IN RE FISHER MINORS (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
July19, 2011
In the Matter of FISHER, Minors.
No. 301652
Macomb Circuit Court
Family Division
LC Nos. 08-000701-NA;
08-000702-NA;
08-000703-NA
Before: MURRAY, P.J., and FITZGERALD and RONAYNE KRAUSE, JJ.
PER CURIAM.
Respondent appeals as of right from an order terminating her parental rights to the minor
children under MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.
The trial court did not clearly err in finding that the statutory grounds for termination
were established by clear and convincing evidence and that termination was in the best interest
of the children. In re Trejo, 462 Mich 341, 355-357; 612 NW2d 407 (2000); MCL 712A.19b(5);
MCR 3.977(K).
The children were brought into care primarily because of physical neglect. Respondent’s
psychological testing and evaluation established that she was cognitively impaired. Respondent
was provided with a guardian ad litem. Respondent pleaded no contest to the petition, which
included allegations that respondent had no control over the children and that her home was in
deplorable condition. The petition also alleged that respondent admitted feeling overwhelmed
and depressed but did not seek mental health treatment.
Respondent was provided with a case service plan. She made slow but steady progress,
and appeared to internalize many of the things that she learned during parenting classes. Her
progress was sufficient and, when issues arose regarding the oldest child’s relative placement,
petitioner recommended that the child be returned to respondent’s care. Family reunification
services were put into place. Respondent appeared to be doing well, but approximately four
months later the child was removed from respondent’s care after respondent missed medical
visits for the child and failed to reschedule them. Respondent’s oldest two children were
cognitively impaired, had extensive special needs, and suffered from seizure disorders, making
medical treatment and monitoring critical. Respondent’s visits with all three children were then
changed to a supervised setting. The visits initially went well when respondent visited each child
individually, but problems emerged when the two girls began visiting respondent together.
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Workers supervising the visits had to increasingly intervene and redirect respondent and the
girls. Respondent’s visits with her son did not go well either. At times respondent failed to
engage the children because she was busy texting, an activity that she was warned repeatedly to
avoid during visits.
There is no dispute that respondent made initial strides and complied with her treatment
plan to the best of her ability, but as parenting pressures increased she was unable to meet the
children’s needs. Respondent, a cognitively impaired woman with two cognitively impaired
children, was simply unable to effectively parent the children. The conditions of adjudication
were that the children were physically neglected and respondent was overwhelmed. Two years
later those conditions continued to exist. It did not appear that the conditions would be rectified
within a reasonable time, considering the fact that respondent had already received two years of
services. Additionally, because of their seizure disorders, the two oldest children were especially
at risk of harm if left in respondent’s care, as she failed to appreciate their need for continued
medical monitoring. Respondent was financially reliant on her own mother, who was also
cognitively impaired. In spite of her best efforts, respondent was not able to demonstrate
adequate parenting skills.
Having found grounds for terminating respondent’s parental rights, the trial court then
had to consider whether termination was in the children’s best interests. The children had been
in care for over two years. The older two children had significant special needs and deserved a
caregiver who could attend to those needs. The youngest child had spent most of her life in
foster care. There is no doubt that respondent loved the children, and she did her best to comply
with her case service plan, but the record clearly reveals that respondent did not have the
capacity to parent them. The children are entitled to permanence and stability.
We reject respondent’s contention that the agency failed to comply with the Americans
with Disabilities Act (ADA), 42 USC 12101 et seq. A parent who claims that there has been a
violation of the ADA must raise the issue in the lower court when the case service plan is
adopted or soon thereafter. In re Terry, 240 Mich App 14, 26; 610 NW2d 563 (2000). Contrary
to petitioner’s assertion, respondent raised the issue of her cognitive delay and need for special
services in a timely manner and was appointed a guardian ad litem at the outset of the case;
therefore, the issue has been preserved for review. We review for clear error a trial court’s
finding that the agency has made reasonable reunification efforts. Id. at 22.
When children are removed from a parent’s custody, the agency is required to make
reasonable efforts to rectify the conditions that caused the removal by adopting a case service
plan. MCL 712A.18f; In re Fried, 266 Mich App 535, 542; 702 NW2d 192 (2005). In making
those efforts, petitioner is also obligated under the ADA to “make reasonable accommodations
for those individuals with disabilities. Terry, 240 Mich App at 25. Failure to take a parent’s
disabilities into account and reasonably accommodate those disabilities by tailoring a service
plan to assist a parent will result in a finding that reasonable efforts were not made. Id. at 26.
Lack of effort toward reunification may prevent the agency from establishing the statutory
grounds for termination. In re Newman, 189 Mich App 61, 67-68; 472 NW2d 38 (1991).
However, in order to succeed on a claim that reasonable efforts were not made, a parent must
demonstrate that she would have fared better if the agency had offered other services. Fried, 266
Mich App at 543.
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The record establishes that petitioner and the trial court were aware of respondent’s
cognitive limitations and reasonably accommodated her disability. At her plea hearing,
respondent was represented by legal counsel and was appointed a guardian ad litem. Respondent
had an assessment at Community Mental Health (CMH) and qualified for an additional
assessment for a day program for adults who had difficulties. While reunification was the goal,
respondent’s attorney wanted to ensure that the goal was realistic and that compliance with a
case service plan would not merely be an “exercise in futility.” The foster care worker indicated
that she interviewed respondent and developed the case service plan “based on person-centered
planning” specifically to meet respondent’s needs. Respondent received the services of a special
visitation coach in her home, parenting classes, and family reunification services through Judson
Center and Warren Community Specialist. Respondent was referred to Disability Network of
Oakland and Macomb County as well as Michigan Rehabilitation Services. At the termination
hearing, the supervising caseworker indicated that petitioner had looked into all kinds of
resources, but additional community services were simply not available. In addition, respondent
had received services before this case. Respondent had a history of protective services
involvement dating back to 2004, primarily because of physical neglect. The family received
Families First services from March 2008 until August 2008, but failed to benefit from those
services. The children’s guardian ad litem argued that termination was appropriate, not for “lack
of effort or lack of good faith on her part, but her ability to comply with the statutory grounds,
she’s not going to be able to do it.”
Respondent received all of the services that petitioner could provide to her to
accommodate her cognitive disability, but she still was not able to independently and safely
parent her children. 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.” Terry, 240 Mich App at 28. The ADA
does not require petitioner to provide a parent “with full-time, live-in assistance with her
children.” Id. at 27-28. No violation of the ADA occurred.
Affirmed.
/s/ Christopher M. Murray
/s/ E. Thomas Fitzgerald
/s/ Amy Ronayne Krause
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