless . . . the 

modifications would fundamentally alter . . . the service’ provided.” In re Hicks, 500 Mich at 86, 

quoting 28 CFR 35.130(b)(7) (2016). “While [DHHS] 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.” In re Frey, 297 Mich App 

at 248. The respondent must demonstrate that the services provided were sufficiently beneficial. 

Id. 

Respondent relies on In re Hicks, 500 Mich at 82-83, in which the respondent-mother 

was intellectually disabled, to support her argument. In In re Hicks, 500 Mich at 84, the 

respondent’s attorney requested accommodations several times prior to the termination hearing. 

Despite the trial court’s consequent order granting respondent’s counsel’s request for 

accommodations, DHHS did not modify the case service plan to make those accommodations. 

Id. at 89-90. Therefore, termination was improper because “efforts at reunification cannot be 

reasonable under the Probate Code unless [DHHS] modifies its services as reasonably necessary 

to accommodate a parent’s disability.” Id. at 90. 

In this case, unlike In re Hicks, respondent’s attorney did not request an accommodation 

or argue that the case service plan was unworkable because of respondent’s depression or 

anxiety. During implementation of the case service plan, respondent was diagnosed with major 

depression and generalized anxiety disorder. DHHS identified respondent’s struggle with mental 

health issues from the outset of the case in March 2016. Respondent was already engaged in 

weekly therapy at that time. She was twice encouraged to seek a psychiatric evaluation, yet she 

repeatedly delayed scheduling a psychiatric evaluation. She finally underwent a psychiatric 

evaluation and was prescribed medication in May 2017, fourteen months after the beginning of 

the case. By the time of the termination hearing in September 2017, she had already 

discontinued the medication. 

The record contains no indication that respondent’s anxiety and depression prevented her 

from taking advantage of psychiatric care. Instead, respondent was given many opportunities to 

pursue psychiatric care, but she put them off and discontinued prescribed medication. Her 

failure to take advantage of those services, in addition to her quick discontinuation of the 

recommended medication, belies the assertion that she would have fared better had DHHS 

offered additional services. Moreover, respondent does not identify what additional services 

DHHS should have offered or how DHHS should have modified the case service plan to 

accommodate respondent’s mental health diagnoses, particularly when she demonstrated an 

aversion to the prescribed medication. 

Additionally, respondent was recommended to take part in long-term individual therapy 

and family therapy, and she did so consistently. Her therapist testified that respondent was 
-3-

cooperative and had made progress on relaxation skills and recognizing triggers that exacerbated 

her anxiety and depression. However, psychological evaluations in May and June 2016

described respondent as being in “denial” and externalizing responsibility for her circumstances, 

which created an environment that was not conducive to the children’s emotional development. 

One year later, despite participating in therapy, respondent’s follow-up psychological evaluation 

established that respondent did not make progress in taking responsibility and that respondent 

continued to blame her daughter and Child Protective Services (CPS) for the continuation of the 

termination proceeding without acknowledging her role. The evaluation further noted that 

respondent’s lack of progress made it difficult for her to benefit from services provided so as to 

reduce the risk to the children if they were to return to respondent’s home. The children’s

therapist testified that respondent continued to “victim-blame” them and that she refused to 

support and validate their feelings, which was essential to their recovery. At the termination 

hearing, respondent was only able to admit “some” responsibility for the children’s removal, 

explaining that she was unable to supervise the children because of her limitations following 

surgery instead of recognizing her own emotional instability. Further, she continued to blame 

CPS for the removal, and she described HB as “deceitful” and a “sociopath.”

Respondent’s sole argument on appeal is that reasonable efforts were not made to reunify 

the family. Nonetheless, the “contention that reasonable services were not offered ultimately 

relates to the issue of sufficiency” of the evidence for termination of parental rights. In re Fried, 

266 Mich App at 541. In this case, the trial court did not clearly err by finding that respondent’s 

untreated mental health issues and other issues leading to adjudication continued to exist at the 

time of the termination hearing and that there was a reasonable likelihood of harm to the children 

if they were returned to her custody. Respondent participated in counseling and therapy, but she 

chose not to seek out and benefit from psychiatric care. Furthermore, respondent’s parental 

rights were terminated because she continued to externalize blame and she failed to benefit from 

the psychological and psychiatric care that she did receive. Although respondent participated in 

counseling, it was evident at the termination hearing that she did not sufficiently benefit from 

counseling because she was still unable to recognize her own responsibility and continued to 

blame CPS and HB. In short, respondent has not shown that her inability to benefit from the 

services offered resulted from unreasonable efforts or DHS’s failure to make a reasonable 

accommodation. 

We affirm. 

/s/ Peter D. O’Connell

/s/ Kirsten Frank Kelly

/s/ Michael J. Riordan