The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
January 08, 2025
1:46 PM
In re Y. C. ZACHARY, Minor.
No. 368010
Wayne Circuit Court
Family Division
LC No. 2015-519838-NA
In re ZACHARY, Minors. No. 368011
Wayne Circuit Court
Family Division
LC No. 2015-519838-NA
Before: RIORDAN, P.J., and BOONSTRA and YATES, JJ.
PER CURIAM.
Respondents appeal as of right the order terminating respondent-mother’s parental rights
to YZ and respondent-father’s parental rights to YZ and DZ. We affirm.
I. FACTS AND PROCEEDINGS
Before the birth of the minors who are the subject of these proceedings, the trial court
terminated respondent-mother’s parental rights to four older children. She appealed the order to
this Court. In that appeal, we concluded that petitioner presented sufficient evidence to support
statutory grounds for termination of parental rights under MCL 712A.19b(3). In re Taylor-
Lee/Redmond/Redmond-Houser, unpublished per curiam opinion of the Court of Appeals, issued
April 12, 2018 (Docket No. 340200). However, we found that petitioner did not prove that
termination of respondent-mother’s parental rights was in the children’s best interests because the
trial court failed to sufficiently consider guardianship as an alternative to termination. Id. We
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therefore vacated the order and remanded to the trial court for further proceedings. Id. After
remand, petitioner planned guardianships for the four older children instead of reinitiating its
termination petition.
DZ was born in April 2018. Children’s Protective Services learned that respondents were
living in a house with deteriorating floors, bent walls, and exposed pipes. Respondent-mother was
not managing her mental illness. Respondents agreed to a safety plan in which DZ would be placed
with his paternal aunt. Petitioner did not seek jurisdiction over the child at that time because
respondent-father intended to seek sole custody of the child. However, respondent-father was
unable to obtain custody. Petitioner therefore initiated proceedings in November 2018. Petitioner
sought termination of respondent-mother’s parental rights in the initial disposition. Respondent-
father entered a plea of admission. The trial court terminated respondent-mother’s parental rights
in August 2019. She did not appeal that order.
YZ was born in July 2019. He was placed with the same paternal aunt who had care of
DZ. Petitioner petitioned for the court’s jurisdiction over YZ, but petitioner did not immediately
seek termination of either respondent’s parental rights. The original permanency plan for the
children was reunification with respondent-father for DZ and reunification with both respondents
for YZ. Respondents failed to make progress toward completing their treatment plans. They
visited the children only sporadically. They continued to live in the unsuitable house and never
allowed petitioner’s workers to see if repairs had been made. The children’s permanency plan was
changed to a concurrent plan for reunification and guardianship. Ultimately, however, petitioner
petitioned for termination of both respondents’ parental rights. The trial court terminated parental
rights under MCL 712A.19b(3)(a)(ii) (abandonment for 91 or more days), (c)(i) (failure to rectify
conditions leading to adjudication), (c)(ii) (failure to rectify other conditions), (g) (failure to
provide proper care and custody), and (j) (likelihood of harm to child if returned to parent’s care).
II. DOCKET NO. 368010
Respondent-mother argues that termination was inappropriate because petitioner failed to
offer services that accommodated her cognitive disability and mental health.1 “In order to preserve
an argument that petitioner failed to provide adequate services, the respondent must object or
indicate that the services provided to them were somehow inadequate.” In re Atchley, 341 Mich
App 332, 336; 990 NW2d 685 (2022) (quotation marks and citation omitted). The proper time to
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Respondent-mother’s statement of question presented challenges the trial court’s finding that
termination of her parental rights is in YZ’s best interests, but the substance of the argument is that
petitioner failed to accommodate her disability in its provision of services to achieve reunification.
However, “[t]he adequacy of the petitioner’s efforts to provide services may bear on whether there
is sufficient evidence to terminate a parent’s rights.” In re Rood, 483 Mich 73, 89; 763 NW2d 587
(2009) (opinion by CORRIGAN, J.). This Court is not bound by the appellant’s choice of a label, as
this would elevate form over substance. See Lieberman v Orr, 319 Mich App 68, 77 n 4; 900
NW2d 130 (2017). Respondent-mother makes no other arguments related to the child’s best
interests. We therefore address the issue respondent-mother argues rather than the argument
suggested by the heading she gives it.
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assert the need for accommodation is when the trial court adopts a service plan for facilitating
reunification. Id. at 336-337. Respondent-mother’s counsel argued during the trial-court
proceedings that she required accommodation but never made specific requests regarding services.
We conclude that this issue is sufficiently preserved for review.
This Court reviews “for clear error the trial court’s finding that there are statutory grounds
for termination of a respondent’s parental rights.” Id. at 343; MCR 3.977(K). The question of
whether petitioner provided sufficient services to a parent pertains to whether petitioner proved
statutory grounds for termination. In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005).
Accordingly, the trial court’s findings as to the sufficiency of services also is reviewed for clear
error. See Atchley, 341 Mich App at 338. “A finding is clearly erroneous if, although there is
evidence to support it, this Court is left with a definite and firm conviction that a mistake has been
made.” In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011).
Once a statutory ground for termination is established, the trial court shall order termination
of parental rights if it finds that termination is in the child’s best interests. MCL 712A.19b(5).
The trial court’s best-interest decision is reviewed for clear error. In re Brown/Kindle/Muhammad,
305 Mich App 623, 637; 853 NW2d 459 (2014). This Court reviews de novo whether the trial
court properly interpreted and applied the relevant statutes and court rules. In re Ferranti, 504
Mich 1, 14; 934 NW2d 610 (2019).
Petitioner “has an affirmative duty to make reasonable efforts to reunify a family before
seeking termination of parental rights.” In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637
(2017). Reasonable efforts need not be made in certain enumerated circumstances, including when
“[t]he parent has had rights to the child’s siblings involuntarily terminated and the parent has failed
to rectify the conditions that led to that termination of parental rights.” MCL 712A.19a(2)(c).
However, this Court reversed the prior order terminating respondent-mother’s parental rights, and
petitioner then opted to proceed with guardianships instead of termination. As part of reunification
efforts, petitioner “must create a service plan outlining the steps that both it and the parent will
take to rectify the issues that led to court involvement and to achieve reunification.” In re
Hicks/Brown, 500 Mich at 85-86. The case service plan must include a statement of the “[e]fforts
to be made by the agency to return the child to his or her home,” MCL 712A.18f(3)(c); the
“[e]fforts to be made by the child’s parent to enable the child to return to his or her home,” MCL
712A.18f(3)(b); and 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). Additionally, petitioner “also has
obligations under the ADA [Americans with Disabilities Act, 42 USC 12101 et seq.] that dovetail
with its obligations under the Probate Code.” In re Hicks/Brown, 500 Mich at 86. “Title II of the
ADA requires that ‘no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity.’ ” Id., quoting 42 USC 12132.
If petitioner fails to make reasonable modifications to services or programs to accommodate a
parent’s disability, petitioner has failed in its duty to provide reasonable efforts toward
reunification. In re Hicks/Brown, 500 Mich at 86.
However, the ADA does not provide a defense to proceedings to terminate parental rights.
In re Terry, 240 Mich App 14, 25; 610 NW2d 563 (2000). Moreover, “[w]hile the DHS has a
responsibility to expend reasonable efforts to provide services to secure reunification, there exists
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a commensurate responsibility on the part of respondents to participate in the services that are
offered.” In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012). “When challenging the
services offered, a respondent must establish that he or she would have fared better if other services
had been offered.” In re Sanborn, 337 Mich App 252, 264; 976 NW2d 44 (2021). The respondent
also must identify the services that would have accommodated his or her disability. Id. at 266.
Although respondent-mother’s counsel twice indicated to the trial court that respondent-
mother would need services that accommodated her cognitive disability, respondent-mother, her
counsel, and her guardian ad litem never provided any specific requests for accommodation.
Moreover, respondent-mother made no efforts to participate in services or to attempt to work with
petitioner toward reunification. Although multiple referrals were made for therapy, parenting
classes, and psychological evaluations, respondent-mother failed to complete the intake sessions.
She visited YZ only rarely. Petitioner’s workers were unable to communicate effectively with
respondent. She did not return phone calls or respond to letters and e-mails. When workers met
with her in person, respondent-mother engaged in erratic behavior, such as muttering to herself or
responding to “voices” that she heard. Respondent-mother argues that petitioner failed to help her
understand what she needed to do to achieve reunification, but she does not specify what the
workers might have done to aid her comprehension. Under these circumstances, either respondent-
mother was unwilling to cooperate with the reunification efforts, or her mental illness and impaired
cognition were too severe to allow her to participate in or benefit from services. Respondent-
mother thus fails to establish that petitioner failed to make accommodations that would have
enabled her to obtain a more favorable outcome. Id. at 264.
III. DOCKET NO. 368011
Respondent-father argues that petitioner failed to present sufficient evidence supporting
statutory grounds to terminate his parental rights and that the trial court erred by finding that
termination of his parental rights was in the children’s best interests.
The trial court terminated respondent-father’s parental rights under MCL
712A.19b(3)(a)(ii), (c)(i), (c)(ii), (g), and (j), which permit termination under the following
circumstances:
(a) The child has been deserted under either of the following circumstances:
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(ii) The child’s parent has deserted the child for 91 or more days and has
not sought custody of the child during that period.
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(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:
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(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.
(ii) Other conditions exist that cause the child to come within the court’s
jurisdiction, the parent has received recommendations to rectify those conditions,
the conditions have not been rectified by the parent after the parent has received
notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that the conditions will be rectified
within a reasonable time considering the child’s age.
* * *
(g) The parent, although, in the court’s discretion, financially able to do so,
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.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of the
child’s parent, that the child will be harmed if he or she is returned to the home of
the parent.
Petitioner is required to prove only one statutory ground for termination by clear and
convincing evidence. In re Moss, 301 Mich App 76, 86-88; 836 NW2d 182 (2013).
Respondent-father states that these grounds were not proved, but he offers only generalized
reasoning that he made some progress and that he would have made more satisfactory progress if
the children were placed in a guardianship and he was allowed more time with his treatment plan.
He does not address the specific statutory grounds. With respect to subsection (3)(a)(ii), the foster-
care supervisor testified that respondent-father’s last visit before the supplemental petition was
filed in March 2023 took place in March 2022. This exceeds the 91-day period provided by the
statute. Evidence also supports subsection (3)(c)(i). Although more than three years elapsed
between the date that respondent-father was adjudicated as a respondent in DZ’s case and the date
of the termination hearing, and nearly three years elapsed in YZ’s case, respondent-father failed
to establish adequate housing, failed to complete parenting class, failed to undergo a psychological
evaluation, and failed to visit the children with any regularity.
With respect to subsection (3)(c)(ii), petitioner did not specify what other conditions arose
after the trial court asserted jurisdiction over the children. However, a new condition arose when
respondent-mother’s parental rights to DZ were terminated, but respondent-father continued to
reside with her. Arguably, this evidence supports termination under subsection 3(c)(ii), but if it
does not, the trial court’s error in including this statutory ground was harmless because only one
ground is necessary for termination. In re Moss, 301 Mich App at 88.
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Subsection (3)(g) was proved because respondent-father was unable to provide an adequate
home or consistent care. Grounds for termination under subsection (3)(j) were proved because the
children would likely be harmed if placed in a physically unsafe home with parents who
demonstrated no commitment to providing for their care. In consideration of the lengthy period
of time that respondents were given to prepare for reunification, respondent-father’s argument that
he was not given enough time is without merit. Thus, the trial court did not clearly err by finding
that at least one statutory ground for termination was proved by clear and convincing evidence.
Respondent-father also states that petitioner’s services were inadequate, but he does not
specify how they were deficient or how they could have been better tailored to serve his needs.
He therefore fails to establish that petitioner failed in its duty to make reasonable efforts toward
reunification. In re Sanborn, 337 Mich App at 264.
“Even if the trial court finds that the [petitioner] has established a ground for termination
by clear and convincing evidence, it cannot terminate the parent’s parental rights unless it also
finds by a preponderance of the evidence that termination is in the best interests of the children.”
In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015), citing MCL
712A.19b(5). “The trial court should weigh all the evidence available to determine the children’s
best interests.” In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). In In re White, this
Court stated:
To determine whether termination of parental rights is in a child’s best interests,
the court should consider a wide variety of factors that may include the child’s bond
to the parent, the parent’s parenting ability, the child’s need for permanency,
stability and finality, and the advantages of a foster home over the parent’s home.
The trial court may also consider a parent’s history of domestic violence, the
parent’s compliance with his or her case service plan, the parent’s visitation history
with the child, the children’s well-being while in care, and the possibility of
adoption. [Id. at 713-714 (quotation marks and citations omitted).]
Although placement with a relative ordinarily weighs against termination, a trial court may
nonetheless terminate parental rights if it finds that termination is in the child’s best interests. In
re Olive/Metts Minors, 297 Mich App 35, 43; 823 NW2d 144 (2012).
Respondent-father had five years after DZ was removed from his care, and four years after
YZ was removed, to enable himself to parent his children or at least to establish himself as a
consistent presence in their lives. In that time, he visited only sporadically and made no
appreciable efforts to make progress with his treatment plan. At the time of the termination
hearing, the children had lived their entire lives in their aunt’s care. Respondent-father argues that
the witnesses could not have known whether he had a bond with his children, but the trial court as
finder of fact could infer that a parent who only saw his very young children occasionally could
not have built a relationship with them. In respondent-mother’s prior appeal, this Court concluded
that respondent-mother’s strong family support and the grandmother’s preference for guardianship
were factors weighing against termination in the best-interests calculus. In re Taylor-
Lee/Redmond/Redmond-Houser, unpub op at 9. Respondent-father, however, showed mainly
indifference to his sister’s efforts to facilitate a relationship between him and the children. Under
these circumstances, the trial court’s findings as to best interests were not clearly erroneous.
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IV. CONCLUSION
The trial court did not err by terminating respondents’ parental rights. Therefore, we
affirm.
/s/ Michael J. Riordan
/s/ Mark T. Boonstra
/s/ Christopher P. Yates
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