If this opinion i ndicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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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UNPUBLISHED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 J. J. TWIGG

- JACKSON II , Minor. May 19, 2022

No. 357691
Calhoun Circuit Court Family Division
LC No. 2018

- 000315

- NA

In re S. A. ARMSTRONG , Minor. No. 357701
Calhoun Circuit Court Family Division
LC No. 2018

- 000315

- NA

Before: L ETICA
, P .J., and M ARKEY and O’B RIEN , JJ.

P ER C URIAM

.

In these consolidated 1 appeals from child protection proceedings, respondent

- mother appeals by right the trial court’s order s terminating her parental rights to JT

- J, II (JT J ), and SA,
her minor children . On appeal, respondent argues that the trial court erred when it determined that petitioner, the Department of Health and Human Services (DHHS)

, made reasonable efforts to reunite her with the children by providing adequate accommodations for her disabilities . Because
we conclude that the trial court did not err when it determined that DHHS provided reasonable
accommodations

, and thus, made reasonable efforts to reunify respondent with her children, we affirm.

1 In re J J Twigg

- Jackson II, Minor , unpublished order of the Court of Appeals, entered July 13, 2021 (Docket No. 357691); In re S A Armstrong, Minor , unpublished order of the Court of Appeals, entered July 13, 2021 (Docket No. 357701).- 2

- I. BACKGROUND

In January 2018

, DHHS petitioned to remove six

- month

- old JT J

. DHHS alleged that respondent had not provided proper care and custody, had mental health c oncerns , had unstable housing, did not have suitable income to provide for JT J , and had exposed JT J to criminality.
DHHS provide d respondent with services with the goal of reunif ication

. Respondent showed only minimal progress

, and the trial court change d the goal to adoption by October 2019.

In that same month, r espondent gave birth to SA , JTJ’s half

- sister

. DHHS petitioned for
termination of respondent ’ s parental rights to SA

, relying upon the prior substantiated allegations of improper supervision, physical neglect, and threatened harm a s to JTJ , respondent’s inconsistent engagement in services as to JTJ, and respondent’s inability to rectify the conditions that brought
JTJ into care

. Thereafter, r espondent married a man , who was not the father of e ither JTJ or SA,
and a dmitted to certain allegations in the petition in exchange for changing the goal as to SA from
termination to reunification.

In September 2020, DHHS withdrew its petition to terminate respondent’s parental rights
as to JTJ

, requesting the court to join the separate proceedings and afford respondent additional services with the goal of reunification. Respondent did not demonstrate progress toward
reunification and stipulated to changing the goal from reunification to adoption in February 2021. DHHS filed a supplemental petition to terminate respondent’s rights the following month.

In May 2021, t he trial court held a termination hearing

. C aseworker s testified that respondent was provided with numerous services, including psychological evaluations, parenting classes, individual and couple s counseling, case management services, drug screens, domestic

violence referrals, employment assistance, and housing assistance. Barriers for respondent included emotional stability, unstable housing, mental health, and parenting skills. Throughout the proceedings, responden t changed addresses . At the termination trial, respondent testified she was temporarily staying with a friend and disputed a caseworker’s testimony that respondent had reported sle eping in her storage unit

. Moreover, whether respondent was receiving Social Security
benefits

, or was in danger of losing them due to her criminal activity

, was disputed. And while respondent maintained that she had provided verification of receiving such benefits, a caseworker testified that she had not. Respondent also continued her involve ment in domestically violent relationships. Respondent had been charged with domestic violence , involving her ex

- boyfriend ; however, that matter was dismissed as part of a plea agreement in a separate criminal case

. R espondent’s husband informed a caseworker that he was filing for divorce and planned to obtain a personal protection order against respondent after an incident at his work. Respondent was also
in tr eatment for various mental health issues, including bipolar disorder and anxiety. R espon dent
disclosed to a caseworker that she had attempted suicide in March 2021 by walking in front of a

car. Respondent was injured and said she would check into an in

- p atient mental health facility

, but she did not do so

. At trial, r espondent denied attempting suicide and testified she was simply
involved in a car accident

. Moreover, r espondent failed to sign a release so that the caseworker
coul d verify that responden t participated in and benefitted from counseling. And although

r espondent generally participate d in parenting time

, she became inconsistent with her visits at certain points

. While respondent demonstrated some improvement in her interaction with the children, she ha d unrealistic expectations regarding their abilities

. R espondent also missed drug- 3

-

screens despite being diagnosed with mild cannabis use disorder, which at some point, appeared
to be in remission

. 2

After hearing the testimony and reviewin g the exhibits, t he trial court determi ned that
DHHS e stablished statutory grounds to terminate respondent ’ s parental rights to both children under MCL 712A.19b(3)(c)( i ) (conditions that led to adjudication continue to exist) and (j) (reasonable risk of ha rm if child is returned to parent’s home)

. The court further found that
termination was in the children’s best interests. On May 25, 2021, t he trial court entered orders terminating respondent ’ s parental rights

.
Respondent appea ls

.

II. REASONABLE ACCOMMODATIONS

A. PRESERVATION AND STANDARD OF REVIEW

Respondent argues that the trial court erred when it found that DHHS had made reasonable efforts to reunify her with he r children. Respondent contends that D HHS knew she had a learning disability

, an d therefore, should have provided accommodations at an earlier stag e in the proceedings. R espondent further asserts that DHHS failed to provide her with court ordered
accommodations

. We disagree.

To preserve a claim premised on D HHS ’s failure to make “ [ r ] easonable efforts to reunify the child and family,” as required under MCL 712A.19a(2), respondent had to challenge the case service plan when the trial court adopted it . See In re Frey , 297 Mich App 242, 247; 824 NW2d 569 (2012). Respondent did not raise any issue with accommodations before the trial court ordered
them in June 2020. Therefore, to the extent that she argues that the trial court should have ordered
DHHS to provide services to accommodate her reading and comprehension deficits before
June 2020, her claim is unpreserved. See id

. Respondent did not, however, have to take any special steps to preserve a challenge to the trial court’s findings or decision after the termination hearing that DHHS ma d e reasonable efforts at reunific ation by providing reasonable
accommodations . See MCR 2.517(A)(7).

This Court reviews de novo whether the trial court properly interpreted and applied the
relevant statutes and court rules. See In re Ferranti , 504 Mich 1, 14 ; 934 NW2d 610 (2019). But

t his Court reviews for clear error a trial court’s finding that DHHS proved a statutory ground for
termination by clear and convincing evidence. See In re Mason , 486 Mich 142, 152; 782 NW2d 747 (2010). A finding is clearly erroneous when, even though ther e is evidence to support it, this
Court is left with the definite and firm conviction that the trial court made a mistake. Id

. Finally, this Court reviews unpreserved claims of error in a termination proceeding under the plain

- error rule. See In re Beer

s , 325 Mich App 653, 677; 926 NW2d 832 (2018). To establish her right to relief under the plain

- error rule, respondent must show that the trial court committed a plain or obvious error and that the error affected the outcome of the proceedings. See i d

.

2 Respondent had a medical marijuana card, but it expi red during the proceedings.- 4

- B. ANALYSIS

A trial court may terminate a parent’s parental rights if it finds that DHHS has established one or more grounds for termination by clear and convincing evidence. See MCL 712A.19b(3); In re Gonzales/Martinez , 310 Mich App 426, 431; 871 NW2d 868 (2015). But t ermination of parental rights “ is improper without a finding of reasonable efforts

, ” In re Hicks/Brown , 500 Mich 79, 90; 893 NW2d 637 (2017)

, because our statutes impose a duty on DHHS “to make reasonable efforts to reunify a family befor e seeking termination of parental rights.” Id . at 85, citing
MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). Indeed, t he Probate Code explicitly directs DHHS to “create a service plan outlining the steps that it and the parent will take to rectify the
issue s that led to court involvement and to achieve reunification.” Id . at 85

- 86, citing
MCL 712A.18f(3)(d). Additionally

, DHHS “has obligations under the [Americans with Disabilities Act (ADA), 42 USC 12101 et. seq.

, ] that dovetail with its obligations under the Probate Code.” Id . at 86. As with other public bodies required to comply with the ADA, DHHS “must make ‘reasonable modifications in [its] policies, practices, or procedures when the modification s are necessary to avoid discrimination on the basis of disability, unless . . . the modifications would fundamentally alter . . . the service’ provided.” Id ., quoting 28 CFR 35.130(b)(7) (2016). Accordingly

, once DHHS knows of a parent’s disability, its e fforts at reunification cannot be
reasonable unless it “modifies its services as reasonably necessary to accommodate [the] parent’s disability

. ” Id . at 90.

In this case, r espondent asserts that DHHS knew that she had a disability from the inception of the case because the first case service plan noted he r disability. The record does not support
th is contention.

The author of the first case service plan noted the reasons that J TJ came into care: a person filed a complaint that respondent was not properly caring for JTJ

, and “it [was] reported that she
ha s the mentality of a 13

- [to] 14 [

- ] year [

- ] old.” Th at an undisclosed person offered an opinion
that r espondent , who was 19, had the mentality of a 13

- or 14

- year

- old teenager did not establish
that she had a mental disability that required accommodation. It also did not show that respondent was unable to read or that her cognitive functioning was so low that she could not understand the proceedings without accommodation. In light of respondent’s age, the statement may have been hyperbole regarding her in ability to make mature decisions. And the remainder of the report
included notes that contradicted the claim that respondent had deficits that may have required
formal accommodation. The author of the report described respondent as attentive during a

con tact , adding that she understood the cause and concerns that led to JTJ ’s removal, and that she participated in the meeting without any problem. Additionally, the contact notes suggested that respondent understood what she was being told by the caseworker s and that she was fully capable of communicating via text messaging. There was even a note that respondent had authored posts to social media, which suggested that she was literate and had functional computer skills. The
author also noted that responden t expressed insight into the problems that she needed to overcome in order to be able to parent JTJ

.
The notes from later case service plans similarly suggested that respondent was capable of meaningfully participating in meetings, capable of communicatin g her needs, and had the ability to comply with the case service plan. For example, t he author of a December 2018 report opined
that respondent ’ s literacy was a strength: respondent “ is able to read and write appropriately, this- 5

-

is evidenced by her signin g and understanding documents provided to her by [ DHHS ] and Calhoun County Court. She reports that she graduated high school through an online program.” 3 Moreover, after respondent’s first psychological evaluation, the psychologist did not identify any d eficiencies
that revealed her ability to read and write or to understand the proceedings was compromised

. To the contrary, when he inquired about learning disabilities

, respondent informed him that she “used
to read words backwards

, ” but no longer did so.

There was no record evidence suggest ing that respondent needed special accommodations with reading and understanding documents before the psychologist conducted a second psychological evaluation in April 2020. Accordingly, respondent has not established that it was plain error to adopt a plan that did not include reasonable accommodations before the trial court
ordered such accommodations in June 2020. See In re Beers , 325 Mich App at 677.

In March 2020, respondent’s therapist reported respondent discl osed that she had had an Individualized Education Program while in school and struggled with reading. The April 2020 psychological evaluation followed. It revealed that respondent’s V erbal C omprehension Index (VCI) and Working Memory Index (WMI) were “ex tremely low.” Respondent’s VCI score indicated that she had “significant weakness in verbal reasoning, general fund of information, and word knowledge ,” resulting in “significant deficits in her verbal comprehension and reasoning and in her ability to use and understand language.” Respondent’s WMI score revealed “significant
deficits in her ability to encode, temporarily store, and mentally manipulate information in working memory. There are likely difficulties sustaining attention and concentration.” T hus, respondent had “tendencies to be easily distracted, forgetful, and to have difficulties differentiating between important and unimportant cues.”

Following a May 2020 hearing, the trial court ordered DHHS to “make reasonable accommodations to assist [ respondent] with comprehension of services, reading, additional instructions and reminders.” The court explained that one

- on

- one instruction was “needed.” Additionally, the court ordered:

[DHHS] shall provide [respondent] with accommodations to properly help her including but not limited to the following: Read the Case Service and Court Reports to her; Provide additional help in classes she needs to attend or have one [

- ] on [

- ] one instruction only; Answer all questions; Expl ain what is needed and why it is important so that [respondent] understands what she needs to do; Read to her any document she needs to sign and give her the opportunity to review it with her attorney before signing. [DHHS] shall reach out to [respondent’ s] attorney

. . . , if she declines anything that would jeopardize reunification with her children so that her attorney has an opportunity to get [respondent] engaged in that service

.
Respondent similarly has not shown that DHHS failed to provide reasonabl e accommodations once it became aware she had a learning disability that affected her ability to read

3 At the preliminary hearing involving SA, respondent told the court she was able to read the petition. Likewise, during her plea, she affirmed that she was “able to read and write” after being placed under oath.- 6

-

and understand documents. See In re Hicks , 500 Mich at 86

- 88. The psychologist did not diagnose respondent with being illiterate. Rather, he diagnosed respondent with a “mild” intellectual disability. More specifically, he opined that respondent had significant deficits in verbal comprehension and reasoning, and that she had deficits in her ability to use and understand language. He also remarked that she had problems with her working memory and was easily
distracted. Although these diagnoses indicated that respondent needed some assistance, the record
did not demonstrate that respondent required additional measures to assist her with understanding
her case service plan.

The psychologist recommended that respondent develop an awareness of her deficits and assert herself by seeking help and clarification when necessary. He further recommended that respondent take a notebook /calendar to her appointments so that she could write down all pertinent
information and he asked her to develop a support network of people who could answer any questions that she might have

.
The psychologist’s recommendations reflect his view that respondent was capable of
facilita ting her own participation in services by taking notes, developing a support network, and asking for assistance when needed. Consequently, the record does not support the conclusion that respondent ’ s impairment was so severe that she needed DHHS to enroll her in remedial literacy
classes or provide additional accommodations. In light of the psychologist’s recommendations

, DHHS could reasonably accommodate respondent ’ s needs by taking extra time to review documents with her, by simplifying the language use d in the documents, and by explaining the terms and requirements in a basic manner. It could also accommodate respondent by having
someone available to answer any questions she had . The record evidence show s this is precisely
what the case worker s did for respondent after the trial court ordered the accommodations.

At the termination hearing, caseworker Justice Britten testified that she made accommodations to help respondent understand the services and requirements for reunification.
Britten made hersel f available to respondent by text and phone, and Britten answered any questions respondent had. Britten explained court documents to respondent and broke down the concepts involved in the process . Britten review ed the materials until respondent stated “o kay” and had no further questions. Britten reviewed documents that respondent had to sign; and, although respondent did not have her lawyer present for any signings, respondent never asked to have her lawyer present. Britten clarified that it was her und erstanding that respondent’s deficits involved reading and comprehension of paperwor k, so she focused on those areas to ensure respondent understood what was expected of her. In their interactions, respondent was able to read . Moreover,
Britten spoke to respondent , if not every day, then at least every other day, answer ing any questions
she had

. Britten e xplained to respondent the importance of p articipat ing in the case service plan.

Britten’s testimony established that DHHS made accommodations for resp ondent ’ s deficits
that were consistent with the psychologist’s diagnosis and recommendations. Britten spent additional time with respondent to ensure she understood

. Because the record evidence supported the trial court’s finding that DHHS accommodated r espondent’s deficits and made reasonable efforts that included those accommodations, we conclude that it did not clearly err. See In re
Mason , 486 Mich at 152.- 7

-

Moreover, w hile DHHS had a duty to provide accommodations for respondent ’ s deficits, respondent had a commensurate duty to participate in the case service plan. See In re Frey , 297 Mich App at 248. The psychologist identified areas where respondent could have worked with
DHHS to overcome the barriers presented by her deficits ; however, respondent did not

.

C aseworker Katie Brooks testified that respondent failed to take the necessary steps to be drug tested, and she even refused an in

- person test after that option was offered to her. On the other hand, r espondent testified that she complied with the requirements for drug testing, but was repeatedly turned away by the testing agency. Respondent further denied that she refused to accept
DHHS’s offer of in

- person test ing, adding that Brooks refused to accommodate respondent by traveling to her locat ion. In light of these conflicting versions, t he trial court had to determine
which it would credit . The trial court found respondent ’ s testimony lacked credibility. The trial court was in the best position to judge respondent ’ s credibility and this Cou rt will not second

guess its assessment of her credibility. See In re Miller , 433 Mich 331, 337

- 338; 445 NW2d 161 (1989)

.

The same is true of respondent ’ s claim that DHHS failed to better accommodate her difficulties with literacy

, prevent ing her from ma king progress with the case service plan. Respondent points to Britten’s failure to better explain the call

- in process , alleging that this hampered her ability to engage with the drug testing process

. But respondent testified that she fully complied with the drug testing requirements and was only prevented from testing because
she did not have photographic identification when she went to take the test . She further blamed
DHHS for her inability to test on the ground that DHHS failed to solve the problem with the testing agency. Consequently, respondent ’ s own testimony established that the failure to drug test had nothing to do with Britten’s purported failure to better explain the testing procedures.

Respondent also testified that no one helped her with reading documents , which contravened the trial court’s order for accommodations

. Respondent ’ s testimony again directly conflicted with Britten’s testimony. The trial court resolved that dispute in favor of DHHS , and respondent has not established grounds for overcoming the de ference that this Court owes to the trial court’s resolution of that dispute. 4 See id

.

Affirmed.

/s/ Anica Letica /s/ Jane E. Markey /s/ Colleen A. O’Brien

4 Respondent d oes not otherwise challenge the trial court’s determinations regarding the statutory grounds supporting termination or the children’s best interests.