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In re Keener10/20/2005
UNPUBLISHED
Before: Owens, P.J., and Fitzgerald and Schuette, JJ.
Respondent appeals as of right from an order terminating her parental rights to the minor child under MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.
Respondent resides in Tennessee and did not personally appear at any of the hearings in this matter, but was represented by counsel at most of the proceedings. According to respondent's attorney, respondent was unable to travel to Michigan because she is disabled due to a closed-head injury. The trial court originally obtained jurisdiction over the child based on the father's no contest plea. The court thereafter scheduled a jury trial to determine jurisdiction with respect to respondent, but subsequently entered a "default" against her when she failed to appear for the scheduled trial.
Respondent first argues that the trial court erred by assuming jurisdiction on the basis of a default for her failure to appear at the adjudicative hearing. We agree with respondent that there is no authority for applying the default procedures in MCR 2.603 to child protective proceedings. See MCR 3.901(A)(2). Rather, the trial court may assert jurisdiction over a child only if a statutory ground for jurisdiction is established by a respondent's plea, or by a preponderance of the evidence at an adjudicative trial. MCR 3.971; MCR 3.972; In re PAP, 247 Mich App 148, 153; 640 NW2d 880 (2001). In this case, it is unclear from the record whether the trial court proceeded with a hearing in respondent's absence, see MCR 3.972, because a complete transcript of the adjudicative hearing is not available.
Regardless, respondent did not file an appeal by right from the dispositional order entered after the trial court's jurisdictional decision. See MCR 3.993(A)(1). Consequently, respondent may not now collaterally attack the trial court's exercise of jurisdiction in this appeal by right from the trial court's later order terminating her parental rights. In re Hatcher, 443 Mich 426, 444; 505 NW2d 834 (1993); In re Powers, 208 Mich App 582, 587-588; 528 NW2d 799 (1995).
In any event, the trial court had already obtained jurisdiction over the child based on the father's no contest plea. The trial court's jurisdiction is tied to the child, not the parents, and the court was not required to independently establish jurisdiction with respect to respondent. In re CR, 250 Mich App 185, 200-205; 646 NW2d 506 (2002).
For these reasons, we reject this claim of error.
Respondent next argues that petitioner failed to offer appropriate services to accommodate her disabilities under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. In In re Terry, 240 Mich App 14, 24-25; 610 NW2d 563 (2000), this Court held that a parent may not raise alleged violations of the ADA as a defense in proceedings to terminate parental rights because termination proceedings are not "services, programs or activities" under the ADA.
Nevertheless, the ADA does require a public agency, such as the Family Independence Agency (FIA), to make reasonable accommodations for those individuals with disabilities so that all persons may receive the benefits of public programs and services. Thus, the reunification services and programs provided by the FIA must comply with the ADA. . . .
Any claim that the FIA is violating the ADA must be raised in a timely manner, however, so that any reasonable accommodations can be made. Accordingly, if a parent believes that the FIA is unreasonably refusing to accommodate a disability, the parent should claim a violation of her rights under the ADA, either when a service plan is adopted or soon after
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