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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re C. APPLEWHIATE, JR., Minor. June 6, 2017

No. 335631 Berrien Circuit Court Family Division LC No. 2016-000096-NA

Before: M ARKEY , P.J., and M URPHY and M ETER , JJ.

P ER C URIAM

. Respondent mother appeals by ri ght the trial court’s order ter minating her parental rights under MCL 712A.19b(3)(g) (failure to provide proper care and cu stody), (i) (parent’s rights terminated to child’s siblings due to serious and chronic negle ct), and (j) (reason able likelihood of harm to child if child is ret urned to parent). We affirm.

On appeal, mother first argues that the trial court reversibly erred when it failed to comply with the Indian Child Welfare Act (ICWA). We disagree. Because mother failed to preserve this issue, our review is limited to plain error affec ting substantial rights. In re Utrera
, 281 Mich App 1, 8; 761 NW2d 253 (2008). “To avoid forfeiture u nder the plain-error rule, three requirements must be met: (1) an error must have occurred, (2) the error was plain, i.e., clear or obvious, (3) and the plain error affected substantial rights.” In re VanDalen , 293 Mich App 120, 135; 809 NW2d 412 (2011) (citation and quotation marks omitted) . An error is deemed to affect substantial rights if it affect ed the outcome of the proceeding s. In re Utrera , 281 Mich App at 9.

In child protective proceedings, an “Indian child” is afforded certain protections under the ICWA and the Michigan Indian Family Preservation Act (MIFPA ), MCL 712B.1 et seq

. In re Morris , 491 Mich 81, 98- 99; 815 NW2d 62 (2012); In re Spears , 309 Mich App 658, 669; 872 NW2d 852 (2015). An “Indian child” is defined by the ICWA as “ any unmarried person who is under age eighteen and is either (a) a member of an Indian trib e or (b) is eligible for membership in an Indian tribe and is the biological child of a member of a n Indian tribe.” 25 USC 1903(4). 1 “[W]hen there are sufficient indi cations that the child may be an Indian child, the ultimate

1 MIFPA defines “Indian child” similarly to the ICWA, “but does not require the child who is eligible for membership to also be the biological child of a me mber of an Indian tribe.” In re KMN , 309 Mich App 274, 287; 870 NW2d 75 (2015); see also MCL 712B. 3(k)( ii ).-2- determination requires that the tribe receive notice of the chi ld custody proceedings, so that the tribe may advise the court of the child’s membership status.” In re Morris , 491 Mich at 100. The notice provision of the ICWA st ates in relevant part as fol lows:

In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seek ing the foster care placement of, or termination of parental rights to, an Indian c hild shall notify the parent or Indian custodian and the Indian child’s tribe, by reg istered mail with return receipt requested, of t he pending proceedings and of the ir right of intervention. [25 USC 1912(a); see also MCL 712B.9(1) 2 (the corresponding notice provision in MIFPA).]

The ICWA notice requirement is “triggered by indicia of Indian heritage sufficient to give the court actual knowledge or a ‘reas on to know’ that the child is an Indian child.” In re Morris , 491 Mich at 104.

Yet regardless whether the ICWA notice requirement is triggere d, a trial court is required to “inquire if the child or either parent is a member of an Ind ian tribe” at the preliminary hearing in a child protective proceeding. MCR 3.965(B)(2). In this ca se, at no point during mother’s preliminary hearing did the trial court make this inquiry. Thi s error is even more palpable given the trial court’s involvement i n mother’s prior termination. I n the previous case, mother received services on behalf of the Pokagon Band of Pottawatomi Indians b ecause of her other child’s eligibility as a member of that tribe. Given that the trial co urt had actual knowledge that mother had a different child that qualified as an Indian child, see 25 USC 1903(4), we find that the trial court plainly erred by not inquiring whether the child or eithe r parent in this proceeding was a member of an Indian tribe. MCR 3.965(B)(2); see also In re Morris , 491 Mich at 108 n 18 (stating one indicator “sufficien t to trigger tribal notice” wa s that “the child’s family [had] received services or benefits fro m a tribe or the federal gover nment that are available to Indians”).

Nonetheless, mother has failed to establish that this error af fected the outcome of the proceedings. There is no evidence in the lower court record th at indicates that the child in this case has any tribal affiliation. In his initial case service p lan, next to “Tribal Affiliation,” the plan states “N/A”; in the initial court report, next to “Tribal Affiliation” for the child, the report

2 MCL 712B.9(1) states provides i n relevant part the following: In a child custody proceeding, if the court knows or has reason to know that an Indian child is involved, the petitioner shall notify the paren t or Indian custodian and the Indian child’s tribe, by registered mail with return re ceipt requested, of the pending child custody proceeding and of the right to interv ene. If the identity or location of the parent or Indian custodian and the tribe can not be determined, notice shall be given to the secretary in the same manner descr ibed in this subsection.-3- states “No.” The only reference to the child’s heritage is in the initial case service plan, which lists his race as “White.” Further, the reason that mother rec eived services from the Pokagon Band in her prior case was due to that child’s father’s members hip with the tribe, not mother’s. The child in this case has a different father than the child in mother’s previous case. On appeal, mother does not claim to have any membership with an Indian tri be, nor does mother claim that the child’s father 3 in this case is a member of an Indian tribe. Accordingly, mot her has failed to establish that the result of the proceeding would have been dif ferent, e.g., that the child would have been entitled to the applica tion of the protections for In dians available under the ICWA. See In re Utrera , 281 Mich App at 9.

Next, mother contends that the Department of Health and Human Services (DHHS) did not make reasonable efforts in light of her cognitive limitatio n. We disagree. This Court reviews whether the trial court clearly erred by finding that r easonable efforts were made to preserve and reunify the family. In re Fried , 266 Mich App 535, 542-543; 702 NW2d 192 (2005). “A finding is clearly erro neous if the reviewing court is left with a definite and firm conviction that a mistake has been made.” In re LaFrance , 306 Mich App 713, 723; 858 NW2d 143 (2014).

In general, before parental rights may be terminated, the DHHS must make “ ‘[r]easonable efforts to reunify the child and family[.]’ ” In re Mason , 486 Mich 142, 152; 782 NW2d 747 (2010), quoting MCL 712A.19a(2). When a parent is dis abled, the DHHS must make reasonable accommodations under Title II of the Americans with Disabilities Act (ADA), 42 USC 12131 et seq. , to ensure that the parent benefits from the services it provi des. In re Hicks , 315 Mich App 251, 266-267; 890 NW2d 696 (2016), lv pending. The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied t he benefits of the services, pro grams, or activities of a public entity, or be subjected to discrimina tion by any such entity.” 42 USC 12132.

In Hicks , this Court addressed the standards for making reasonable acco mmodations in child protective proceedings whe n providing services to a cogni tively impaired parent with an IQ was tested at 70. In re Hicks , 315 Mich App at 255, 271-283. A lthough the DHHS was aware of the mother’s impairments, it spent two years providing services “geared toward a parent of average cognitive functioning.” Id . at 260. After reviewing the related caselaw, statutes, regulations, and publications on the subject, the Hicks Court held that when a parent is known or suspected to have a “cognitive developmental or intellectual im pairment,”

the DHHS must offer evaluations to determine the nature and ext ent of the parent’s disability and to secu re recommendations for tailoring necessary reunification services to the individual. The DHHS must then e ndeavor to locate agencies that can provide services geared toward assisting the parent to overcome obstacles to reunification. If no local agency catering to the needs of such

3 Mother was married when the child was born, but contests wheth er the legal father is the natural father. Regardless, mother does not contend that eithe r the legal father or the putative father is a member of an Indian tribe.-4- individuals exists, the DHHS must ensure that the available ser vice providers modify or adjust their programs to allow the parent an opportun ity to benefit equal to that of a nondisabled parent. If it becomes clear tha t the parent will only be able to safely care for his or her children in a supportive environment, the DHHS must search for potential relatives or friends willing and able to provide a home for all. And if the DHHS shirks these duties, the circuit court must order compliance. [ Id . at 282.]

Because those standards had not been met, the Hicks Court vacated the termination decision and remanded the case to allow the DHHS to provide the respondent s ervices that reasonably accommodated her cognitive impairment. Id . at 286-287.

In this case, the child was removed from mother’s care within days of his birth because of mother’s previous termination. Shortly thereafter, the DHHS pr ovided mother with a psychological evaluation. Mother also had two psychological ev aluations as part of her previous case; one was done in 2013 and th e other in 2014. Mother’s psy chological evaluations showed that she had limited cognitive abilities. In an effort to addr ess mother’s limitations in the prior case, in addition to regular normal parenting classes, the DHHS provided mother a one-on-one parenting coach to teach her how to properly care for an infant . The one-on-one coaching in addition to her parenting classe s afforded mother the opportuni ty to reinforce what she learned in her parenting classes. Mother a lso received extensive counseli ng and mental health treatment as part of her previous services. In mother’s current case, her c aseworker searched for possible relative placements but was unabl e to locate any. Moreover, du ring mother’s supervised parenting time, she received hands-on instruction regarding howto properly care for her infant. Accordingly, based on the extensive services mother received in her previous case and the DHHS’s continued efforts in this case, we are not left with a d efinite and firm conviction that the trial court erred by finding that the DHHS provided mother withreasonable efforts in light of her cognitive limitation.

Mother next argues that the trial court erred by finding that a statutory ground for termination was proved by clear and convincing evidence. We di sagree. “To terminate parental rights, a trial court must find by clear and convincing evidenc e 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). This Court “review[s] for clear error a trial court’s finding of whether a statutory ground for termination has bee n proven by clear and convincing evidence.” Id

. Mother’s rights were terminated under MCL 712A.19b(3)(g), (i), and (j). Under MCL 712A.19b(3)(j), a trial court may terminate parental rights if “[t]here is a reas onable likelihood, based on the conduct or capacity of the child’s parent, that th e child will be harmed if he or she is returned to the home of the parent.” A parent must sufficientl y benefit from the services so that he or she has the attained a lev el of parenting skills that ind icates the children would no longer be at risk of harm while in the parent’s custody. In re White , 303 Mich App 701, 712-713; 846 NW2d 61 (2014).

During supervised visits with the child in this case, mother e xhibited a severe lack of parenting skills. When the child would cry, mother would consi stently attempt to soothe the-5- child by feeding him. Mother’s caseworker explained to mother that there were other soothing tactics she could use when the c hild cried and demonstrated how to use those tactics with the child. Despite these demonstrations, mother continued to try t o feed the child every time the child became upset. Further, a lthough she was shown how to pro perly place the child in his car seat, mother was unable to properly buckle the child in his sea t. According to mother’s caseworker, these were the same parenting-skill problems that m other exhibited in her last termination, which also involve d an infant child. Mother recei ved a number of services in her prior case to address her lack of parenting skills, including p arenting classes and a one-on-one parenting coach. Yet mother app eared unable to apply these les sons to parenting the child in this case. Accordingly, because mother did not benefit from her par enting lessons, the child in this case remained at risk of harm with her as caretaker. Id . Consequently, termination was proper under MCL 712A.19b(3)(j). Having concluded that at least one g round for termination existed, we need not address the additional grounds for termination iden tified by the trial court. In re HRC , 286 Mich App 444, 461; 781 NW2d 105 (2009).

Mother next argues that the trial court erred by finding that termination was in the child’s best interests. We disagree. “ Once a statutory ground for ter mination has been proven, the trial court must find that termination is in the child’s best interes ts before it can terminate parental rights.” In re Olive/Metts , 297 Mich App 35, 40; 823 NW2d 144 (2012). The trial court’s determination of the child’s best interests must be supported b y a preponderance of the evidence. In re Moss , 301 Mich App at 90. Appellate courts review for clear error the court’s decision regarding the child’s best interests. In re White , 303 Mich App at 712-713.

When deciding whether termination is in the child’s best inter ests, the trial court may consider the record as a whole. In re JK , 468 Mich 202, 211; 661 NW2d 216 (2003). “[T]he focus at the best-interest stage” is “on the child, not the par ent.” In re Moss , 301 Mich App at 87. The trial court must weigh all the evidence available to i t in determining the child’s best interests and may consider such factors as “the parent’s parent ing ability, the child’s need for permanency, stability, and finality,” In re Olive/Metts , 297 Mich App at 41-42, “and the possibility of adoption,” In re White , 303 Mich App at 714.

As previously discussed, mother exhibited a severe lack of par enting skills despite having received numerous services to improve her skills. Mother also appeared unable to provide a safe and stable home environment. At the time of mother’s terminati on proceeding, her current housing did not have running water. Mother’s caseworker testif ied that mother’s home smelled of dog urine and that he did not believe that the home was suit able for a child. Mother also planned to expose the child to abusive men. At the time of the termination trial, mother was in a relationship with a man who was currently in jail on charges of domestic assault involving mother. Mother told her casewor ker that she intended to have t he man move in with her when he was released from jail to help her raise the child. Moreover, mother had previously been in two abusive relationships during her prior termination proceedings. Both of those men assaulted mother and one of mother’s child ren. In fact, one of the men w as currently in prison for sexually assaulting one of mother’s other children. As part of mother’s services in her prior proceedings, she had counseling and domestic relations services to help her address this issue. Despite these services and the history of mother’s abusive partners abusing h er children, mother insisted that her current boyfriend live with her when he was released from j ail. This evidences mother’s inability to prioritize the safety of her children over her rel ationships with abusive men. Further,-6- the child’s current p lacement indicated tha t they were willing to adopt the child i f mother’s rights were terminated. Accordingly, the trial court did not clearly err by concluding by a preponderance of the evidence th at termination was in the child ’s best interests.

We affirm.

/s/ Jane E. Markey /s/ William B. Murphy /s/ Patrick M. Meter