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IN THE MICHIGAN SUPREME COURT Appeal from the Michigan Court of Appeals
SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.
In re J Ferranti, Minor Supreme Court No. 157907-08 Court of Appeals Nos. 340117; 340118 Ostego County Circuit Court Family Division LC No. 13-000071-NA
Vivek S. Sankaran (P68538) Attorneys for Appellants University of Michigan Law School Child Welfare Appellate Clinic 701 S. State St., 2023 South Hall Ann Arbor, MI 48109-3091 (734) 763-5000
David M. Delaney 113 N. Illinois Ave. P.O. Box 1771 Gaylord, MI 49734
Manda M. Breuker Ostego County Prosecutor’s Office 800 Livingston Blvd., Ste. 3D Gaylord, MI 49735
____________________________________________________________________________
AMICI CURIAE BRIEF OF THE LEGAL SERVICES ASSOCIATION OF MICHIGAN AND
MICHIGAN STATE PLANNING BODY FOR LEGAL SERVICES
Sarah E. Waidelich (P80225) Rian C. Dawson (P81187) Counsel for Amici Curiae Legal Services Association of Michigan Michigan State Planning Body for Legal Services HONIGMAN MILLER SCHWARTZ AND COHN LLP 315 E. Eisenhower Parkway Suite 100 Ann Arbor, MI 48108 Tel: (734) 418-4242 [email protected] [email protected]
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TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ................................................................................ iii
STATEMENT OF INTEREST OF AMICI CURIAE .................................................................. viii
INTRODUCTION .......................................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 4
ARGUMENT .................................................................................................................................. 6
I. In re Hatcher Was Wrongly Decided and Should be Overruled ........................................ 6
A. Child Protective Proceedings are One, Continuous Proceeding ............................. 8
B. The Court Has Permitted a Parent’s Challenge to Earlier Non-Final Orders in a Child Protective Proceeding in an Appeal of Right of a Termination of Parental Rights 12
C. The Case Law on Which Hatcher Lays its Foundation is Distinguishable ........... 15
D. The Hatcher Rule is Fundamentally Unfair .......................................................... 17
E. The Hatcher Rule Undermines the Goals of the Juvenile Code ........................... 17
II. Appellate Courts Should Use the Same Standard Applicable in Other Child Protective Cases to Review a Challenge to the Initial Adjudication .................................................. 19
III. If This Court Chooses Not to Overturn Hatcher, It Should Carve Out an Exception to Adequately Account for Due Process Concerns ................................................................ 20
IV. Judicial Home Visits and Unrecorded In Camera Interviews Have No Place in a Child Protective Proceeding ........................................................................................................ 22
A. A Trial Court Judge Should Not Be Permitted to Visit a Respondent’s Home .... 22
B. In Camera Interviews Have No Place in a Child Protective Proceeding .............. 24
CONCLUSION ............................................................................................................................. 27
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TABLE OF AUTHORITIES
Page(s)
CASES
In re Brock, 442 Mich 101; 499 NW2d 752 (1993) ........................................................................................... 20, 21
In re Danielle D, 595 NW2d 544 (1999) .......................................................................................................................... 26
Edwards v Meinberg, 334 Mich 355; 54 NW2d 684 (1952) ................................................................................................... 16
In re Ferranti, SC No. 157907, COA No. 340117; 340118 ........................................................................... viii, ix, 4, 5
In re Ferris, 151 Mich App 756; 391 NW2d 468 (1986) ......................................................................................... 19
In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993) .......................................................................................... passim
Helen S.K. v. Samuel M.K., 288 P3d 463 (Alaska 2012) .................................................................................................................. 24
In re Hill, 501 Mich 1047; 909 NW2d 260 (2018) ............................................................................................. 6, 9
Hilliard v. Schmidt, 231 Mich App 316, 586 N.W.2d 263 (1998) ....................................................................................... 25
In Interest of HKW, 417 P3d 875 .......................................................................................................................................... 26
In re HRC, 286 Mich App 444, 781 NW2d 105 (2009) ........................................................................... 3, 4, 24, 26
In re Hudson, 483 Mich 928; 765 NW2d 618 (2009) .......................................................................................... passim
In re Jackson, 498 Mich 943; 872 NW2d 221 (2015) ................................................................................................. 19
Jackson City Bank & Trust v Frederick, 271 Mich 538; 260 NW 908 (1935) ..................................................................................................... 15
In re JK, 468 Mich 202; 661 NW2d 216 (2003) ................................................................................................. 19
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Joint Anti-Fascist Refugee Comm v McGrath, 341 US 123 (1951) ................................................................................................................................. 3
In re Jones, 499 Mich 862; 874 NW2d 129 (2016) ................................................................................. 1, 10, 12, 13
In re Kanjia, 308 Mich App 660; 866 NW2d 862 (2014) ................................................................................... 10, 21
Life Ins Co of Detroit v Burton, 306 Mich 81; 10 NW2d 315 (1943) ..................................................................................................... 16
In re Mason, 486 Mich 142; 782 NW2d 747 (2010) ................................................................................. 9, 12, 14, 15
Mathews v Eldridge, 424 US 319 (1976) ................................................................................................................................. 2
In re Mays, 490 Mich 993; 807 NW2d 307 (2012) .......................................................................................... passim
In re Mitchell, 485 Mich 922; 773 NW2d 663 (2009) .......................................................................................... passim
People v Carines, 460 Mich 750; 597 NW2d 130 (1999) ............................................................................................ ix, 20
People v LeBlanc, 465 Mich 575; 640 NW2d 246 (2002) ................................................................................................. 20
In re Rood, 483 Mich 73; 763 NW2d 587 (2009) ............................................................................................. 12, 14
In re Sanders, 495 Mich 394; 852 NW2d 524 (2014) .......................................................................................... passim
Santosky v Kramer, 455 US (1982) ...................................................................................................................................... 20
Santosky v Kramer, 455 US 745 (1982) ................................................................................................................................. 1
In re SLH, 277 Mich App 662; 747 NW2d 547 (2008) ......................................................................................... 10
Stanley v Illinois, 405 US 645 (1972) ................................................................................................................................. 2
Travis v Preston, 249 Mich App 338; 643 NW2d 235 (2002) ......................................................................................... 23
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In re Williams, 286 Mich App 253; 779 NW2d 286 (2009) ......................................................................................... 20
Ynclan v. Woodward, 237 P3d 145 (Okla. 2010) .................................................................................................................... 25
Ypsilanti Fire Marshal v Kircher, 273 Mich App 496; 730 NW2d 481 (2007) ......................................................................................... 11
STATUTES
MCL 710.56(2) ........................................................................................................................................... 19
MCL 712A.1(3) .......................................................................................................................................... 17
MCL 712A.1 et seq ....................................................................................................................................... 2
MCL 712A.13a(2) ......................................................................................................................................... 9
MCL 712A.19 ............................................................................................................................................... 9
MCL 712A.19a ............................................................................................................................................. 9
MCL 712A.19b ............................................................................................................................................. 9
MCL 722.21-31....................................................................................................................................... 4, 25
NH Rev Stat Ann § 168-C:28 (2018).......................................................................................................... 11
OTHER AUTHORITIES
MCR 2.507(D) ............................................................................................................................................ 22
MCR 3.901(A)(2) ....................................................................................................................................... 22
MCR 3.961 .................................................................................................................................................... 9
MCR 3.962 .................................................................................................................................................. 10
MCR 3.965 .................................................................................................................................................. 10
MCR 3.971(B) ............................................................................................................................................ 17
MCR 3.972 ........................................................................................................................................ 7, 10, 17
MCR 3.973 .................................................................................................................................................. 10
MCR 3.973; 3.965; 3.976; 3.977 .................................................................................................................. 2
MCR 3.976 .................................................................................................................................................. 10
MCR 3.977 .................................................................................................................................................. 10
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MCR 3.993(A) ................................................................................................................................ 10, 11, 19
MCR 7.202(6) ............................................................................................................................................. 11
S Ct R 306(a)(5) (2018) .............................................................................................................................. 11
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QUESTIONS PRESENTED FOR REVIEW
1. Should In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993), which held that the collateral attack rule applied to bar a respondent-parent from challenging, on appeal from an order terminating parental rights, the trial court’s initial exercise of jurisdiction in the same proceeding, be overturned as incorrectly decided?
Amici curiae answer: Yes.
2. If Hatcher was not correctly decided and is overturned, (a) by what standard should courts review a respondent-parent’s challenge to the initial adjudication, in light of the respondent-parent’s failure to appeal the first dispositional order appealable of right; and (b) what must a respondent-parent do to preserve for appeal any alleged error in the adjudication?
Amici curiae answer: The Court should adopt the same standard for review as applies in other child protective questions. That is, the standard should be de novo/clear error for preserved errors and plain error for unpreserved errors, as set forth by this Court in People v Carines, 460 Mich 750; 597 NW2d 130 (1999).
3. Alternatively, if Hatcher was correctly decided, must due process concerns override the collateral bar rule to permit collateral attacks in certain cases?
Amici Curiae Answer: Yes.
4. Should a trial court be permitted to visit a respondent-parent’s home to observe its condition, and if so, what parameters should apply to doing so?
Amici Curiae Answer: No. But if this Court decides that a visit to a respondent-parent’s home is permissible, it should mandate that a reviewable record be created of the visit.
5. Should a trial court be permitted to conduct an in camera interview of a child who is the subject of a child protective proceeding, and if so, what parameters should apply to doing so?
Amici Curiae Answer: No. But if this Court decides in camera interviews are permissible, it should adopt the same strict guidelines applied to in camera interviews of children in child custody proceedings.
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STATEMENT OF INTEREST OF AMICI CURIAE
The Legal Services Association of Michigan (“LSAM”) and the Michigan State Planning
Body for the Delivery of Legal Services (“MSPB” and together with LSAM, “Amici”) submit this
joint amici curiae brief to the Michigan Supreme Court in In re Ferranti.
LSAM is a Michigan nonprofit organization incorporated in 1982. LSAM’s members are
twelve of the largest civil legal services organizations in Michigan and collectively provide legal
services to low-income individuals and families in more than 50,000 cases per year.1 LSAM
members have broad experience with a variety of family law cases where a low-income parent’s
rights to custody of his or her child are at stake, including custody and parenting time cases, third
party custody actions, minor guardianship cases, child abuse and neglect cases, paternity
proceedings, and adoption proceedings. LSAM members share a deep institutional commitment
to ensuring that the rights of low-income families, parents, and children are respected in these
proceedings. Almost all LSAM members work in public benefits, family law, and housing cases
with low-income families that are involved in and impacted by family law proceedings. All LSAM
members are institutionally interested in and committed to providing fair and equal access to the
justice system for low-income individuals.
MSPB is an unincorporated association of thirty-five individuals, including leaders of the
bench, the legal services community, the private bar, and community services organizations.
Initially created through a mandate of the Legal Services Corporation (“LSC”), MSPB acts as a
1 LSAM’s members are: the Center for Civil Justice, Elder Law of Michigan, Lakeshore Legal Aid, Legal Aid of Western Michigan, Legal Services of Eastern Michigan, Legal Services of Northern Michigan, Michigan Advocacy Program, Michigan Indian Legal Services, Michigan Migrant Legal Assistance Program, Michigan Legal Services, Michigan Poverty Law Program, and the University of Michigan Clinical Law Program.
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forum for planning and coordinating the state’s efforts to deliver civil and criminal legal services
to the poor. Although LSC no longer requires that states have a formally designated State Planning
Body, MSPB continues to function at the request of the programs and their state funder. MSPB’s
mission is to plan, organize, and coordinate an effective civil legal services delivery system in the
State of Michigan. In addition to coordinating pro bono services, MSPB advocates on behalf of
the state’s indigent to the Michigan Supreme Court, the State Bar of Michigan, and the State Court
Administrative Office. Central to MSPB is its commitment to assuring equal access for the poor
to the legal system, including the family court system.
On July 5, 2018, this Court took under consideration the application for leave to appeal In
re Ferranti, SC No. 157907, COA No. 340117; 340118, and in that order invited Amici to submit
a brief in the matter. This Court outlined five separate issues for the parties to address; Amici here
address each of these questions in turn and submit this joint brief in the interest of protecting the
fundamental constitutional and statutory rights that courts at the highest levels have recognized
attach to and protect the parent-child relationship.
When this Court held in In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993), that a
challenge to a trial court’s exercise of jurisdiction was a collateral attack unless appealed
immediately after the initial dispositional order, it crafted a rule that unfairly threatens these
fundamental rights. The Hatcher rule almost entirely forecloses challenges to certain fundamental
errors in termination proceedings—especially when those errors are suffered by indigent parents
who often have to navigate child protective proceedings with limited or no assistance of counsel.
The Hatcher rule fails to accomplish the goals of the system and denies parents the due process to
which they are entitled. This Court should overturn its prior decision in In re Hatcher, reverse
the judgment of the Court of Appeals, and hold that the standard of review set forth in People v
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Carines, 460 Mich 750; 597 NW2d 130 (1999), governs unpreserved errors in the adjudicatory
process.
Amici further believe that the fact-finding process by the trial court in this case was
seriously flawed. With the variety of accepted tools and procedures a court has for gathering
information in child custody proceedings, a court acting outside of these strictures to gather facts
to inform its decision violates the due process rights owed to parties to child protective
proceedings. Amici thus respectfully request that the Court rule that, consistent with the Court
Rules and case law, a trial court can neither visit a respondent’s home as a part of fact-finding in
such proceedings nor conduct an unrecorded in camera interview of a child subject to a child
protective proceeding. Among other prejudices, these events cannot be adequately recorded and
the trial court cannot be adequately cross examined. The lack of record renders it impossible for
parents to mount meaningful challenges or for appellate courts, such as this one, to fairly evaluate
the factual basis for the trial court’s decisions. Respondent-parents are at a disadvantage to identify
the basis from which they must appeal, particularly if they have limited resources or are unassisted
by counsel.
Parents have a fundamental right to rear their children. And although this right is not
absolute, due process requires that a record be kept so that a party may adequately exercise a
challenge if a party’s parental rights are terminated.
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INTRODUCTION
Twenty-five years ago, this Court, in In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993),
erected a serious barrier to a parent seeking to challenge certain fundamental errors in child
protective proceedings. Under the Hatcher rule, a parent who failed to appeal errors in the
adjudication process of a child protective proceeding immediately following the initial
dispositional hearing forever waived the right to do so at a later date. The Court issued this ruling
despite the fact that at no point are parents advised of their right to appeal the initial dispositional
order, their right to counsel in an appeal of that order, or the permanent forfeiture of their right to
challenge adjudicatory errors if they choose not to appeal.
In the years since, the Court has gone to considerable lengths to avoid the harsh reality of
Hatcher by permitting litigants to challenge adjudicatory errors in termination of parental rights
appeals. See, e.g., In re Jones, 499 Mich 862; 874 NW2d 129 (Mem) (2016); In re Sanders, 495
Mich 394; 852 NW2d 524 (2014); In re Mitchell, 485 Mich 922; 773 NW2d 663 (Mem) (2009);
In re Hudson, 483 Mich 928, 936; 765 NW2d 618 (Mem) (2009); In re Mays, 490 Mich 993, 994
n1; 807 NW2d 307 (Mem) (2012). Despite this Court’s decisions limiting Hatcher, its collateral
attack rule remains as a bar to the otherwise legitimate jurisdictional challenges of parents,
especially indigent parents who lack the sophistication to navigate the system. Hatcher was based
on a crucial misunderstanding of the continuous nature of termination proceedings and was
consequently incorrectly decided and should be overturned.
The Hatcher rule also raises serious constitutional issues by infringing on fundamental
constitutional rights of parents. A parent’s right to the care, custody, and control of his or her
children is one such fundamental right: a “natural parent’s desire for and right to the
companionship, care, custody, and management of his or her children is an interest far more
precious than any property right.” Santosky v Kramer, 455 US 745, 758-759 (1982). At the same
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time, the state has a legitimate interest in protecting “the moral, emotional, mental, and physical
welfare of” children, and in certain circumstances this legitimate state interest may justify the
separation of parent from child. Stanley v Illinois, 405 US 645, 652 (1972). In order to remove a
child from the custody of their parents, and in so doing deprive the parent of a fundamental right,
the Constitution mandates that significant procedural protections be afforded to the parent. See,
e.g., Mathews v Eldridge, 424 US 319, 333 (1976) (“The right to be heard before being condemned
to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a
criminal conviction, is a principle basic to our society.”).
Further, in Michigan, the juvenile code, MCL 712A.1 et seq, and Subchapter 3.900 of the
Michigan Court Rules (the “Court Rules”) set forth the procedures by which the state may exercise
authority over minor children and, ultimately, deprive a parent of his or her parental rights. The
Court Rules provide for a continuous process that consists of a series of different types of hearings.
See MCR 3.973; 3.965; 3.976; 3.977 (governing various hearings in child protective proceedings).
Courts in turn frame child protective proceedings as comprising two phases. See In re
Sanders, 495 Mich 394, 404-407; 852 NW2d 524 (2014). First, the family court must decide in
the adjudicative phase whether to take jurisdiction over the child. Id. at 404–406. In the second
phase of this process—the dispositional phase—the court must determine how to ensure the safety
and well-being of the child. Id. at 406-407. Under Hatcher, once the court enters an order
terminating parental rights, the parent may not collaterally attack any error—however serious—in
the first (adjudication) of these two phases on appeal. 443 Mich at 444. A parent loses the ability
to challenge errors even though they are never told that they can appeal the error, that they have
the right to a lawyer to appeal the error, and that they will forever lose the right to challenge the
error if they choose not to appeal it.
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Separate from the Hatcher problem, this case also presents serious issues relating to the
trial court’s fact-finding process. “Notice and opportunity to be heard are fundamental to due
process of law.” Joint Anti-Fascist Refugee Comm v McGrath, 341 US 123, 178 (1951)
(DOUGLASS, J., concurring). Without notice of rights or notice of evidence, respondents are at a
disadvantage in their opportunity to be heard. When parental rights are at stake, due process is
vital to ensuring our legal system protects families, parents, and children.
Here, the trial court ran afoul of these due process protections by conducting its own in-
home visitation and in camera interview with the child. While home visits and in camera
interviews conducted by the trial court may offer more information to the court, such information
comes at the expense of a reviewable record and the opportunity to cross examine. These practices
also ignore the other tools available to trial courts to gain the same information without sacrificing
longstanding due process protections.
Courts have rarely addressed home visits by trial courts in child protective proceedings.
This Court should take the opportunity to do so and clarify that such visits are improper, as they
violate the parent’s constitutional due process rights—especially when, as it was here, the visit is
a fact-finding mission on an issue central to the case. A home visit by the trial court severely
restricts the parent’s ability to challenge the witnesses and evidence against them; parents are
hardly in a position to cross examine the judge overseeing their case. Moreover, when a
termination decision is based on the trial judge’s personal observations, no written record exists,
further limiting parents’ due process rights and the important role of appellate courts.
On in camera interviews, however, the Court of Appeals has unequivocally held that “there
is no authority that permits a trial court presiding over a juvenile matter to conduct in camera
interviews, on any subject whatsoever, with the children.” In re HRC, 286 Mich App 444, 452,
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781 NW2d 105 (2009); see also MCL 722.21-31. And further, that “the use of an unrecorded and
off the record in camera interview in the context of a juvenile proceeding, for whatever purpose,
constitutes a violation of parents’ fundamental due process rights.” Id. at 453
This case illustrates both the importance of due process protections in child protective
proceedings and the problems that arise when the trial court fails to abide by those protections.
Three key errors weave through the entire Ferranti child protection proceeding, from the
adjudication to the termination of parental rights: (1) the court accepted pleas from the Ferrantis
at the adjudication stage without advising them of the rights they were waiving; (2) the trial court
conducted an in-home visitation; and (3) the trial court conducted an off-the-record in camera
interview with the child at the center of the proceeding.
This Court should reverse the decision of the Court of Appeals and correct these errors.
This Court should: (1) overrule Hatcher, (2) hold that home visits conducted by the trial court are
impermissible; and (3) hold that in camera interviews of a child in a child protective proceeding
are impermissible. But if this Court determines that Hatcher was not wrongly decided, it should
carve out an exception that adequately accounts for due process concerns. Similarly, if the Court
decides that a home visit by a trial court and in camera interview of the child are permissible, it
should adopt clear and strict guidelines and procedures for doing so, to ensure that due process
considerations are properly protected.
FACTUAL BACKGROUND
Jessica Ferranti is a very ill teenager, and the youngest member of the Ferranti family. At
the time she was removed from her parents’ care, she lived with her two brothers, sister, and
parents—Michael and Susan Ferranti—in a mobile home in Gaylord. She suffers from spina bifida
and neurogenic bladder; these medical conditions make mobility difficult and require Jessica to
use a catheter every few hours to release her bladder. In October 2015, the Department of Health
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and Human Services (“DHHS”) filed a petition to remove Jessica from her parents’ care because
of their “lack of follow-through on [her] medical needs.” 10-29-15 Tr. at 9.
In December 2015, the trial court adjudicated the fitness of Michael and Susan Ferranti.
The trial court accepted their pleas regarding the health of their daughter, without advising the
Ferrantis of the rights they were waiving. 12-21-15 Tr. at 7-8. They made no admissions
regarding the cleanliness of their home, which was a key issue in the case. Id.
The case proceeded to the dispositional phase. At the January 12, 2016 dispositional
hearing, the Court adopted the parent-agency treatment plan proposed by DHHS. The core of the
service plan was to ensure that the Ferrantis could maintain a clean home for Jessica and meet her
medical needs. Further, the psychologist who evaluated the Ferrantis found that both Michael and
Susan were fit parents and that the family’s unsupervised visits with Jessica could continue
because “it didn’t appear that there was any significant risk of physical or emotional abuse.” 5-
10-17 Tr. at 17.
During the review hearings, the trial court visited the home, but made no record of that
visit. Updated Case Service Plan dated 5-10-17, at 2. The trial court conducted an in camera
interview of Jessica, but again kept no record and did not inform the Ferrantis’ counsel when the
interview was or that it had even taken place. 7-5-17 Tr. at 15. The trial court called its decision
to terminate parental rights “one of the tougher decisions the Court has faced,” and stated that “this
is a closer question than usual.” (Trial Ct Op at 6). Nonetheless, the trial court considered the
home visit and in camera interview and terminated the Ferrantis’ parental rights in August 2017.
8-7-17 Tr. at 6-7. The Ferrantis timely appealed.
In upholding the trial court’s decision, the Court of Appeals summarily relied on Hatcher
to reject the Ferrantis’ argument that the trial court’s assumption of jurisdiction was defective. In
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re Ferranti, unpublished per curium decision of the Court of Appeals, issued May 10, 2018,
(Docket No. 340117; 340118) 2018 WL 2165548, *5 (Attached hereto as Appendix A). The Court
of Appeals further recognized that although the trial court erred in personally visiting the home,
the Ferrantis did not show that the error affected their substantial rights. Id. However, the Court
of Appeals noted that the trial court made no reference whatsoever to the home visit in its order
terminating parental rights, though it summarized witness testimony regarding the state of the
home. Id. at *6. Finally, the Court of Appeals rejected the Ferrantis’ argument that the in camera
interview violated thier due process rights because the court found that the Ferrantis waived their
rights by encouraging the trial court to talk to their daughter. Id. at *7. However, at no point did
the Ferrantis state that they were consenting to an in camera interview with no record whatsoever.
ARGUMENT
I. In re Hatcher Was Wrongly Decided and Should be Overruled
The central question the In re Hatcher Court addressed was “whether the probate court’s
assumption of subject matter jurisdiction over a minor child may be challenged by the child’s
parent after a termination decision and, if so, whether the entire termination proceedings should
be declared void ab initio.” Hatcher, 443 Mich at 428. Ultimately, the Court held that subject
matter jurisdiction could not be challenged after a termination hearing because it was a collateral
attack.
Since then, Michigan’s appellate courts have inconsistently applied the Hatcher Rule,
leading to disparate results across child protective proceedings. As Justice McCormack noted,
“[g]iven the inapt application of the collateral bar rule to the direct appeal of a single child-
protective proceeding, not surprisingly, we have already carved out many exceptions to the
Hatcher rule. . . . With all of these carve-outs, it is hard to say what is left of the Hatcher rule.” In
re Hill, 501 Mich 1047; 909 NW2d 260 (2018) (MCCORMACK, J., dissenting).
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Hatcher was wrongly decided. The bases undergirding the Hatcher decision
fundamentally misunderstand the nature of child protective proceedings and the goals of the
system as a whole because: (a) child proceedings are one, continuous proceeding; (b) the Court
permits challenges to non-final orders in appeals of termination of parental rights; (c) the case law
on which Hatcher relies is distinguishable; (d) the Hatcher rule condones a lack of notice that is
fundamentally unfair; and (e) the Hatcher rule undermines the goal of reunification by encouraging
(and requiring) interlocutory appeals.
At the initial trial during the adjudication stage of proceedings, the parents in Hatcher
entered into valid pleas that their child should become a temporary ward of the court. Id. at 430.
Throughout the review hearings, the father did not challenge the court’s jurisdiction. Id. Years
later, after the court terminated the parental rights of the parents, the father tried to challenge the
trial court’s exercise of jurisdiction by arguing “that the probate court did not establish any facts
at the [initial adjudication] hearing to justify the temporary wardship [of the child]” and thus that
the probate court failed to establish its subject matter jurisdiction. Id. at 436.
This Court held that “the probate court’s subject matter jurisdiction is established when the
action is of a class that the court is authorized to adjudicate, and the claim stated in the complaint
is not clearly frivolous.” Id. at 437. “The valid exercise of the probate court’s statutory jurisdiction
is established by the contents of the petition after the probate judge or referee has found probable
cause to believe that the allegations contained within the petitions are true.” Id. Completion of
these proceedings allows a court to acquire jurisdiction through an adjudication hearing under
MCR 3.972.
Hatcher reasoned that the respondent confused the distinction between whether the court
has subject matter jurisdiction and whether the court properly exercised its discretion in applying
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that jurisdiction. Id. at 438. The Court concluded that a genuine lack of subject matter jurisdiction
may be challenged at any time, but the exercise of that jurisdiction can be challenged only on direct
appeal:
Want of jurisdiction must be distinguished from error in the exercise of jurisdiction. Where jurisdiction has once attached, mere errors or irregularities in the proceedings, however grave, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void, and until set aside it is valid and binding for all purposes and cannot be collaterally attacked. Error in the determination of questions of law or fact upon which the court’s jurisdiction in the particular case depends, the court having general jurisdiction of the cause and the person, is error in the exercise of jurisdiction. Jurisdiction to make a determination is not dependent upon the correctness of the determination made.
Id. at 438-439 (citing Jackson City Bank & Trust v Frederick, 271 Mich 538, 545-546; 260 NW
908 (1935)). Because the respondent in Hatcher could have directly appealed the probate court’s
exercise of jurisdiction by challenging the sufficiency of the underlying petition—which was
considered by the court at an adjudication hearing—the Court held that he was not entitled to
collaterally attack it following subsequent termination proceedings.
Since Hatcher was decided in 1993, this Court has, in subsequent decisions, limited
Hatcher’s reach. This Court’s decisions in Hudson, Mitchell, Mays, and Sanders, cited below, all
illustrate the Court’s limitation of Hatcher. The Court has rightly limited Hatcher to its facts
because Hatcher was wrongly decided.
A. Child Protective Proceedings are One, Continuous Proceeding
Hatcher incorrectly characterized a challenge to adjudication in a termination of parental
rights appeal as a “collateral attack.” This characterization misrepresents the adjudication order,
which is itself a non-final order in a series of orders that comprise a child protective proceeding.
And as Justice McCormack astutely observed, “this view of a child-protective action
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misunderstands the processes and rules that govern it, and disservices children and families by that
misunderstanding.” In re Hill, 501 Mich 1047 (MCCORMACK, J., dissenting).
This Court and lower courts have repeatedly recognized that in Michigan, child protective
proceedings are a single, continuous action comprised of two phases: the adjudicative phase and
the dispositional phase. See In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014) (holding
that due process requires every parent receive an adjudication hearing before the State can interfere
with the constitutionally-protected parent-child relationship); see also In re Mason, 486 Mich 142,
155, 155 n6; 782 NW2d 747 (2010) (“A child protective action such as this consists of a series of
proceedings, including a preliminary hearing at which the court may authorize a petition for
removal of a child from his home, MCL 712A.13a(2), review hearings to evaluate the child’s and
parents’ progress, MCL 712A.19, permanency planning hearings, MCL 712A.19a, and, in some
instances, a termination hearing, MCL 712A.19b.” (emphasis added)). Put differently, evidence
presented during the proceedings builds from one hearing to the next, so that, in effect, the hearings
constitute one continuous proceeding. In re Hudson, 483 Mich 928, 936; 765 NW2d 618 (Mem)
(2009) (CORRIGAN, J., concurring) (identifying “the due process problems that pervaded these
proceedings” including failure of the court to advise respondent of consequences of her plea (citing
In re LaFlure, 48 Mich App 377, 391; 210 NW2d 482 (1973))).
Michigan Court Rules govern child protective proceedings and set forth a specific process
for ensuring a child’s welfare while protecting a parent’s constitutional due process rights. The
adjudicative phase is the first in the series of steps on a procedural ladder that may ultimately lead
to a final order terminating parental rights. Proceedings begin when the Department of Health and
Human Services (the “DHHS”) files a petition requesting specific relief. MCR 3.961. The court
then holds a preliminary hearing to decide whether to authorize the DHHS petition and whether to
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place the child outside the care of his or her parents. MCR 3.962; MCR 3.965. Next, the court
holds an adjudication hearing and must decide if abuse or neglect took place, and, either by plea
or by trial, the court may adjudicate the parent as unfit and exercise jurisdiction over the children.
MCR 3.972.
Only after validly exercising jurisdiction can the court determine during the second
phase—the dispositional phase—what course of action will best ensure the child’s welfare.
Sanders, 495 Mich at 404. For a child within the court’s jurisdiction, the court must decide what
protective action it will take, and then issue a dispositional order, which is the first order appealable
by right. MCR 3.973, MCR 3.993(A). Although nowhere stated in the Court Rules, Michigan
appellate courts have held that a parent can challenge errors in the adjudicatory process in an appeal
of the initial dispositional order. E.g., In re Jones, 499 Mich. 862, 862; 874 NW2d 129 (2016); In
re Kanjia, 308 Mich App 660, 660; 866 NW2d 862 (2014); In re SLH, 277 Mich App 662, 668;
747 NW2d 547 (2008); In re Alejandro, unpublished opinion per curiam of the Court of Appeals,
issued May 22, 2014 (Docket Nos 317740, 318250), available at 2014 WL 2159520, at *1 n1
(attached hereto as Appendix B); In re Guido-Seger, unpublished opinion per curiam of the Court
of Appeals, issued February 7, 2017 (Docket No. 333529), available at 2017 WL 510501 (attached
hereto as Appendix C).
After the initial dispositional hearing, the court then holds a series of review hearings to
monitor the status of the children and the parent’s progress towards reunification, and to determine
whether the children can return home. Following the series of review hearings, the court holds
another hearing to make a permanency plan for the children. MCR 3.976. Finally, if necessary,
the court may hold a hearing to terminate parental rights. MCR 3.977.
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By Court Rule in these proceedings, a party may appeal as of right from: (i) an order of
disposition; (ii) an order terminating parental rights; (iii) any order required by law to be appealed
to the Court of Appeals; and (iv) any final order. MCR 3.993(A). “Final order” is not defined
anywhere in subchapter 3.900 of the Court Rules or in the juvenile code. A “final judgment” in
civil cases, however is defined as “the first judgment or order that disposes of all the claims and
adjudicates the rights and liabilities of all the parties.” MCR 7.202(6) (emphasis added).
Notably, an adjudication order is neither mentioned in the Court Rule, nor does it fit the
definition of “final judgment.” 2 An adjudication order is thus a non-final order in the context of
a child protective proceeding. In fact, the first order in a child protective proceeding that fits the
definition of “final judgment” is an order terminating parental rights. As Michigan courts
frequently observe, “when a party claims an appeal from a final order, it may raise on appeal all
issues related to other orders entered in the case.” E.g., Ypsilanti Fire Marshal v Kircher, 273
Mich App 496, 499 n1; 730 NW2d 481 (2007).
In sum, because a child protective proceeding is one, continuous proceeding from which
the termination of parental rights is the first final order in the case, Hatcher incorrectly
characterized challenges to adjudication as a “collateral attack.” A challenge to adjudication is
2 Other states apply similar rules to the Hatcher rule barring collateral attacks, but unlike Michigan, those states clearly define adjudication orders as final and appealable. See, e.g., Ark R App P—Civ 2(c)(3) (noting that orders resulting from adjudication and disposition hearings are “final appealable orders”); Ill Comp Stat S Ct R 306(a)(5) (2018) (“Orders Appealable by Petition” include “interlocutory orders affecting . . . the relocation (formerly known as removal) of unemancipated minors”); Kans Stat Ann § 38-2273(a) (2018) (“An appeal may be taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights”) (emphasis added); NH Rev Stat Ann § 168-C:28 (2018) (“‘Final dispositional order’ shall also include any ruling or order arising from an administrative hearing held or initiated by any administrative agency, including the department, in which a finding of child abuse or neglect is made”).
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instead an “issue[ ] related to other orders” in a child protective proceeding that a respondent can
raise on appeal from a final order.
B. The Court Has Permitted a Parent’s Challenge to Earlier Non-Final Orders in a Child Protective Proceeding in an Appeal of Right of a Termination of Parental Rights
Errors in earlier proceedings in a child protective action can have a direct impact on
subsequent proceedings and determinations. See, e.g., In re Jones, 499 Mich 862; 874 NW2d 129
(2016); In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014); In re Mays, 490 Mich 993, 993;
807 NW2d 307 (Mem) (2012); In re Mason, 486 Mich 142; 782 NW2d 747 (2010); In re Rood,
483 Mich 73; 763 NW2d 587 (2009); In re Hudson, 483 Mich 928; 763 NW2d 618 (Mem) (2009);
In re Mitchell, 485 Mich 922; 773 NW2d 663 (Mem) (2009). This is because, as aforementioned,
evidence presented during the proceedings builds from one hearing to the next, so that in effect
the hearings constitute one, continuous proceeding. See LaFlure, 48 Mich App at 391.
In each of the cases cited above, this Court permitted parents to directly appeal the
termination of their parental rights based, in large part, on alleged errors committed by the trial
court in the early stages of child protective proceedings because those errors impacted the validity
of the ultimate termination decision. In In re Jones, the Court of Appeals acknowledged that the
circuit court failed to ensure that the respondent-mother’s jurisdictional plea was voluntary and
accurate before accepting it during the adjudication phase. In re Jones, unpublished opinion per
curiam of the Court of Appeals, issued October 27, 2015 (Docket No. 326252); 2015 WL 6506175
(attached hereto as Appendix D). But the Court of Appeals nonetheless determined that this
constituted a collateral attack under Hatcher and thus declined to address the respondent-mother’s
jurisdictional challenge. Id. at 3. Based on the DHHS concession of error, this Court, however,
vacated the Court of Appeals’ order and remanded it “for a new adjudication determination” with
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no explanation as to why and with no discussion of Hatcher’s application. In re Jones, 499 Mich
862; 874 NW2d 129 (2016).
In Sanders, the respondent mother, after being advised of her procedural rights, entered
into a no contest plea agreement to the allegations in the petition. Sanders, 495 Mich at 402. The
child’s father separately requested a trial on the allegations against him. Id. The trial court applied
the one-parent doctrine, adjudicated the children as neglected, ordered the children into foster care,
and required the father to comply with services based solely on the mother’s plea. Id. at 401. At
a subsequent dispositional review hearing, the father filed a motion challenging the court’s
authority to remove the children from his care and ordering him to comply with services, since he
had never been adjudicated unfit. Id. at 402. The court denied his request and the Court of Appeals
denied the father’s application for leave to appeal. Id. at 403.
This Court reversed the trial court’s order and held that the trial court exceeded its authority
by issuing a dispositional review order infringing upon the father’s constitutional rights absent a
proper adjudication of unfitness against him. Id. at 415. Importantly, this Court reached the critical
merits of the decision and did not see Hatcher as a bar to challenging errors in the adjudicatory
process in a post-dispositional appeal. Id.
Similarly, in Mays, this Court reversed the termination of an unadjudicated father’s
parental rights because the trial court erred in finding that the respondent had failed to successfully
complete and benefit from parenting classes, despite the certificate respondent submitted
indicating successful completion of the class. Mays, 490 Mich at 993. There too the father
challenged an aspect of the adjudicatory process only after a termination order. But while the
Mays court avoided discussing the Hatcher rule by focusing on the trial court’s failure to consider
legally admissible evidence during the dispositional phase rather than infirmities in the
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adjudication phase, it specifically noted that the father had the ability to challenge errors in the
adjudicatory process upon remand. Id. at 994 n1 (“Respondent’s failure to preserve this challenge
[to the ‘one parent doctrine’] in the trial court or the Court of Appeals illustrates the need to raise
this issue in a timely fashion. . . . At any rate, respondent will have the continuing opportunity to
raise this issue on remand.”). In other words, the Hatcher rule did not bar the father from
continuing to challenge errors in the adjudicatory process in the dispositional stage of the case.
In other instances, the Court has reversed the termination of parental rights when
respondents have not received an adequate opportunity to meaningfully participate in the earlier
stages of the proceedings. In Mason, this Court reversed the termination of an incarcerated
parent’s rights in part because the trial court failed to facilitate his participation via telephone at
earlier hearings during both the adjudication and disposition phases, and DHHS failed to offer him
services. Mason, 486 Mich at 146, 154-55. The Court reasoned that errors made during the earlier
phase impacted and consequently invalidated decisions made during later hearings. Id. Similarly,
in Rood, this Court reversed the termination of a father’s parental rights because the trial court
failed to make reasonable efforts to involve him in the proceedings and did not provide him with
proper notice of earlier hearings, despite knowing his current address. Rood, 483 Mich at 111.
Again, this Court, though avoiding Hatcher, recognized that when a trial court denies the
opportunity to become meaningfully involved in the early-stages of a child protective proceeding,
that error can directly prejudice a subsequent termination decision. Id.
Finally, and most directly on point, in Hudson and Mitchell, this Court held that the trial
court erred in failing to advise parents of their procedural rights during the adjudication phase,
including the failure to advise of the right to counsel and that their adjudication pleas could be
used in a later proceeding to terminate their parental rights. Hudson, 483 Mich at 928; Mitchell,
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485 Mich at 922. In each case, this Court reasoned that the trial court committed specific errors
in earlier proceedings that affected the validity of the later decision to terminate parental rights.
As Justice Corrigan aptly noted in Hudson, “[T]he combination of the trial court’s errors at the
preliminary hearing in failing to appoint counsel and in accepting respondent’s invalid plea
affected the entire proceeding that followed.” Hudson, 483 Mich at 935 (CORRIGAN, J.,
concurring). Justice Corrigan concluded that “[t]he consequences of these errors pervaded the 26-
month child protective proceeding that followed and deprived respondent of due process.” Id.
Like an adjudication order, the decisions at issue in the aforementioned cases are non-final
orders. The Court has consistently allowed parents to challenge these non-final orders in appeals
of termination of parental rights because of the continuing impact such decisions have on the
ultimate termination decision.
C. The Case Law on Which Hatcher Lays its Foundation is Distinguishable
In its reasoning to support the collateral attack rule, Hatcher misconstrued the nature of
child protective proceedings and relied on prior decisions in which the collateral attack rule was
rightfully applied because the cases, unlike child protective proceedings, involved truly separate
proceedings.
The three principal cases on which Hatcher relied are civil cases where a second action
was commenced to overturn a prior final order in a separate, previous action on the basis of a lack
of jurisdiction. These cases are distinguishable from child protective proceedings, which comprise
a single, continuous action. Hudson, 483 Mich at 936; Mason, 486 Mich at 154.
First, in Jackson City Bank & Trust, 271 Mich 538; 260 NW 908 (1935), the plaintiffs
initiated a new suit to challenge a divorce decree entered in a previous case in order to set aside a
conveyance of real estate in a second action. Id. at 541-42. The plaintiff’s principal argument was
that the trial court in the first matter lacked jurisdiction to enter the divorce. Id. at 543.
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Similarly, in Life Ins Co of Detroit v Burton, 306 Mich 81; 10 NW2d 315 (1943), the
plaintiff filed a lawsuit against defendants on a surety bond. Id. at 82. A year after the court
entered its order finding defendants liable on the surety bond, the plaintiff’s assignee levied
property of defendants and sold it at a sheriff’s sale. Id. at 85. The defendants then filed a motion
to set aside the sale on the basis that, a year earlier when the court entered its final order related to
the surety bond, it lacked jurisdiction to do so. Id. at 85-86.
Finally, in Edwards v Meinberg, 334 Mich 355; 54 NW2d 684 (1952), the plaintiff first
sued the defendant over a loan on an implied contract theory. Id. at 357. After a directed verdict
in favor of plaintiff, defendant moved to dismiss for lack of jurisdiction and to set aside the
judgment. Id. Both motions were denied, and defendant did not appeal. Id. The plaintiff then
started a separate garnishment proceeding, and the defendant argued that because the trial court
had lacked jurisdiction to adjudicate the matter in the initial dispute, the judgment on which
garnishment was based was void. Id. at 358. The Court of Appeals held that his argument was “a
collateral attack upon the judgment in the original suit,” that the first court had both personal and
subject matter jurisdiction, and that the “jurisdictional defect” purportedly raised by defendant was
merely a venue problem. Id. The court thus denied the defendant’s motion. Id.
Clearly, the cases Hatcher relied on properly deploy the collateral attack rule in
circumstances with two truly separate actions. The reasoning fails to apply with the same force to
child protective proceedings, which this court has repeatedly recognized as one continuous
proceeding. And so, Hatcher’s reasoning for applying the collateral attack rule to bar parents from
challenging non-final interim child protective decisions at the conclusion of the case rests on a
faulty legal foundation.
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D. The Hatcher Rule is Fundamentally Unfair
The Hatcher Rule is fundamentally unfair because, although the Court Rules provide
parents with the right to appeal the initial dispositional order, they do not provide procedures to
allow parents to exercise that right.
The Court Rules do not require trial courts to inform respondent-parents of their right to
appeal the initial dispositional order or that they are waiving their right to challenge the initial
disposition if they fail to appeal. Furthermore, the Court Rules do not provide the right to appellate
counsel in appeals of the initial dispositional order, and there is no right to a transcript at public
expense. As a result of these impediments, few appeal the initial dispositional order. In fact, the
Court of Appeals does not even track the number of appeals of the initial dispositional order as of
right because so few occur.
The Court of Appeals has even acknowledged the injustice of Hatcher’s prohibition on
post-termination challenges to court jurisdiction in child protective proceedings. Noting that, since
Hatcher, both the Court of Appeals and this Court have “whittled away at [Hatcher’s] prohibition”
on post-termination collateral attacks, the Court of Appeals explicitly stated that “the Supreme
Court may wish to consider amending MCR 3.971(B) and MCR 3.972 to require appellate right
notifications at the adjudicative phase.” In re Noffsinger, unpublished opinion per curiam of the
Court of Appeals, issued Nov 29, 2016 (Docket No. 331108); 2016 WL 6995056, at *7 (attached
hereto as Appendix E).
E. The Hatcher Rule Undermines the Goals of the Juvenile Code
Reunification is the general, overarching goal of the juvenile code. The juvenile code
“shall be liberally construed so that each juvenile coming within the court’s jurisdiction receives
the care, guidance, and control, preferably in his or her own home, conducive to the juvenile’s
welfare and the best interest of the state.” MCL 712A.1(3) (emphasis added). In the process of
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achieving this goal, the courts aim for efficiency and finality. Hatcher, as currently applied,
undermines both efficiency—since it encourages what are essentially interlocutory appeals—and
finality—since courts have been inconsistent in determining when a clearly erroneous adjudication
decision is or is not appealable. Even more important to the overall purpose of the statute is that
courts reach the right result in cases involving fundamental rights; Hatcher permits clearly
erroneous adjudication decisions to stand without appellate review.
Hatcher also encourages an adversarial environment at the outset of child protective
proceedings. In many child abuse and neglect cases, parents cooperate with DHHS in order to
receive services that address significant family problems. The idea of accepting a petition permits
families to access services and creates a cooperative relationship between the parents and
caseworker. Hatcher, however, encourages parents to oppose (and appeal) the jurisdictional
petition, rather than cooperate with services providers. This disserves the child, parent, and the
goals of the state.
If the ultimate goal is reunification, the court system should not incentivize interlocutory
appeals, which disrupt potential settlement discussions and delay the ultimate resolution. Yet this
is precisely what Hatcher does. By essentially requiring that a parent challenge the adjudication
order before a final order is entered or risk waiving the issue, the court incentivizes superfluous
appeals. With each interim appeal, the ultimate disposition of the case becomes ever more delayed.
This delay results in an unnecessary waste of court and government resources and keeps children
and parents in limbo longer than necessary.
As justification for its rule, the Hatcher court stated that it wanted to “provide repose to
adoptive parents and others who rely upon the finality of probate court decisions.” Hatcher, 443
Mich at 444. Regardless of the Hatcher rule, parents will always be able to appeal termination of
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parental rights decisions. MCR 3.993(A). Furthermore, adoptions cannot occur until termination
of parental rights appeals are exhausted. In re Jackson, 498 Mich 943, 943; 872 NW2d 221 (2015)
(requiring any trial court finalizing adoption to state in the record that it has “determined that any
appeal of the decision to terminate parental rights has reached its disposition”); In re JK, 468 Mich
202, 216-217; 661 NW2d 216 (2003) (finding that the trial court improperly allowed foster parents
to adopt child before resolution of respondent-mother’s application for leave to appeal); see also
MCL 710.56(2) (prohibiting trial court from ordering an adoption if a parent has filed an appeal
of right from an order terminating parental rights).
An appeal from the termination of parental rights does not create a new cause of action to
undermine the final judgment after a direct appeal has been exhausted. In fact, before Hatcher,
the Court of Appeals allowed parents to challenge adjudications in termination of parental rights
appeals and evaluated those errors. In re Ferris, 151 Mich App 756, 745; 391 NW2d 468 (1986)
(“[W]e hold that attacks on that assumption of jurisdiction may be raised collaterally in the
subsequent appeal to this Court from the dispositional order.”) (finding no error at the adjudicative
hearing).
Thus, by allowing a respondent-parent to raise adjudication issues following a termination,
efficiencies are achieved with no corresponding detrimental effect on finality.
II. Appellate Courts Should Use the Same Standard Applicable in Other Child Protective Cases to Review a Challenge to the Initial Adjudication
This Court has consistently used the plain error rule to evaluate unpreserved claims in child
protective appeals. E.g., Hudson, 483 Mich at 931; Mitchell, 485 Mich 922. It should do the same
here.
While this Court has held that parties that intentionally relinquish—or waive—a known
right lose the ability to raise challenges to alleged errors on appeal, parties that simply fail to
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preserve the issue at the trial court still maintain the right to challenge it under the plain error
standard. People v Carines, 460 Mich 750, 762 n7; 597 NW2d 130 (1999). Generally, preserved
non-constitutional issues are subject to “clear error” review, whereas preserved questions of
constitutional law are reviewed de novo. E.g., People v LeBlanc, 465 Mich 575, 579; 640 NW2d
246 (2002). In contrast, unpreserved constitutional errors are reviewed under the “plain error
doctrine.” E.g., Carines, 460 Mich at 752-753, 764.
Given the fundamental rights at stake, courts have consistently applied this “plain error
doctrine” in child welfare cases. E.g., Hudson, 483 Mich at 931; Mitchell, 485 Mich 922; In re
Williams, 286 Mich App 253, 274; 779 NW2d 286 (2009). Under the plain error analysis, a
respondent must establish that (1) an error occurred; (2) the error was plain; and (3) the error
prejudiced respondent by affecting the outcome of the lower court proceedings. Carines, 460 Mich
at 763 (citing United States v Olano, 507 US 725, 731–734 (1993)). This doctrine adequately
protects the interests of respondent-parents who wish to challenge the adjudicatory process after
an order of termination has been entered. If they fail to preserve the issue at the trial court, they
must meet this high standard.
III. If This Court Chooses Not to Overturn Hatcher, It Should Carve Out an Exception to Adequately Account for Due Process Concerns
Under both the Michigan Constitution and the United States Constitution, the government
may not deprive a person of life, liberty, or property without due process of law. US Const, Am
XIV; Const 1963, art 1, § 17. Due process is a flexible concept requiring fundamental fairness.
In re Brock, 442 Mich 101, 111; 499 NW2d 752 (1993) (quoting Mathews v Eldridge, supra).
During the adjudicative phase of a child protective proceeding, the state seeks to infringe upon a
parent’s right to direct the care of his or her children. See Brock, 442 Mich at 111 (1993); see also
Santosky v Kramer, 455 US at 753–754 (1982). Thus, “the procedures used in adjudicative
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hearings protect the parents from the risk of erroneous deprivation of this interest,” and from a
consequent violation of due process. Brock, 442 Mich at 111; see also In re Kanjia, 308 Mich
App 660, 662; 866 NW2d 862 (2014) (“While the adjudicative phase is only the first step in child
protective proceedings, it is of critical importance because the procedures used in adjudicative
hearings protect the parents from the risk of erroneous deprivation of their parental rights.”). An
adjudication finding is what allows the state to pierce the autonomy of the family unit and to make
decisions concerning the future of the child.
The Hatcher rule creates a lack of due process in the adjudicative phase of the child
protective proceeding. While a parent technically has a right to appeal the adjudication finding in
an appeal of the initial dispositional order, nothing requires the court to actually tell parents of that
right. Nothing requires the court to appoint counsel for the parent to pursue that appeal. And
nothing requires the court to tell a parent that if she fails to pursue the appeal, she will forever
waive the right to challenge the adjudication finding. Thus, a parent who loses her constitutional
right to parent her child after an adjudication and who wishes to challenge that finding may not
learn anything about the appellate process until after her rights are terminated. At that point, the
Court Rules require the court to inform a parent of her right to appeal the decision and the right to
counsel to pursue that appeal. But by then, under Hatcher, it is too late to challenge the
adjudication finding. In other words, the first time she is advised of her right to appeal, she also
learns that she is foreclosed from challenging certain fundamental errors.
These due process concerns are raised in every adjudication challenge. This Court should
be cognizant of these concerns in any rule it creates to eliminate or modify Hatcher. If this Court
preserves the Hatcher rule it should, at the very least, modify the rule to require trial courts to (1)
advise parents of their right to appeal the initial dispositional order; (2) advise parents of their right
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to counsel to appeal the initial dispositional order; and (3) advise parents that their failure to appeal
the initial dispositional order will prevent them from ever challenging the adjudication decision in
a subsequent termination of parental rights appeal.
IV. Judicial Home Visits and Unrecorded In Camera Interviews Have No Place in a Child Protective Proceeding
Amici are fully supportive of the trial court obtaining and evaluating as many facts and as
much information as possible; more information results in a better evaluation of the child’s best
interests. But this information must still be gathered within our system’s due process strictures.
Numerous accepted tools exist for the trial court to compile information and evidence, including
reports from social workers and guardians ad litem. These resources are independent, possess
expertise in the field, and, importantly, the information they propound is part of a reviewable
evidentiary record. When the trial court conducts an independent factual investigation and
supersedes these other sources as a source of information, it deprives the respondent-parents of a
record and the ability to test the information through cross examination.
By prohibiting home visits and in camera interviews by the trial court in child protective
proceedings and instead relying on the tools available to the court to glean information, a
respondent-parents’ due process rights are protected without sacrificing the court’s access to robust
information.
A. A Trial Court Judge Should Not Be Permitted to Visit a Respondent’s Home
Under Michigan’s current legal framework, a trial court has no authority to visit a
respondent-parent’s home. While the Court Rules that apply generally to civil cases allow that
“the court sitting as trier of fact without a jury may view property or a place where a material event
occurred,” this rule has not been incorporated into the child protective court rules as required by
the Juvenile Code. MCR 2.507(D); MCR 3.901(A)(2) (“Other Michigan Court Rules apply to
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juvenile cases . . . only when this subchapter specifically provides.” (emphasis added)). Further,
numerous courts have held that a court exceeds its authority and commits reversible error when it
views a location as part of an independent investigation into disputed facts. E.g., Travis v Preston,
249 Mich App 338, 350; 643 NW2d 235 (2002) (trial court made an improper “independent
investigation and observation” when it visited site where alleged noxious odors were present);
People v Williams, unpublished opinion per curiam of the Court of Appeals, issued May 24, 2016
(Docket No. 326401), at *3, available at 2016 WL 3004598 (trial court judge erred when he
“visited the scene and conducted his own investigation regarding whether the events as testified
by the officer were possible”) (attached hereto as Appendix F).
By conducting a home visit itself, the court considers evidence that is outside the record
and in so doing deprives the respondent-parents of the opportunity to cross-examine or impeach
the witness, or to present contradictory evidence. In re HRC, 286 Mich. at 452. And this
deprivation is wholly unnecessary: the information gained from a judicial home visit is equally
available through other tools that are routinely used in child protective proceedings and that also
preserve respondent-parents’ due process rights.
Numerous independent third parties, such as social workers, are engaged throughout the
child protective proceeding process to conduct home visits and evaluations. These culminate into
reports and recommendations submitted to the trial court. Without exceeding its authority, courts
are free to direct these independent parties to opine more thoroughly as to living conditions, if that
is a chief issue in the case. These independent parties, their opinions, and their reports are then
available for cross examination by the respondent-parents in order to test their information and
conclusions. Using these tools is more productive than allowing a trial court to visit the site—
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guardians and social workers possess expertise and perspective in child protective proceedings that
trial courts do not—without sacrificing due process.
Until rules are legislatively created, this Court should not condone a trial court’s visit of a
respondent-parent’s home. When a trial court does so, it exceeds its authority and puts a
respondent-parents’ due process rights at stake.
B. In Camera Interviews Have No Place in a Child Protective Proceeding
“[T]he use of an unrecorded and off the record in camera interview in the context of a
juvenile proceeding, for whatever purpose, constitutes a violation of parents’ fundamental due
process rights.” In re HRC, 286 Mich App 444, 456; 781 NW2d 105 (2009) (emphasis added).
As In re HRC, a case directly on point, explained:
Given the characteristics of the in camera interview, the risk of an erroneous deprivation of [a parent’s] fundamental rights is substantial, while the value of an in camera procedure is low. Unrecorded, off the record, in chambers interviews of children could potentially unduly influence a court’s decision and could affect the court’s findings, not just with regard to the child’s best interest, but also with regard to whether the statutory grounds for termination exist. Not only that, but as we have already noted, such procedures provide no opportunity for cross-examination, impeachment, or meaningful appellate review. The risk of error associated with the use of the in camera interview is plainly unwarranted, especially considering the fact that the testimony elicited through such a procedure can be obtained another way at little cost to the state or the parties involved; for example, through another witness’s testimony or by documentary evidence.”
Id. at 455-56. This Court should apply this precedent to this case and reaffirm that the use of an
in camera interview is impermissible in a juvenile proceeding, such as this one, where a parent’s
parental rights are at stake.3
3 Michigan is not alone in so holding. Courts across the country have remarked that, while in camera interviews can be useful to gain an understanding of the child’s preference, they can create due process problems for parents’ rights. See, e.g., Helen S.K. v. Samuel M.K., 288 P3d 463, 473
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In camera interviews are common in child custody cases because the preference of the
child is a factor in the custody determination that the Court must address; no procedures exist for
conducting such interviews in proceedings under the juvenile code. MCL 722.21-31. But even in
child custody cases, in camera interviews are closely regulated. For example, the interview must
be recorded and sealed, in order to permit meaningful appellate review and to ensure the integrity
of the custody decisions. Id. As the Court of Appeals noted in Molloy v. Molloy, the interview
record is of great import because it “sufficiently memorialize[s] the interview to allow an informed
review.” 247 Mich App 348, 637 NW2d 803 (2001), aff’d in part and vacated in part, 466 Mich
852, 643 NW2d 574 (2002).
But unlike a child custody proceeding where “a custody decree does not sever the parental
bond and is subject to modification,” child protective proceedings can culminate in a termination
of parental rights. Hilliard v. Schmidt, 231 Mich App 316, 319, 586 N.W.2d 263, 265 (1998).
And so, “due process rights in a custody case are not implicated to the degree present in termination
of parental rights cases.” Id. With the rights at stake, and without a governing procedure, “[the
trial court] is not free to pick and choose procedures from the [Child Custody Act] and implant
them into juvenile proceedings . . . nothing in the juvenile code, the caselaw, the court rules, or
otherwise permits a trial court presiding over a termination of parental rights case to conduct in
(Alaska 2012) (noting that “in-camera interviews should be used rarely, and only when truly necessary, because the in chambers process creates a risk of infringing the due process rights of the parents”); Ynclan v. Woodward, 237 P3d 145, 152–53 (Okla. 2010) (noting that, while in chambers interviews can be useful in gaining the child’s perspective, and should be done “in the calm of the judge’s chambers, away from the pressure of the parents,” but, nevertheless, that conducting such an interview undeniably raises concerns regarding the parent’s due process rights).
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camera interviews of the children for purposes of determining their best interests.” In re HRC,
286 Mich App at 454.
But if this Court deems that an in camera interview was proper in child protective
proceedings, then it must hold such interviews to the same procedures as in child custody cases:
they must be limited in scope and must be recorded so that there can be meaningful review on
appeal.4
Moreover, until this Court decides specific guidelines for what the in camera interview
will entail, parents will continue to have their parental rights terminated by “waiving” a process
with no consistent structure. See In re Warsinski/Kimmel, unpublished per curiam opinion of the
Court of Appeals, issued February 20, 2018 (Docket No 338104) at *6, available at 2018 WL
987421 (finding that Respondent’s claim that the trial court improperly considered in camera
interviews with the children is waived because respondent agreed to the in camera interviews)
(attached hereto as Attachment G). If Michigan developed a clear structure for approaching in
camera interviews, parents would be put on notice of what rights they were waiving, making this
4 Numerous states have procedural safeguards in place to protect respondent-parents’ due process rights. In Kentucky, the Family Court, which hears termination of parental rights cases, requires an electronic or written record of in camera child interviews, and that such records be made available on motion and order of the court. Ky Fam Ct R Proc Prac 27(1). In Colorado, courts require that a transcript or recording of the interview be made available, upon request, in situations in which a parent needs (1) to determine whether the court’s findings, insofar as they relied on facts from the interview, are supported by the record, or (2) an opportunity to contest information supplied by the child during the interview and relied on by the court. People In Interest of HKW, 417 P3d 875, 881. Other jurisdictions take the process a step further, to ensure there is enough evidence already on the record to justify the in camera interview at the outset. In Nebraska, before an in camera child interview during a termination proceeding, the state, at a separate hearing, must “make some showing” to justify the need for an in camera interview because due process is applicable in termination proceedings. In re Danielle D, 595 NW2d 544, 549-50 (1999).
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process clearer for judges, and allowing parents to maintain their due process rights during a
pivotal time.
CONCLUSION
For these reasons, Amici respectfully request that the Court reverse the judgment of the
Court of Appeals and remand this case to the trial court for an adjudication that conforms to the
procedural mandates of the Court Rules and for a termination decision that considers only evidence
properly in the record.
Respectfully Submitted,
/s/ Sarah E. Waidelich Sarah E. Waidelich (P80225) Rian C. Dawson (P81187) Counsel for Amici Curiae Legal Services Association of Michigan Michigan State Planning Body for Legal Services HONIGMAN MILLER SCHWARTZ AND COHN LLP 315 E. Eisenhower Parkway Suite 100 Ann Arbor, MI 48108 Tel: (734) 418-4242 [email protected] [email protected]
Dated: September 14, 2018
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IN THE MICHIGAN SUPREME COURT Appeal from the Michigan Court of Appeals
SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.
In re J Ferranti, Minor Supreme Court No. 157907-08 Court of Appeals Nos. 340117; 340118 Ostego County Circuit Court Family Division LC No. 13-000071-NA
Vivek S. Sankaran (P68538) Attorneys for Appellants University of Michigan Law School Child Welfare Appellate Clinic 701 S. State St., 2023 South Hall Ann Arbor, MI 48109-3091 (734) 763-5000
David M. Delaney 113 N. Illinois Ave. P.O. Box 1771 Gaylord, MI 49734
Manda M. Breuker Ostego County Prosecutor’s Office 800 Livingston Blvd., Ste. 3D Gaylord, MI 49735
____________________________________________________________________________
PROOF OF SERVICE
I hereby certify that on September 14, 2018, I electronically filed the foregoing document, along with the Certificate of Service, using the TrueFiling System which will send notification of such filing to all registered counsel of record.
Dated: September 14, 2018 /s/ Sarah E. Waidelich Sarah E. Waidelich (P80225)
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2018 WL 2165548Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
UNPUBLISHEDCourt of Appeals of Michigan.
IN RE FERRANTI, Minor.
No. 340117; 340118|
May 10, 2018
Otsego Circuit Court, Family Division, LC No. 13–000071–NA
Before: Shapiro, P.J., and M. J. Kelly and O'Brien, JJ.
Opinion
Per Curiam.
*1 In these consolidated appeals, respondent-father and respondent-mother appeal as of right the trial court's orderterminating their parental rights to their minor daughter, JF, under MCL 712A.19b(3)(c)(i ) (the conditions that led tothe adjudication continue to exist), and (g) (the parent is unable to provide proper care and custody). We affirm.
JF has significant medical needs; she has spina bifida, stage 3 chronic kidney disease, and neurogenic bladder. As a resultof her medical conditions, JF has a stoma in her umbilicus to catheterize her bladder for emptying and a stoma to flushher bowel. JF's catheter needs to be regularly maintained in a sanitary environment because, due to her paralysis, shewould not know if she had a urinary tract infection (UTI). To monitor JF's condition—and to ensure that any UTI isidentified quickly—regular blood and urine tests are necessary.
On October 29, 2015, Child Protective Services (CPS) worker Amy Croff filed a petition to remove JF from her homeand place her in the care, custody, and supervision of petitioner, Department of Health and Human Services (DHHS).At an emergency hearing held on the day that the petition was filed, Croff testified that the original complaint concernedthe conditions in the home. Croff described the family home as very cluttered. Along with the two respondents, JF livedwith her three older siblings. The family had one cat, three kittens, and a dog. The family lived in a mobile home, and JFusually crawled on the floor because it was difficult to maneuver her wheelchair. According to Croff, there were cat feceson the floor of the home, a urine smell throughout the home, and fecal matter all over the bathroom that JF shared with
her three siblings. Croff had concerns about JF crawling on the floor given the animal feces and urine on the floor. 1 Croffalso expressed concern about JF's hygiene. When Croff met with JF at her school, JF had grime on her chest and neckand smelled strongly of body odor and urine, and the school told Croff that JF's body odor was a continual problem.
Croff testified that the petition was also based on concerns that JF's medical needs were not being adequately addressed.Croff was informed by JF's school that catheters were not being provided. Croff also testified that JF had missednumerous medical appointments that were crucial to sustaining JF's physical health. Croff testified that JF had not seena urologist since November 2014—even though she was supposed to have follow-up visits every six months—and thatJF's prescription medication had not been refilled.
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According to Croff, the family had an extensive history with CPS. JF had been previously removed from the home dueto the home conditions and medical neglect in September 2013. JF was returned home in August 2014 with services putin the home for three months. The family had previously participated in foster care services, ongoing CPS cases, CPSinvestigations, had Families First and Northern Families Intervention Services (NFIS) programs in the home, counselingservice, medical transportation, food assistance, adult service assistance, food pantry referrals, gas cards, and housingassistance.
*2 Respondent-father testified that JF bathed every night while in his care, but, because of the spina bifida, “she's goingto smell like urine no matter.” Croff testified, however, that when JF was in foster care during the 2013 case, she didnot have a strong urine smell about her. Respondent-father also admitted that “we're not the cleanest people ... but thehouse gets cleaned at least once a week.” He explained that the urine smell in JF's bathroom was from the Pull–Ups thatshe wore at night, and he denied the existence of human feces all over the bathroom. Respondent-mother testified thatJF's bedding was washed daily. At the conclusion of the emergency hearing, the trial court authorized DHHS to removeJF from the home, but instructed JF's lawyer-guardian ad litem (LGAL) to inspect the home.
At the continued hearing, JF's LGAL informed the court that JF's room was a “little disheveled” and had a “little odorof urine,” but he did not see feces on the floor and overall found the home habitable and “suitable generally.” Crofftestified that the home conditions had improved since her last visit—although it continued to have a urine odor—andthat JF had a new mattress.
The trial court indicated that it had ongoing concerns regarding JF's medical care and that it wanted to hear from herdoctor. The court stated that “if cleanliness was the only things [sic], we wouldn't be [here].”
At the continued hearing, a nurse practitioner at the Pediatric Nephrology Department at the University of Michigantestified that JF has chronic kidney disease, a neurogenic bladder, and a current UTI, which can decrease kidney function.The nurse explained that it was important for JF to be seen every three to four months for lab work to determine herkidney function and to have her blood pressure, growth, and weight monitored. The nurse testified that JF was prescribedDetrol, which is used to make catheterizing easier and help prevent infection, but that it had not been filled since March2015. Croff testified that it was important for JF to keep up with her doctor appointments because JF needed regularultrasounds to determine the size and function of her bladder and kidneys. Croff explained that, in the past JF's kidneyshad swollen as the result of bladder pressure from not catheterizing properly.
Respondent-father testified that he did not feel that JF needed an aide at school to assist with catheterization and thatthe school had only contacted him twice for catheters. Respondent-father also stated that, as far as he knew, JF wastaking her medication. According to respondent-father, the floors in the home were clean enough for JF to crawl and hedid not consider the floors to be a health risk to JF. Respondent-father did not believe that there was any basis for theallegations in the petition and that he and respondent-mother were “doing their best.”
The trial court found probable cause to continue the proceedings and set the matter for trial. After a dispositional hearing,respondents were ordered to participate with the parent-agency treatment plan, which required respondents to completepsychological evaluations, provide a clean home for JF, and meet JF's medical needs.
At a permanency planning hearing on October 18, 2016, JF's foster care worker, Michelle Klein, testified that she mademonthly visits to respondents' home. The latest visit was three weeks before the hearing. Klein testified that she noticedthat JF's bedroom was clean during that visit, but the bathroom was “deplorable,” with urine on the floor, fecal matter onthe toilet, and the shower, floor, and toilet appeared to have never been cleaned. Klein noted that JF used that bathroomduring her visits. Klein also testified that she noticed the smell of cat urine from cats urinating on piles of clothing onthe floor. According to Klein, her review of the file showed a history of similar conditions in the home for 25 years.The previous service provider reports stated that respondents were cooperative, but the home conditions never changed,
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with reports of cat and dog feces throughout the home. Klein did not feel that respondents had made any substantialprogress on improving the conditions of the home. She testified that the condition of the home had not changed overthe course of the year, and that the last 30 days of improvement was not enough to reconsider termination. Klein notedthat conditions in the home had improved just before JF was returned home in 2014, but then “went right back to theway they were before.” She testified that the agency could provide no services that had not already been provided, andrecommended termination of respondents' parental rights.
*3 Matthew Lorence, the foster care monitor in this case until September 2015, testified in part as follows:
There are—since 1991 have they been involved with the Agency and a repetitive stance throughall the CPS investigations is the same conditions of the home.... These conditions, based on whatwe have is a very medically fragile child, the home conditions have a direct bearing to her overallhealth. With the stage three kidney disease, the medical treatment provided by U of M is there to—they're trying to sustain it as long as possible for her, and to prevent it from occurring to the nextstage, which would then require surgery and possible transplant. They're trying to preserve whatshe has left at this time. Another thing is that from the previous foster care case with [JF] to wherewe are now, the conditions, the allegations are the same. Again, it falls back to the home condition,medical appointments not being maintained. These are not something that can be missed. Withthese appointments, you're talking specialized medical health services and they are required for[JF's] care and well-being, and if these appointments are not followed through with or maintainedon the basis of the doctors and of their recommendations, I mean, it does have an overall directbearing and that's why we're here today.
Lorence agreed with the DHHS recommendation to file a termination petition.
Respondent-father testified that he and respondent-mother were capable of taking care of JF's needs and that “at thismoment, the house is clean enough.” He said that JF was older and better at monitoring her medical needs. Respondent-father did not feel that it was his responsibility to clean the bathroom, but he would make sure the bathroom stayed clean.
The LGAL stated that he visited the home the previous day and the house and bedroom were sufficient. He said thebathroom was “minimal” and possibly was “just an older bathroom.”
The trial court authorized the filing of a petition to terminate respondents' parental rights. The court informed the partiesthat “I suspect I'm going to want to see the house.” During a later status conference, the trial court reaffirmed that itwanted to see the home “because that's a crucial issue in this case.” In February 2017, the court, along with respondents'attorneys, petitioner's attorney, the LGAL, and a caseworker, visited the home.
In November 2016, the DHHS filed a supplemental petition for termination of parental rights, and the terminationhearing commenced on May 10, 2017. At the hearing, Tim Strauss, a limited license psychologist, testified that heperformed a parental fitness evaluation on each respondent in April 2016. Strauss found it noteworthy that eachrespondent “had a significant odor that filled the examination room” because people who come in for parental fitnessevaluations usually “try to put their best foot forward ... to present themselves in the most favorable light they can.”Strauss stated that “when both of these parents came in with the body odor, especially when they knew the concerns wereabout health and physical neglect, it raises the question about—if they can't take care of their own health or cleanliness, itraises the question of if they can do it for their children.” Strauss recommended that both parents work with Families Firstand participate in conjoint counseling. Strauss's concern was that both parents' health and mood concerns would causethem to become fatigued and to anticipate that the other parent would take care of things, and in conjoint counselingthe parents could come up with a specific list of parenting duties and develop a schedule and rhythm of routine.
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*4 Christina Pudvan, the foster care worker during the 2013–2014 case, outlined the extensive services that wereprovided at the time the 2013 case was closed. Pudvan testified that the parents received services through the FamilyFirst Support Program, NFIS, and intensive counseling services. Pudvan stated that she visited the family home in 2013and found the condition of the home to be the worst she ever saw during her career, with dirt and debris on the floorand an odor throughout the home. During the time the 2013 case was open, JF's medical needs were an ongoing concernthat had to be addressed constantly. After JF returned home in August 2014, CPS received complaints in Septemberand October 2014 because of “hygiene and cleanliness, the medical concerns.” Pudvan had meetings at the school aboutcleanliness and JF smelling of urine. When the case closed in November 2014, issues continued to exist with hygiene andcleanliness, but the parents were meeting JF's needs as far as attending her medical appointments by then.
Klein testified that she prepared a parent-agency treatment plan that recommended parenting classes and psychologicalevaluations for respondents. Klein testified that respondents were initially reluctant to participate in services and, as ofJune 7, 2016, had not made an appointment to begin counseling. Respondents began counseling in July 2016, but theirattendance was sporadic. According to Klein, the parents “did not feel they needed that service or that it was going tohelp them,” and “[t]hey had stated that the condition of their home was not going to change and that they did not feelthey were going to live up to our expectations.”
Klein testified that she was in the home on a monthly basis and the condition of the home varied. Klein reiterated herearlier testimony about the cluttered condition of respondents' home, the unsanitary condition of the bathroom, and thesmell of urine in the home. According to Klein, the home always had an odor of cat urine, but the condition of the homeimproved “toward the end.” However, Klein noted that during a visit in December 2016, the condition of the bathroomwas “horrible.” According to Klein, “[t]here was dried feces, urine all on the floor, around the toilet, on the back ofthe toilet seat, and [she] told [respondent-father] that was just unacceptable,” and he “said that he did not go in thatbathroom very often and he was disgusted with that as well.” Klein did not know of any other services that could beprovided that had not already been provided.
Respondent-father testified that DHHS was involved in this case because they received complaints that JF smelled ofurine, and that she would likely always have a urine odor about her based on the research he performed on WebMD.However, respondent-father acknowledged that JF did not have a urine or body odor during his visitation with herwhile she was living with a foster family. He testified that JF has a strong emotional bond with the family. Accordingto respondent-father, the family lived in a single-wide mobile home. He stated that “[w]e're not the perfect family” andthat it was “hard to keep a lot of things clean and uncluttered due to five people being in the home.” Respondent-fathertestified that it was difficult for JF to maneuver the wheelchair in the home and her solution was to get out of the chairand crawl through the house. He testified that he understood the importance of keeping the floor clean because of JF'scrawling and that “lately it's been a good cleaning once a week.” He said that his son had purchased a “very good vacuumcleaner.” Respondent-father acknowledged that JF's bathroom “has been unsanitary” at times, but stated that he wouldclean the bathroom every day if JF was in the home. Respondent-father's counsel asked respondent-father if he wantedthe trial court to interview JF before making a determination on termination, and respondent-father replied, “I wouldask that, yes.”
At the conclusion of testimony, the trial court noted that it was inclined to speak with JF and asked if either party had anobjection or opposition. Petitioner's counsel stated that she did not “necessarily have a problem with it,” and respondent-father's counsel stated, “I would actually request it ... in this particular case because there is such a strong bond withthe family, and that bond, part of it is because of [JF's] needs through her entire life.” Respondent-mother's counselresponded, “We don't object,” and “[w]e encourage the court to talk with [JF].” The LGAL responded, “I have noobjection, your Honor, and I would just add for the record having interviewed her [a] number of times, she is competentto do so, even though she is 13 or 14 years old.” The court indicated that it would interview JF on July 5 before closingarguments, and it did so.
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*5 After closing arguments, the trial court indicated that it would issue a written opinion. The trial court eventuallyissued a written opinion and order terminating respondents' parental rights under MCL 712A.19b3(c)(i ) and (g).
On appeal, respondents first argue that the plea proceeding in which the trial court assumed jurisdiction was defectiveand violated their due process rights. However, respondents waited until the conclusion of the termination hearing tochallenge the propriety of the trial court's jurisdiction. Absent certain exceptions, a trial court's exercise of jurisdiction
over a child must be challenged in a direct appeal from the initial dispositional order. See MCR 3.993(A)(1). 2 The court'sjurisdictional decision cannot be collaterally attacked when “termination occurs following the filing of a supplementalpetition for termination after the issuance of the initial dispositional order.” In re SLH, 277 Mich. App. 662, 668; 747N.W.2d 547 (2008); see also In re Hatcher, 443 Mich. 426; 505 N.W.2d 834 (1993). Exceptions have been recognizedwhen a trial court exercises jurisdiction under the “one-parent doctrine,” In re Kanjia, 308 Mich. App. 660, 669; 866N.W.2d 862 (2014), and when the trial court fails to both timely appoint counsel and “to advise the respondent that hisplea could later be used in a proceeding to terminate his parental rights,” In re Mitchell, 485 Mich. 922; 773 N.W.2d 663(2009). These exceptions do not apply in the instant case. Respondents received an adjudication and were representedby counsel, and they could have filed a direct appeal. Because respondents cannot collaterally attack the trial court'sexercise of jurisdiction in the instant appeal, appellate review of this claim of error is foreclosed.
Next, respondents argue that the trial court erred by personally visiting and viewing their home. Respondents failed topreserve this error, so our review is limited to whether the error affected substantial rights. In re Utrera, 281 Mich. App.1, 8; 761 N.W.2d 253, 260 (2008). “Generally, an error affects substantial rights if it caused prejudice, i.e., it affectedthe outcome of the proceedings.” Id. at 9. While we agree that the trial court erred by personally visiting and viewingrespondents' home, we conclude that reversal is not warranted because respondents have not demonstrated that the erroraffected their substantial rights.
*6 Given the varying descriptions of respondents' home, the trial court informed the parties that “I suspect I'm goingto want to see the house.” The court stated that “[i]t's not going to be an unannounced situation.” The court stated:
Ms. Klein, I would want you there, so come testimony time you would be able to say this is how thehouse looked on that day as compared to other days when you've been there. You wouldn't be ableto say anything right when I would be there, and obviously the parents would be there as well, andbut that will happen once we get a termination date scheduled and a petition filed.... The attorneyswould be invited for that, but I would like to see it. That would help me in this case.
During two later hearings, the court repeated that it intended to visit the home. During the December 6 status conference,the court stated:
What I wanted to do was see the premises. I think I remember [the LGAL's] report, but so I want to set up a time toview it. That would be a time when just—since it's part of the trial, things can't be explained to me at that time thatthis is so-and-so's room or this is so-and-so's room. When you get back in court, that can happen then. You can say,you know, “When you saw this room, which was off to the left, that's where things are.”
During the January 10, 2017 status conference, the court stated that “I want to see it so I can—because that's a crucialissue in this, and just remember the ground rules.” The trial court, along with respondents' attorneys, petitioner'sattorney, the LGAL, and a caseworker, visited the home in February 2017.
In the court's opinion and order, with respect to the statutory grounds for termination, the court summarized thewitnesses' testimony at the termination hearing and made no mention of its observations during its visit to respondents'home. The court found that termination of parental rights was warranted under MCL 712A.19b(3)(c)(i ) because, in part,
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The conditions that led to the adjudication, lack of medical care for [JF], very unhygienic householdcircumstances, and a lack of or inability to create hygienic conditions for [JF] still exist. Given thelong history, there is no reasonable likelihood that they will be rectified any time soon.
The court also found that termination of parental rights was warranted under MCL 712A.19b(3)(g) because respondents,without regard to intent, “failed to provide proper care or custody for [JF] for the reasons outlined [with respect to §19b(3)(c)(i ) ], and there is no reasonable expectation that this will be corrected.” The court then found that it was in JF'sbest interests to terminate respondents' parental rights, stating in pertinent part:
Moreover, the home environment of the parents has never been particularly clean. The manyprofessionals unanimously agreed that the house was unhygienic and was probably not going toimprove. It is not as atrociously bad as it was, but even when the court viewed the situation, it is notwhere a person with Spinal [sic] Bifida will thrive. [JF] chooses to crawl for locomotion when she isin the home and the home will never be clean enough for her to avoid infections. [Emphasis added.]
Petitioner does not appear to dispute respondents' argument that the trial court did not have authority to conduct ahome visit to view the condition of respondents' home. Even if it did, such argument would be meritless. MCR 3.901(A)(1) sets forth the court rules that are applicable to child protective proceedings. The rule pertaining to the court's view of“property or a place where a material event occurred,” MCR 2.507(D), is not among the rules specifically incorporated
into juvenile or child protective proceedings. 3 Moreover, MCR 3.901(A)(2) declares that “[o]ther Michigan Court Rulesapply to juvenile cases in the family division of the circuit court only when this subchapter specifically provides.” Inaddition, MCR 3.923(A) provides that if the court believes that the evidence has not been fully developed, the courtmay (1) examine a witness, (2) call a witness, or (3) adjourn the matter before the court, and (a) cause service of processon additional witnesses, or (b) order production of other evidence. The rule does not recognize a court's authority topersonally view or visit a particular place or property. In sum, there is no statutory provision, court rule, or caselaw thatpermits a trial court in a juvenile proceeding to view a child's home.
*7 Respondents argue that this error affected their substantial rights because the court relied on its observations whendetermining that it was in JF's best interests to terminate respondents' parental rights. They contend that because thecourt did not create a record of its findings, they did not know which findings were important to rebut and had nomeaningful way to challenge the court's conclusion that the home “is not where a person with Spinal [sic] Bifida willthrive.” They also contend that this Court's review is limited by the trial court's failure to create a record of its findings.
However, we recognize that the trial court could have ordered the parties to introduce photographic evidence ofrespondents' home to show the condition of the home, MCR 3.923(A)(3)(b), but instead viewed the home in-person withthe caveat that the parties could not talk to the court during the visit or explain anything that the court was observing.Because respondents and their counsel were present during the viewing and aware of what the court was observing, andbecause the trial court allowed the parties to provide explanations to the court through testimony on the record afterthe viewing, the court's viewing of respondents' home did not violate respondents' due process rights. Further, given thetrial court's reliance on the testimony of witnesses who described both the historical condition of the home, the servicesprovided, and the current condition of the home, as well as the effect of the condition of the home on JF's medicalcondition, it does not appear that the trial court's visit to the home affected the outcome of the proceedings. The courtfound that “the many professionals unanimously agreed that the house was unhygienic and was probably not going toimprove” even though the condition of the home was “not as atrociously bad as it was.” The trial court's lone referenceto the court's viewing of the home was that
it is not where a person with Spinal [sic] Bifida will thrive. [JF] chooses to crawl for locomotionwhen she is in the home and the home will never be clean enough for her to avoid infections.
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This finding is amply supported by the testimony of the witnesses with respect to the condition of the home and its effecton JF's medical condition, and the trial court's statement regarding its view of the home reflects that the court's viewingof the home confirmed the witnesses' testimony. Under these circumstances, respondents have failed to demonstrate thatthe trial court's error in visiting the home affected their substantial rights.
Respondents next challenge the trial court's interview of JF. Respondents cite to In re HRC, 286 Mich. App. 444, 453;781 N.W.2d 105 (2009), in which this Court concluded that “a trial court presiding over a juvenile proceeding has noauthority to conduct in camera interviews of the children involved” and that it was plain error for the trial court todo so. However, both respondents consented to the interview; respondent-father's counsel stated, “I would actuallyrequest it,” and respondent-mother's counsel stated, “We encourage the court to talk with [JF].” A “[r]espondent maynot assign as error on appeal something that she deemed proper in the lower court because allowing her to do so wouldpermit respondent to harbor error as an appellate parachute.” In re Hudson, 294 Mich. App. 261, 264; 817 N.W.2d115 (2011). Because the trial court solicited input from the parties before conducting the in camera interview and bothparties affirmatively urged the trial court to conduct the interview, respondents waived their challenge to the court's incamera interview of JF. Respondents' waiver extinguished any error. People v. Carter, 462 Mich. 206, 215; 612 N.W.2d144 (2000).
*8 Respondents next challenge the trial court's determination that petitioner established statutory grounds fortermination. “To terminate parental rights, a trial court must find by clear and convincing evidence that at least onestatutory ground under MCL 712A.19b(3) has been established.” In re Moss, 301 Mich. App. 76, 80; 836 N.W.2d 182(2013). This Court reviews for clear error the trial court's determination that clear and convincing evidence supports astatutory ground for termination. In re Williams, 286 Mich. App. 253, 271; 779 N.W.2d 286 (2009). “A finding of factis clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, givingdue regard to the trial court's special opportunity to observe the witnesses.” In re BZ, 264 Mich. App. 286, 296–297;690 N.W.2d 505 (2004).
The trial court terminated respondents' parental rights pursuant to MCL 712A.19b(3)(c)(i ) and (g), which authorize acourt to terminate parental rights if it finds by clear and convincing evidence that:
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since theissuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i ) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditionswill be rectified within a reasonable time considering the child's age.
* * *
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonableexpectation that the parent will be able to provide proper care and custody within a reasonable time considering thechild's age.
Termination is appropriate under subsection (c)(i ) when the conditions that brought the child into foster care continueto exist “despite time to make changes and the opportunity to take advantage of a variety of services.” In re White,303 Mich. App. 701, 710; 846 N.W.2d 61 (2014) (quotation marks and citation omitted). The statutory ground fortermination under subsection (g) may be established by a parent's failure to participate in and benefit from services,which is evidence that the parent will not be able to provide the child with proper care and custody. Id. Additionally, “[a]lack of cooperation with reunification services, or other court-ordered conditions, can bear on a termination decision,if that lack of cooperation relates to issues of abuse or neglect.” In re LaFrance, 306 Mich. App. 713, 729; 858 N.W.2d143 (2014).
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Respondents argue that the trial court clearly erred in finding that a statutory ground for termination had beenestablished because the testimony showed that they had made progress in maintaining the cleanliness of their home and
improved the attention they showed to JF's medical care and needs. 4
*9 The trial court made the following findings of fact and conclusions of law with respect to MCL 712A.19b(3)(c)(i ):
The initial dispositional order in this matter took place January 12, 2016, so 182 or more days haveelapsed since that time. The conditions that led to the adjudication, lack of medical care for [JF],very unhygienic household circumstance[s], and a lack of or inability to create hygienic conditionsfor [JF] still exist. Given the long history, there is no reasonable likelihood that they will be rectifiedany time soon.
With respect to MCL 712A.19b(3)(g), the court made the following finds of fact and conclusions of law:
A second provision under which termination is sought is MCL712A.19b3(g) [sic], which providesfor termination if the parent without regard to intent fails to provide proper care or custody forthe child and there is no reasonable expectation that it will be provided. This is similar to the firstprovision. [Respondents] have failed to provide proper care or custody for [JF] for the reasonsoutlined above, and there is no reasonable expectation that this will be corrected.
Because the trial court found it appropriate to terminate respondents' parental rights under both MCL 712A.19b(3)(c)(i) and (g) on the basis of medical neglect and the unhygienic household conditions, we address these provisions together.
In challenging the trial court's findings under these provisions, respondents' argument first focuses on the trial court'sconclusion that they would not be able to provide a hygienic environment in light of JF's medical condition. They contendthat they cleaned and maintained the home and that the trial court's finding was therefore unsupported in the record. Inthis case, 20 months had elapsed since JF's removal from the home, and the overwhelming evidence established that themain area of the home was cluttered and dirty and that JF's bedroom and bathroom had clutter, was dirty, was litteredwith feces on the floor, and smelled of cat and human urine. The condition of the main areas of the home varied duringthe caseworker's monthly visits, but the conditions had changed only minimally by the time of the termination hearing.It was not until petitioner requested a permanency planning hearing that respondents first cleaned JF's bedroom, and yetduring an unannounced visit in December 2016, the condition of JF's bathroom was “horrible.” According to a familysupport worker who was in the home weekly, respondents made progress in “picking up” the main area of the home, butJF's room was filled with clothing on the floor and smelled strongly of urine, and the bathroom was very dirty with soapscum, and urine and feces on the floor and toilet. The worker informed respondents of the necessity of having a hygienicbathroom for JF to use because of her medical condition and that the unsanitary conditions in the home would preventreunification with JF, but on the last day of services in the home, the bathroom and bedroom “did not look like anythinghad been done.” The unsanitary condition of respondents' home was an ongoing issue, which had previously promptedCPS's involvement and JF's removal from the home in the 2013 case. Yet despite exhausting all available services, theproblem persisted, and respondents remained unable to provide proper care and custody for JF given her substantialmedical needs. This Court has repeatedly recognized that it is not enough to participate in services; a parent must alsobenefit from the services provided in order to address the problems leading to the adjudication. In re Frey, 297 Mich.App. 242, 248; 824 N.W.2d 569 (2012). We conclude that the trial court did not clearly err by finding that statutory
grounds for termination under MCL 712A.19b(3)(c)(i ) and (g) were established by clear and convincing evidence. 5
*10 Lastly, respondents challenge whether termination of their parental rights was in JF's best interests. A trial courtmust order termination of a respondent's parental rights if the court finds by a preponderance of the evidence based onthe entire record that termination is in the child's best interests. In re White, 303 Mich. App. at 713. This Court reviewsthe trial court's determination of a child's best interests for clear error. Id.
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A trial court must weigh all of the evidence in making a best-interest determination. Id, The court may consider manyfactors, including “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,” as well as “a parent's history of domesticviolence, the parent's compliance with his or her case service plan, the parent's visitation history with the child, thechildren's well-being while in care, and the possibility of adoption.” Id. at 713–714 (quotation marks and citationomitted).
The trial court found that termination of respondents' parental rights was in JF's best interests because of the risks to JF'shealth associated with the unhygienic condition of the home and respondents' inability to provide the care and attentionthat JF's medical condition required. Specifically, after noting that the family was intact and appeared to be close, thecourt found in pertinent part as follows:
[JF's] sister has indicated she will assist with the hygienic procedures necessary, and her father, whois disabled but reasonably healthy, has said he will do whatever it takes. However, throughout thiscase, even from its inception, this has continued to be a problem. It gets marginally better, but thengets worse. [JF] is becoming a young lady. While she is able to do more self-care, one of her father'sremarks was telling. He indicated that [JF] would always have an odor. That does not appear tobe the case in her foster home, where [JF] has bonded strongly. Moreover, the home environmentof the parents has never been particularly clean. The many professionals unanimously agreed thatthe house was unhygienic and was probably not going to improve. It is not as atrociously bad as itwas, but even when the court viewed the situation, it is not where a person with Spinal [sic] Bifidawill thrive. [JF] chooses to crawl for locomotion when she is in the home and the home will neverbe clean enough for her to avoid infections. [JF] needs attention all the time and her family doesnot seem to be able to provide it. Moreover, she has a strong bond where she currently is.
The evidence demonstrates that JF was bonded to respondents and her siblings. Respondents were partially incompliance with their treatment plans but, despite being provided with numerous services, did not demonstrate anability to maintain a hygienic condition in their home and to properly care for JF irrespective of their compliancewith the treatment plan. There is no dispute that JF requires a sanitary and hygienic area in which to catheterize andperform bowel flushes, yet the overwhelming testimony demonstrated that the conditions of JF's bathroom remained“deplorable.” The past CPS involvement with respondents reveals that the unhygienic condition of the home has beenan issue for nearly 25 years and that respondents failed to benefit from services to address this condition when JF wasremoved from the home in 2013. JF returned to the home in August 2014, and by September 2014 petitioner was againreceiving complaints about JF's hygiene. The previous case was closed in November 2014, and respondents thereafterfailed to regularly refill JF's medication and failed to take her to necessary medical appointments. The home conditionsdid not improve. By October 2015, JF was again removed from the home for the same unhygienic living conditions andmedical neglect. In addition, while in foster care, JF did not smell of urine, her medical needs and appointments wereattended, and she was bonded with her foster parent. In light of these factors, the trial court did not clearly err when itconcluded that termination of respondents' parental rights was in JF's best interests.
*11 Affirmed.
All Citations
Not Reported in N.W. Rptr., 2018 WL 2165548
Footnotes
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1 According to a nurse practitioner that testified during a later hearing, JF had lab work performed after the she was removedfrom respondents' home that revealed that she had a UTI caused by two organisms that typically inhibit the mouths of catsand dogs.
2 As relevant to this case, MCR 3.993(A)(1) provides that “an order of disposition placing a minor under the supervision ofthe court or removing the minor from the home” is appealable as of right. Respondents argue that JF was removed from thehome following the initial inquiry and, citing In re McCarrick/Lamoreaux, 307 Mich. App. 436, 458; 861 N.W.2d 303 (2014),they argue that they did not have an appeal as of right from that order. They contend, therefore, that this appeal is their firstappeal as of right. Respondents correctly note that a parent may only appeal as of right an order of disposition, not merely anorder removing a child from the home. Id. at 445. Thus, respondents did not have an appeal as of right from the order takingJF into protective custody. However, they did have an appeal as of right from the initial dispositional order, MCR 3.993(A)(1), which was eventually entered after JF's removal.
3 Whether this rule would allow a trial court to view a place for the purpose of resolving a disputed question of fact need notbe considered in the context of this case.
4 In arguing that the trial court erred in finding a statutory basis for termination, respondents challenge the trial court'sfinding that “many professionals unanimously agreed that [respondents] house was unhygienic and was probably not goingto improve.” However, this finding was made in the context of the court's best-interest determination, not in the context ofthe court's findings regarding the statutory grounds for termination. Additionally, respondents' contention that the trial courtrelied on testimony from caseworkers who had not viewed respondents' home in years, and that the court ignored testimonyregarding the condition of the home at a point in time nearer the termination hearing, is misplaced. Rather, the trial courtin its written opinion began by summarizing the testimony of each of the witnesses that testified at the termination hearing,and then made its findings of fact and conclusions of law.
5 Respondents assert that they made progress with respect to JF's medical needs. At the time JF was removed from the home,she had not been regularly attending her necessary medical appointments and her prescription medications had not been filled.She also suffered from a UTI that was caused by bacteria typically found in the mouths of cats and dogs. Although respondentsattended JF's medical appointments during the time that JF was in foster care in this case, those appointments were scheduledby the foster parent and JF was transported to the appointments by the foster parent. Under these circumstances, we continueto conclude that the trial court did not clearly err by finding that clear and convincing evidence supported termination ofrespondents' parental rights under MCL 712A.19b(3)(c)(i ), and (g).
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In re Alejandro, Not Reported in N.W.2d (2014)
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2014 WL 2159520Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
UNPUBLISHEDCourt of Appeals of Michigan.
In the Matter of ALEJANDRO/Edwards–Gafford/Becker/Mesa–Rodriguez, Minors.
Docket Nos. 317740, 318250.|
May 22, 2014.
Wayne Circuit Court, Family Division; LC No. 12–510790–NA.
Before: JANSEN, P.J., and OWENS and SHAPIRO, JJ.
Opinion
PER CURIAM.
*1 In this child protection proceeding, respondent-mother attempts to appeal the trial court's order of adjudicationexercising jurisdiction over her four children under MCL 712A.2(b) and appeals as of right the initial order of
disposition. 1 We affirm.
Respondent-mother first argues that the trial court erred by exercising jurisdiction over her four children based on afinding that she medically neglected an epileptic condition of her son, JDB. We disagree.
To exercise jurisdiction over the children, the trial court was required to find that a statutory basis for jurisdiction existsunder MCL 712A.2(b) by a preponderance of the evidence. In re BZ, 264 Mich.App 286, 295; 690 NW2d 505 (2004).“We review the trial court's decision to exercise jurisdiction for clear error in light of the court's findings of fact[.]” Id. at295 (citation omitted). A finding is clearly erroneous when a reviewing court is left with a definite and firm convictionthat a mistake was made. In re JK, 468 Mich. 202, 209–210; 661 NW2d 216 (2003). Additionally, deference is given tothe trial court's special opportunity to judge the weight of the evidence and the credibility of the witnesses who appearbefore it. See In re Miller, 433 Mich. 331, 337; 445 NW2d 161 (1989).
The Department of Human Services (DHS) requested that the trial court exercise jurisdiction over the children under
MCL 712A.2(b)(1) and (2). 2 Subsection (b)(1) provides, in relevant part, that a court has jurisdiction in proceedingsconcerning a juvenile under 18 years of age “[w]hose parent or other person legally responsible for the care andmaintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education,medical, surgical, or other care necessary for his or her health or morals....” In this case, the testimony and medicalrecords of Dr. Huq, who was involved in JDB's medical care before he was removed from respondent-mother's home,supports the trial court's determination that medication was necessary to treat and control JDB's epileptic condition.
In addition, giving deference to the trial court's superior opportunity to determine the weight and credibility of theevidence, we find no clear error in the trial court's finding that there was no reasonable basis for respondent-mother todiscontinue the child's medication. Respondent-mother's reliance on Dr. Park's recommendations is misplaced becausethe record discloses that Dr. Park did not become involved in JDB's medical care until after he was removed fromrespondent-mother's home and placed with paternal relatives in December 2012. Moreover, as the trial court indicated,
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that doctor later reversed himself and agreed that that the child required medication. Accordingly, that doctor's viewsregarding medication could not have formed the basis for respondent-mother's earlier decision to discontinue the child'smedication. Respondent-mother's own testimony also contains contradictions regarding why she decided to wean thechild off medication. Although she attributed her decision to another doctor's alleged advice in June 2010 that the childcould be weaned off his medication in two years because he would outgrow his seizures, respondent-mother testified thatshe began weaning the child off his medication before the two-year period expired and admitted that the child's seizureswere getting worse. Therefore, the trial court did not clearly err in finding no reasonable basis for respondent-mother'sdecision to discontinue the child's medication.
*2 Relying on In re Rosebush, 195 Mich.App 675, 683; 491 NW2d 633 (1992), respondent-mother asserts that she wasentitled to speak for her minor child with respect to matters of medical treatment. However, child protection proceedingsare intended to protect the child, In re Brock, 442 Mich. 101, 107–108; 499 NW2d 752 (1993), and “a state is notwithout constitutional control over parental discretion in dealing with children when their physical or mental healthis jeopardized.” Parham v. JR, 442 U.S. 584, 603; 99 S Ct 2493; 61 L.Ed.2d 101 (1979). Accordingly, the trial court'sfindings support a determination that respondent-mother, when able to do so, neglected to provide medical care thatwas necessary for her child's health. MCL 712A.2(b)(1). And because “[a] child may come within the jurisdiction ofthe court solely on the basis of a parent's treatment of another child,” the trial court did not clearly err in exercisingjurisdiction over all four children. In re Gazella, 264 Mich.App 668, 680; 692 NW2d 708 (2005), superseded by statuteon other grounds as stated in In re Hansen, 285 Mich.App 158, 163; 774 NW2d 698 (2009), vacated on other grounds
486 Mich. 1037 (2010). 3
Respondent-mother also argues that there was no reason to remove the children from her home and to require supervisedparenting time. We disagree.
The purpose of the dispositional hearing is to “determine what measures the court will take with respect to a childproperly within its jurisdiction and, when applicable, against any adult, once the court has determined following a trial ...that one or more of the statutory grounds alleged in the petition are true.” MCR 3.973(A). This Court has noted that anyconditions imposed for a respondent's parenting time following adjudication are left to the trial court's sound discretion,but they are to be decided in light of the children's best interests. In re Laster, ––– Mich.App ––––; ––– NW2d ––––(Docket Nos. 315028 and 315521, issued December 26, 2013), slip op at 3.
Although the trial court exercised jurisdiction on the basis of respondent-mother's medical neglect, it was also presentedwith other circumstances regarding the children and their parents, including evidence that respondent-mother had asubstance-abuse history and was residing in a substance-abuse rehabilitation facility at the time of the dispositionalhearing. Respondent-mother has not established any basis for disturbing the trial court's decision to continue the childrenin relative placement, with supervised parenting time for respondent-mother. Considering that the trial court did notyet have information regarding respondent-mother's substance abuse treatment and that it had ordered a psychologicaland psychiatric evaluation of respondent-mother, it would have been premature for the court to order unsupervisedparenting time before receiving this additional information. Accordingly, the trial court did not err in imposing thedispositional conditions.
*3 Affirmed.
SHAPIRO, J., (dissenting).*3 I respectfully dissent and would reverse the trial court's exercise of jurisdiction as to three of respondent-mother's
four children as clearly erroneous. 1 In addition, while I do not conclude that the trial court's exercise of jurisdictionover JB, the youngest child, was clear error, the court erred by removing JB and the other children from the home, while
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denying respondent-mother unsupervised visitation, at the preliminary hearing 2 and abused its discretion by continuing
the removal and lack of unsupervised visitation after taking jurisdiction. 3
The petition was brought on December 3, 2012, when the DHS was informed that respondent-mother was not givingher son, JB, the anti-seizure medication recommended by one of his pediatric neurologists. At the initial hearing, theDHS offered no evidence sufficient to justify removal of any of the three other children on the basis of abuse, neglect,
or any other statutory grounds. 4 Nevertheless, the court authorized the petition as to all four children and placed themin foster care. The court ordered only supervised visitation for their mother despite her counsel's objection:
Your honor, we're asking for unsupervised visitation at—it makes no sense to me why the other children are removedfrom the home. I don't think JB should be removed from the home and especially the other children. As stated thecourt said it would accept the testimony [that the psychologist] would say ... that mom is a good mom, has goodparenting skills. So we're asking that the child—that there be unsupervised visitation and that the children actuallybe returned to mom.
Review hearings occurred regularly for months and virtually every hearing was conducted by a different judge or
magistrate. 5 At each hearing, respondent-mother requested that the children be returned to her or that she at least bepermitted unsupervised visitation. At each hearing, the request was denied without sufficient explanation.
When the preliminary hearing continued on December 17, 2012, Miya Hall, the DHS worker assigned to respondent-mother's case, testified that the medical neglect allegation did not pertain to any children other than JB. She stated thatthe allegation was that respondent-mother failed to give JB medication as prescribed and failed to take him to requireddoctor's appointments. When asked, “how are [the other children] at risk?” she responded that, because respondent-mother was not meeting JB's medical needs, “she may not meet the medical needs of the other children.” However, nosuch medical needs of the other children were identified. Hall also admitted to being unaware that respondent-motherhad completed parenting classes and vocational training. The parties stipulated that the psychologist who treated therespondent-mother for 12 weeks earlier in 2012, at the request of the DHS, would testify that respondent “is a momthat's actively involved in her children's life [sic], providing a quality of life for her children” and “would contradict, insome regard or manner, what [Ms. Hall] had testified to.”
*4 At a hearing held January 2, 2013, the court continued to allow supervised visitation only and declined respondent-mother's counsel's request to have prompt access to JB's medical records, despite the fact that the DHS's allegationspecifically concerned medical neglect. By the next hearing, held just over two months later on March 5, 2013, counselfor the DHS had still not provided JB's medical records to respondent-mother or her attorney. The court noted thatrespondent's drug screens were negative, but again refused to allow unsupervised visitation of any of the children.
The bench trial on jurisdiction finally took place on June 4 and July 19, 2013, six months after the removal of allfour children from respondent-mother. At trial, the DHS finally offered evidence of the allegations of medical neglect.The evidence did demonstrate that respondent ceased giving JB prescribed medication for his diagnosis of nighttime(during sleep) benign rolandic epilepsy against the order of a pediatric neurologist. However, the medical records alsodemonstrated that a different pediatric neurologist in the same clinic as the prescribing physician, as well as an emergencyroom physician at the same hospital, viewed the medication as a treatment option, rather than a requirement, so long asthe seizures only occurred during sleep. For example, the other pediatric neurologist authored a treatment note statingthat resumption of medication need only be considered “if seizures occur in daytime.” The only evidence of neglect or
abuse at the trial concerned JB's medication. 6
The majority concludes that the other three children were properly removed under the doctrine of “anticipatory neglect.”However, this cannot serve to remove children and deny visitation in the absence of evidence that neglect could actually
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be anticipated. If a second child required medication for a serious condition, I would agree that the court could find
anticipatory neglect as to that child. However, that is not the case here. 7 Moreover, it is difficult to understand the basisto remove the children, including JB, from the home when the court could simply have ordered that respondent complywith physician orders to administer medication. Finally, no basis to deny unsupervised visitation was ever articulated,let alone demonstrated.
The majority justifies the trial court's removal of the children and its refusal to allow unsupervised visitation on thegrounds that, at the time of an August 2013 dispositional hearing, respondent was residing at a “substance abuserehabilitation facility.” However, there is no evidence that she had been abusing drugs at any time since the children'sremoval. The only evidence presented was that respondent's residence, as of that hearing, provided regular on-site drug
testing in which respondent was participating, pursuant to the court's earlier orders. 8 This was certainly not the basisfor the court's exercise of jurisdiction over the children and the record does not suggest that respondent was living inthat facility at the time of the jurisdictional hearings.
*5 This is essentially a case where four children were removed from their mother because she did not give one of thechildren anti-seizure medication, even when the evidence of the need for the medication was mixed. The mother was,and apparently still is, denied unsupervised visitation. I would reverse the order of jurisdiction as to all the childrenother than JB and, as to JB, remand for the court to impose conditions necessary to assure that respondent-mother docomplies with necessary medication orders.
Accordingly, I respectfully dissent.
All Citations
Not Reported in N.W.2d, 2014 WL 2159520
Footnotes1 Respondent-mother erroneously filed a claim of appeal in Docket No. 317740 from the July 19, 2013 order of adjudication.
An order of adjudication may only be appealed by leave granted pursuant to MCR 3.993(B). In re SLH, AJH, & VAH, 277Mich.App 662, 669 n 13; 747 NW2d 547 (2008). The initial order of disposition is the first order appealable as of right underMCR 3.993(A)(1). Therefore, this Court's jurisdiction in this appeal is based on respondent-mother's claim of appeal fromthe initial order of disposition in Docket No. 318250.
2 Although the trial court's order of adjudication also refers to MCL 712A.2(b)(4), it is apparent that this subsection does notapply to this case. Because only one of the grounds in MCL 712A.2(b) is needed for the trial court to exercise jurisdiction, andthe record supports the trial court's exercise of jurisdiction under MCL 712A.2(b)(1), the erroneous reference to subsection(4) is harmless. See MCR 3.902(A) (stating that the harmless error rule applies to child protection proceedings).
3 Because we find that the trial court properly exercised jurisdiction over the children pursuant to MCL 712A.2(b)(1), we neednot address the additional ground, MCL 712A.2(b)(2).
1 “We review the trial court's decision to exercise jurisdiction [over children in child protective proceedings] for clear error inlight of the court's findings of fact.” In re BZ, 264 Mich.App 286, 295; 690 NW2d 505 (2004).
2 The statutory requirements for removing a child from his parent's care is provided by MCL 712A.13a(9) and MCR 3.963(B).We review de novo issues implicating statutory requirements and court rules. See Reed v. Yackell, 473 Mich. 520, 528–529;703 NW2d 1 (2005).
3 A trial court's decisions regarding parenting time after an adjudication are “left to the sound discretion of the trial court[.]”In re Lester, 303 Mich.App 485, 490; ––– NW2d –––– (2013).
4 “To properly exercise jurisdiction, the trial court must find that a statutory basis for jurisdiction exists.” BZ, 264 Mich.Appat 295.
5 It appears that at least five different judges or magistrates conducted hearings in this case.
6 “Jurisdiction must be established by a preponderance of the evidence.” BZ, 264 Mich.App at 295.
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7 Compare In re Dittrick Infant, 80 Mich.App 219, 221; 263 NW2d 37 (1977) (jurisdiction over newborn was proper whereparental rights to older child had been terminated due to “continuing physical and sexual abuse”).
8 The court-appointed psychologist's report of August 19, 2013 does not conclude that respondent was using drugs at that time.
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In re Guido–Seger, Not Reported in N.W.2d (2017)
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment
Declined to Extend by In re Taylor-Lee/Redmond/Redmond-Houser, Mich.App., April 12, 2018
2017 WL 510501Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
UNPUBLISHEDCourt of Appeals of Michigan.
In re J. J. Guido–Seger, Minor.
No. 333529|
February 7, 2017
Livingston Circuit Court, Family Division, LC No. 2015–014958–NA
Before: M.J. Kelly, P.J., and Stephens and O'Brien, JJ.
Opinion
Per Curiam.
*1 Respondent appeals by right the termination of her parental rights to her son under MCL 712A.19b(3)(c)(i )(conditions that led to the adjudication still exist and are unlikely to be timely rectified), MCL 712A.19b(3)(g) (parentfailed to provide proper care or custody), and MCL 712A.19b(3)(j) (reasonable likelihood the child would be harmed
if returned to the parent). 1 We vacate and remand.
I. FACTS
Respondent, an intellectually disabled adult, began receiving mental health services from the Department of CommunityMental Health (CMH) in 2003. She had a long history of mental health issues including suicide attempts and was subjectto the guardianship of her mother prior to the commencement of this case. Once CMH became aware of her pregnancy,the Department of Health and Human Services (DHHS) became involved with her care, also. The DHHS providedservices to respondent during her pregnancy. CMH psychologist Renee Jones performed a psychological evaluationon respondent three months prior to her giving birth. Jones diagnosed respondent as having an intellectual disability,borderline personality disorder, attention deficit hyperactivity disorder, and “intermittent explosive disorder (a mooddisorder). Respondent's IQ tested in the mid- to high 60s, which gave her the adaptive functioning level of a five- toseven-year-old child. Adaptive functioning measures a person's ability to function independently in comparison to anage cohort. Jones opined that respondent's “disability will continue throughout her life and it functionally interfereswith her ability to make informed decisions in language, learning, self-direction, independent living and economic selfsufficiency.” Jones recommended a partial guardianship to assist respondent “in the areas of legal, medical, financial andplacement decision-making.” Respondent's mother was appointed her guardian. Even with the guardianship in place andthe respondent and the infant's father both residing in her guardian's home, the DHHS petitioned to remove respondent'schild five days after his birth citing concerns about the home environment and respondent's ability to care for the child.About four months after the child was removed, counsel for petitioner explained at length the “intense services” shebelieved would be necessary to provide respondent in order to comply with the Americans with Disabilities Act (ADA),42 USC 12101 et seq., in light of respondent's cognitive difficulties.
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Upon the recommendation of the DHHS, the court ordered the family be referred “for hands-on parenting instructionfor both parents through LACASA, Health[y] Families, PIP [Parent Infant Program], or similar one-on-one parentinginstruction with a service provider experienced in working with cognitively impaired people.” In her capacity as a DHHSfoster-care worker, Laurie Russell took over the case in January 2016. Russell testified at the termination proceedingsthat respondent, the child and the child's father were provided services including case management, therapy, and foodstamps, and were involved with PIP, the Healthy Families program, LACASA's Parent Coach program, and the Women,Infants, and Children program.
*2 At the close of testimony, the referee stated that she reviewed the recent Court of Appeals decision in In re Hicks/
Brown Minors, 315 Mich App 251; ––– NW2d –––– (2016) (Docket No. 328870), 2 which held that the DHHS wasrequired to provide the respondent services that reasonably accommodated her cognitive impairments before it couldterminate her parental rights. The referee then stated:
There have been reasonable accommodations for these parents. There have been more thanreasonable accommodations for these parents. There have been no less than four different servicesplus supervision of parenting time by Ms. Russell. So five different attempts at five different anglesto try to affect their parenting time. And for reasons that are not in their control they're unableto do it. And it is sad, but it is true. And I don't know what else the department could have done.I understand that Hicks Brown says the department is required now to search for a plan where aparent can be basically placed with a support person and the support person can raise the childwith the parent to ensure the safety. So it's basically the support person who is the parent helpingthe parent have contact with the child. I don't know what else the department can do. [The lawyer/guardian ad litem] is right[;] we can't go through a phonebook. They can't walk the streets lookingfor people to sign up for this. And the department asked the parents, they asked relatives. There'sno requirement that they search the entire family tree and find people the parents can't even identifyas support people. And there are no appropriate support people that can do that. I'm not evenconvinced that there are appropriate support people that can protect these parents who need careand support to meet their own needs. So I am going to recommend to the Judge that an order oftermination of parental rights be entered.
The court entered an order terminating respondent's parental rights.
II. ANALYSIS
A. NO–CONTEST PLEA
Respondent argues that the court violated her constitutional right to due process by accepting her no-contest plea withoutensuring that it had been made knowingly and understandingly in light of her cognitive disabilities. This argumentconstitutes a collateral attack on the court's assumption of jurisdiction, which is generally prohibited under In re Hatcher,443 Mich 426, 444; 505 NW2d 834 (1993). The Michigan Supreme Court has since held that such a challenge maybe permissible when “the manner in which the trial court assumed jurisdiction violated the [respondent's] due processrights.” In re Wangler/Paschke, 498 Mich 911, 911; 870 NW2d 923 (2015) (2015). Such is the case here.
“Generally, whether child protective proceedings complied with a respondent's substantive and procedural due processrights is a question of law that this Court reviews de novo. However, because the issue presented is an unpreserved claim
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of constitutional error, this Court will review for plain error affecting substantial rights.” In re TK, 306 Mich App 698,703; 859 NW2d 208 (2014) (citations omitted).
MCR 3.971 governs the entry of pleas in termination cases. Subsection (C)(1) requires the court to “satisfy[ ] itselfthat the plea is knowingly, understandingly, and voluntarily made” before it accepts the plea. At the time of the pleaproceeding, the court was aware that respondent was intellectually disabled, that she had difficulty reading, that hermental function was equivalent to that of a five- to seven-year-old, and that her disability interfered with her ability tomake informed decisions. Respondent was told that she had an attorney who “would make recommendations basedon what [she] want[ed] or would help [her],” and a guardian ad litem who would “make recommendations based onwhat she thinks is in [respondent's] best interest.” Before being prompted by her attorney, respondent initially said thatshe did not have a copy of the petition and had not reviewed it. After agreeing that she reviewed it, she stated she didnot have any questions. When asked whether she understood “the right to have the Department of Human Servicesor CPS prove the allegations against [her] by a preponderance of the evidence,” respondent answered yes. When askedwhether she understood the right to “cross-examine,” “subpoena witnesses” and have a “trial” with a “jury,” respondentanswered yes. When asked whether respondent understood that her “plea” would result in the court “taking temporaryjurisdiction” and that she would have to “comply with services and assessments,” respondent answered yes. When askedwhether she understood “that no contest doesn't mean not guilty or not responsible, it means that you're not requiredto make statements in court,” respondent answered yes. The court allowed respondent to plead responsible to the childbeing born, to attending a family team meeting, and certain allegations against the father. The court allowed respondentto plead no contest, based on a lack of memory, to having completed a psychological evaluation, to the contents of theevaluation, to receiving services from CMH, and to her mental limitations.
*3 Given this record, we cannot conclude that the court satisfied itself of the requirements of MCR 3.971(C)(1).Respondent was appointed a guardian ad litem, whose role was to make decisions in respondent's best interest and toensure respondent's welfare. MCR 3.916(A). The guardian ad litem stands in the place of the respondent as respondent'srepresentative in court when respondent, due to her intellectual disability, could not represent herself. Despite theseimportant roles, the guardian ad litem's representation was limited to the court asking the guardian ad litem whether shesupported respondent's plea and the guardian ad litem answering yes. This singular statement provided no indicationthat the guardian ad litem was assured and communicated to the court, that respondent understood her rights, andthe terms and the implications of her pleas of admission and no contest. It also did not provide a rationale for the no
contest plea based on a lack of memory. 3 The statement also was insufficient to give the court a basis upon whichto conclude that the pleas were in respondent's best interest. In error, the court directly questioned respondent as toher understanding of her pleas and relied on the responses of essentially, a five- to seven-year-old, to satisfy itself thatrespondent did understand. The court's summary consultation with the guardian ad litem was inadequate. Where theguardian ad litem's recommendation of the plea as being in respondent's best interests and assurance that respondentunderstood her rights was lacking, and where respondent could not provide this information otherwise, the court couldnot have satisfied itself that respondent's plea complied with the tenets of MCR 3.971(C)(1). The respondent, by enteringthe no contest plea, relinquished her right to a trial by judge or jury on the threshold jurisdictional question. There canbe no doubt that this is a substantial right that compels reversal.
B. STATUTORY GROUNDS FOR TERMINATION
1. STANDARD OF REVIEW
Respondent has also claimed that the termination decision itself was erroneous. We review for clear error the trial court'sfactual findings as well as its determination that a statutory ground for termination of parental rights has been provedby clear and convincing evidence. MCR 3.977(J); In re Trejo Minors, 462 Mich 341, 356–357; 612 NW2d 407 (2000). A
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finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made.In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
2. ANALYSIS
The court terminated respondent's parental rights under MCL 712A.19b(3)(c)(i), MCL 712A.19b(3)(g), and MCL712A.19b(3)(j), which provide as follows:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence,1 or more of the following:
* * *
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since theissuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditionswill be rectified within a reasonable time considering the child's age.
* * *
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonableexpectation that the parent will be able to provide proper care and custody within a reasonable time considering thechild's age.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmedif he or she is returned to the home of the parent.
Initially, we note that respondent has not directly challenged the court's findings or conclusion with regard to MCL712A.19b(3)(j). Given that only one statutory ground need be established to terminate parental rights, In re Frey, 297Mich App 242, 244; 824 NW2d 569 (2012), it is arguably unnecessary to address respondent's arguments regarding theother two grounds. However, because we read respondent's argument as presenting an overarching challenge to all threestatutory grounds based on whether the services she was provided complied with the ADA, we will address the issuein full.
Before terminating a person's parental rights, the DHHS is required to make “reasonable efforts” to keep the child inthe parent's care and to reunify the child and parent, with limited exceptions not applicable in this case. In re Hicks/Brown Minors, 315 Mich App at ––––; slip op at 6, citing MCL 712A.18f(1), (4) and MCL 712A.19a(2). Whether theDHHS's efforts were reasonable affects whether there was sufficient evidence to support a ground for termination. Id.When the parent is disabled, the DHHS must make reasonable accommodations under Title II of the ADA to ensurethat the parent benefits from the services it provides. Id.; slip op at 7; In re Terry, 240 Mich App at 25–26; see also 42USC 12132 (providing that “no qualified individual with a disability shall, by reason of such disability, be excluded fromparticipation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected todiscrimination by any such entity”).
*4 This Court recently addressed the standards for making reasonable accommodations in child-protective proceedingswhen providing services to a cognitively impaired parent in In re Hicks/Brown Minors, which involved a woman whoseIQ was tested at 70, slightly above that of respondent in the present case. In re Hicks/Brown, 315 Mich App at ––––;
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slip op at 1. Although the DHHS was aware of the woman's impairments, it spent two years providing services “gearedtoward a parent of average cognitive functioning.” Id. at ––––, slip op at 4. After reviewing the related caselaw, statutes,regulations, and publications on the subject, the Court held that when a parent is known or suspected to have a “cognitive,developmental, or intellectual impairment,”
the DHHS must offer evaluations to determine the nature and extent of the parent's disabilityand to secure recommendations for tailoring necessary reunification services to the individual. TheDHHS must then endeavor to locate agencies that can provide services geared toward assistingthe parent to overcome obstacles to reunification. If no local agency catering to the needs of suchindividuals exists, the DHHS must ensure that the available service providers modify or adjust theirprograms to allow the parent an opportunity to benefit equal to that of a nondisabled parent. If itbecomes clear that the parent will only be able to safely care for his or her children in a supportiveenvironment, the DHHS must search for potential relatives or friends willing and able to providea home for all. And if the DHHS shirks these duties, the circuit court must order compliance.Moreover, consistent with MCL 712A.19a(6), if there is a delay in providing the parent reasonablyaccommodated services or if the evidence supports that the parent could safely care for his or herchildren within a reasonable time given a reasonable extension of the services period, the courtwould not be required to order the filing of a termination period merely because the child has beenin foster care for 15 out of the last 22 months. [Id. at ––––; slip op at 16.]
Because those standards had not been met, the Court vacated the termination decision and remanded the case to allowthe DHHS to provide the respondent services that reasonably accommodated her cognitive impairment. Id. at ––––;slip op at 18.
Respondent argues that the DHHS failed to offer her specialized case planning that accommodated her intellectualdisabilities and that the court erred by terminating her rights under MCL 712A.19b(3)(c)(i ) without addressing whetherrespondent could have cared for the child with the proper support. We disagree. Within four and a half months ofthe child's removal, the DHHS had respondent evaluated, determined her individualized needs from the results of theevaluation, made contact with specific individuals as to recommendations of how to meet respondent's needs, andfollowed through with referrals. The DHHS realized that based on the psychological testing of respondent, compliancewith the ADA was required and that plain supervised parenting time was not a reasonable accommodation givenrespondent's cognitive ability. Instead, petitioner determined that respondent needed intense one-on-one parentinginstruction. The PIP and Healthy Families Program were identified to address respondent's individual needs. ThePIP covered teaching respondent about the emotional connection required to bond with her child, while the HealthyFamilies Program offered a hands on parenting skills program that took place in the home. Because both programs wereoffered through CMH, a service provider experienced in working with cognitively impaired people was involved. At thetermination hearing, the court summarized all the services respondent had been provided which included CMH services,family-support services, parenting classes and resource services, a psychological evaluation, supervised parenting timewith one-on-one instruction, PIP, a parenting coach, special education services, and the Early On program. Further,both Russell and Nicole Clark, a therapist employed in the developmental-disability program at Livingston CountyCommunity Mental Health, testified that the services respondent received had been adjusted for her cognitive disabilitiesby using pictures and repetition, saying things simply, and asking respondent to explain things back to ensure that sheunderstood them. These efforts meet the requirement that the DHHS “endeavor to locate agencies that can provideservices geared toward assisting the parent to overcome obstacles to reunification” and “ensure that the available serviceproviders modify or adjust their programs to allow the parent an opportunity to benefit equal to that of a nondisabledparent.” Id. at ––––; slip op at 16.
*5 Respondent also asserts that the DHHS failed to assist her in finding a housing situation in which she could care forher child. Under In re Hicks/Brown, 315 Mich App at ––––; slip op at 16, “[i]f it becomes clear that the parent will onlybe able to safely care for his or her children in a supportive environment, the DHHS must search for potential relatives
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or friends willing and able to provide a home for all.” The record shows that the DHHS fulfilled this duty. Russelltestified she and two previous caseworkers attempted to identify a person who could provide the constant guidance thatrespondent would need to safely care for the child, but none of the candidates were suitable, and the DHHS's attempt torefer respondent to a local agency that helps people with disabilities was unsuccessful. The fact that the DHHS's searchfor candidates was ultimately unsuccessful does not amount to a violation of the ADA, given that “[t]he ADA doesnot require petitioner to provide respondent with full-time, live-in assistance with her children.” In re Terry, 240 MichApp at 27–28.
Respondent next argues that the court erred by terminating her rights under MCL 712A.19b(3)(g) on the basis of itsfinding that she had not complied with the treatment plan, without addressing whether the treatment plan was reasonablein light of respondent's disability. As respondent notes, In re Hicks/Brown stated that a parent may not be ordered to“climb mountains that she could not possibly surmount” to avoid termination of her parental rights. In re Hicks/Brown,315 Mich App at ––––; slip op at 17. However, that statement was made in reference to a service plan that requiredthe cognitively impaired parent to acquire a GED and secure a job and housing on her own. Id. No such unreasonableexpectations were imposed here. The barriers that respondent was expected to overcome included her mental healthissues, cognitive delays, poor parenting skills, and history of domestic violence, and, as Russell and Clark testified,respondent received services that were tailored to accommodate her cognitive disabilities to help her do so.
Respondent also argues that the DHHS failed to order a psychiatric evaluation in addition to the psychologicalevaluation on which her treatment plan was based. However, In re Hicks/Brown requires only that the DHHS “offerevaluations to determine the nature and extent of the parent's disability and to secure recommendations for tailoringnecessary reunification services to the individual,” Id. at ––––; slip op at 16; it does not require that this evaluation beperformed by a psychiatrist rather than a psychologist.
Finally, respondent argues that the court erred by terminating her parental rights before she had an opportunity tobenefit from services tailored to her disability. However, as petitioner points out, respondent had 357 days between theinitial dispositional order and the termination order to rectify the conditions that led to the adjudication, while MCL712A.19b(3)(c)(i ) allows termination after 182 days.
Further, there is nothing in the record to indicate that additional time would have improved respondent's capacity tocare for her child, given how little she was able to retain and use from the tailored services she did receive. “In the eventthat reasonable accommodations are made but the parent fails to demonstrate sufficient benefit such that he or she cansafely parent the child, then the court may proceed to termination.” Id. at ––––; slip op at 16. The record shows thatafter receiving six months of services from parent coach Linda Spaine, respondent still had not demonstrated an abilityor an inclination to learn the basic skills she would need to care for the child, such as feeding him and talking to him, norhad she demonstrated an attachment to him or an ability to control her temper in front of him and focus on his needs.Spaine concluded that there was no reasonable expectation that respondent would ever be able to learn and apply theskills necessary to care for the child.
*6 Likewise, Russell testified that the closing documentation from the Healthy Families Program indicated that thefamily had not benefitted from the 10 months of in-home services they received, nor had the PIP worker been able tohelp respondent understand how having loud arguments in front of the child affected him. According to Russell, the PIPworker's report indicated that respondent was resistant to accepting instruction, appeared to have a lack of connectionwith the child, and was unable to apply the skills and concepts that she had been taught. Russell also concluded thatrespondent would not be able to rectify the barriers to reunification within a reasonable time.
Given this evidence, the court did not clearly err by concluding that there was no reasonable likelihood that respondentwould be able to rectify the conditions that led to the adjudication or provide the child proper care and custody withina reasonable time. MCL 712A.19b(3)(c)(i ), (3)(g).
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C. BEST–INTERESTS DETERMINATION
We review the trial court's determination that the termination of a person's parental rights was in the child's best interestsfor clear error. In re Trejo Minors, 462 Mich at 356–357. A finding is clearly erroneous if the reviewing court is left witha definite and firm conviction that a mistake has been made. In re Miller, 433 Mich at 337.
In deciding whether terminating a person's parental rights is in the best interests of the child, the court may consider (1)the child-parent bond, (2) the person's parenting ability, (3) “the child's need for permanency, stability, and finality,” (4)and “the advantages of a foster home over the parent's home[.]” In re Olive/Metts Minors, 297 Mich App 35, 41–42;823 NW2d 144 (2012).
The record showed that respondent had difficulty bonding with the child, that she did not have the ability to provide eventhe most basic care for him without constant supervision, and that respondent's home was an unsuitable environmentfor him. Respondent's argument that the court failed to consider whether she would have been able to care for the childwith proper support is unavailing, given that no such support was available. Under these circumstances, the trial court'sdecision that termination was in the child's best interests was not clearly erroneous.
Despite evidence of record to support the trial court's disposition, because the manner in which the court obtainedjurisdiction violated respondent's due process rights, the termination order cannot stand. Respondent's plea is set aside,the termination order is vacated and this case is remanded for proceedings not inconsistent with this opinion. We donot retain jurisdiction.
All Citations
Not Reported in N.W.2d, 2017 WL 510501
Footnotes1 The parental rights of the father were also terminated; he has not appealed.
2 Oral argument on the application for leave to appeal was granted. In re Hicks/Brown Minors, 499 Mich 982; 882 NW2d 136(2016).
3 We surmise that the lack of memory correlates to respondent's inability to form the required plea statement based on herintellectual disability—all the more reason for the guardian ad litem's recommendation of the plea to be on the record.
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KeyCite Red Flag - Severe Negative Treatment
Judgment Vacated by In re Jones, Mich., February 17, 2016
2015 WL 6506175Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
UNPUBLISHEDCourt of Appeals of Michigan.
In re JONES, Minors.
Docket No. 326252.|
Oct. 27, 2015.
Ontonagon Circuit Court, Family Division; LC No.2013–000013–NA.
Before MARKEY, P.J., and STEPHENS and RIORDAN, JJ.
Opinion
PER CURIAM.
*1 Respondent-mother appeals as of right the trial court order terminating her parental rights to two minor children,RJ and GJ, under MCL 712A.19b(3)(c)(i ) (conditions of adjudication continue to exist) and (j) (reasonable likelihood
that the children will be harmed if returned to the parent). 1 We remand this case to the trial court for redeterminationof the children's best interests, but otherwise reject respondent's claims.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In August 2013, petitioner, the Department of Health and Human Services (“DHHS”), filed a petition for the removal
of RJ, GJ, and another child 2 from respondent's home. 3 The petition included a series of allegations indicating thatrespondent had neglected and abused the children, and that respondent's home was an unfit place for the childrento live. Later that month, petitioner filed a supplemental petition that included additional allegations of neglect andabuse and again indicated that respondent's home constituted an unfit or unsafe home environment. At the preliminaryhearing in September 2013, the trial court determined that it could exercise jurisdiction over the children and authorizedthe petition in light of respondent's admissions—albeit with explanation—to three of the allegations in the petition:(1) that respondent slept in a camper, located on a campsite next to a lake, while the children played outside withoutsupervision; (2) that RJ, a toddler, walked along a well-traveled highway by herself while respondent was inside the homebathing another child; and (3) that respondent grabbed RJ by her hair to prevent her from walking onto a roadwaywhen the family was walking home from the store. It is undisputed that the trial court failed to comply with MCR3.971(C) when it accepted respondent's plea. However, the record clearly indicates that the trial court stated on therecord, before respondent admitted the three allegations, that the court would have jurisdiction over the children if itaccepted respondent's admissions. Following the hearing, the children were placed in their father's care.
Between September 2013 and May 2014, respondent was offered numerous services to address her parenting skills andanger issues, which included, among other things, anger management classes, parenting classes, counseling services,
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parenting aide assistance, and guidance for improving respondent's home environment and properly providing forthe children. Throughout this time period, respondent demonstrated some improvement in her interactions with thechildren during their supervised visits, although she occasionally regressed and became overwhelmed with supervisingthe children.
In May 2014, RJ and GJ were removed from their father's care and returned to respondent. Respondent's homeenvironment showed improvement, but she resisted services for GJ and began to miss appointments with her parentingaide, her counselor, and her caseworker and expressed frustration with, and resistance to, petitioner's involvement in herlife. In July 2014, it became evident that respondent had reverted to inappropriate and violent parenting of her children.
*2 In September 2014, a supplemental petition for removal was filed, which included allegations that respondentinappropriately disciplined and supervised the children, and that her home was an unfit place for the children to live.In particular, the petition alleged that (1) respondent lifted RJ off of a shopping cart by her hair, forcefully pushed RJagainst a wall, and yelled at RJ with her face inches away from RJ's face; (2) respondent placed tape over GJ's and RJ'smouths to make them stop talking; and (3) respondent pushed GJ with her foot, dragged GJ out of the store using GJ'sfoot, and then pushed the cart into GJ while GJ was on the ground. The trial court entered an emergency order removingthe children from respondent's care. Ultimately, the children were placed with respondent's aunt and uncle.
In October 2014, a supplemental petition was filed, which sought the termination of respondent's parental rights on thebasis that respondent was unable to control her anger and temper during challenging parenting situations, exhibitedabusive and neglectful parenting practices, displayed an inability to utilize proper parenting techniques in order to ensurethe safety of the children, and failed to provide structure and supervision for the children. The trial court found thattermination of respondent's parental rights to GJ and RJ was proper pursuant to MCL 712A.19b(3)(c)(i ) and (j). Thecourt further found that termination was in the children's best interests. Although the court noted that respondent hadmade some progress with regard to maintaining a clean home environment and providing food for the children, the courtfound that respondent did not demonstrate “the same progress in controlling her temper and parenting her children ina safe and controlled manner,” reverting back to violent and destructive parenting practices, especially when she wasstressed. The trial court also noted that petitioner had provided respondent with all of the services that it could offer,but, despite these services, respondent demonstrated “negligible progress” and failed to address her mental health issues.Respondent now appeals.
II. VALIDITY OF ADJUDICATION
Respondent first asserts that the trial court erroneously assumed jurisdiction over the children on the basis of heradmissions, arguing that (1) she did not intend for her admissions to function as a plea, and (2) the court failed to complywith MCR 3.971 and advise her of the consequences of entering a plea before she stated her admissions on the record.We, however, conclude that respondent may not challenge the trial court's initial exercise of jurisdiction in this appeal.
“Child protective proceedings have long been divided into two distinct phases: the adjudicative phase and thedispositional phase.” In re AMAC, 269 Mich.App 533, 536; 711 NW2d 426 (2006). “The adjudicative phase occurs firstand involves a determination whether the trial court may exercise jurisdiction over the child, i.e., whether the child comeswithin the statutory requirements of MCL 712A.2(b).” Id. “The dispositional phase involves a determination of whataction, if any, will be taken on behalf of the child.” Id. at 537. Ordinarily, in cases where “termination occurs followingthe filing of a supplemental petition for termination after the issuance of the initial dispositional order,” “an adjudicationcannot be collaterally attacked following an order terminating parental rights.” In re SLH, 277 Mich.App 662, 668; 747NW2d 547 (2008); see also In re Gazella, 264 Mich.App 668, 679–680; 692 NW2d 708 (2005) (“Matters affecting thecourt's exercise of its jurisdiction may be challenged only on direct appeal of the jurisdictional decision, not by collateralattack in a subsequent appeal of an order terminating parental rights.”), superseded in part on other grounds as stated
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in In re Hansen, 285 Mich.App 158, 163–164; 774 NW2d 698 (2009), vacated on other grounds 486 Mich. 1037 (2010).However, an exception to this rule applies when “termination occurs at the initial disposition as a result of a request fortermination contained in the original, or amended, petition for jurisdiction....” In re SLH, 277 Mich.App at 668.
*3 In this case, the adjudication and final disposition were separated by a lengthy period of attempts at reunification.Because this appeal is from a dispositional order of termination entered after the initial adjudication, respondent isprecluded from challenging the trial court's exercise of jurisdiction in this case. See also In re Hatcher, 443 Mich. 426,438–440; 505 NW2d 834 (1993) (stating that an error in the exercise of jurisdiction may be challenged in a direct appeal,but may not “be challenged years later in a collateral attack”).
III. SUFFICIENCY OF REUNIFICATION SERVICES
Next, respondent argues that the trial court erred in terminating her parental rights because termination was prematurein light of the fact that petitioner offered no further services after the children were removed from respondent's care forthe second time. Likewise, respondent contends that petitioner failed to fulfill its duty to expend reasonable efforts toreunify respondent with her children. We disagree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
To preserve an issue regarding the adequacy of the services provided during child protective proceedings, a respondentmust object or otherwise raise the issue when the services are offered. In re Frey, 297 Mich.App 242, 247; 824NW2d 569 (2012) (“The time for asserting the need for accommodation in services is when the court adopts a serviceplan....” [Quotation marks and citation omitted.] ). Respondent asserts that this issue was preserved through petitioner'sclaim in its petition for the termination of respondent's parental rights that it had expended reasonable efforts forreunification and through the statement of respondent's counsel in his written closing argument that “termination [was]not the solution” in light of respondent's compliance with her service plan before the children were removed from her care.However, we deem this issue unpreserved because neither of the statements cited by respondent challenged the adequacyof the services offered by petitioner. Accordingly, we review respondent's claim for plain error affecting substantial rights.Demski v. Petlick, ––– Mich.App ––––, ––––; –––– NW2d –––– (2015) (Docket No. 322193); slip op at 9. “To avoidforfeiture under the plain error rule, three requirements must be met: (1) the error must have occurred, (2) the error wasplain, i.e., clear or obvious, (3) and the plain error affected substantial rights.” Id . at ––––; slip op at 9–10 (quotationmarks and citation omitted).
“In general, when a child is removed from the parents' custody, the petitioner is required to make reasonable efforts torectify the conditions that caused the child's removal by adopting a service plan.” In re Fried, 266 Mich.App 535, 542;702 NW2d 192 (2005), citing MCL 712A.18f(1), (2), and (4); see also In re LE, 278 Mich.App 1, 18; 747 NW2d 883(2008). When the petitioner fails to offer services or provide a reasonable opportunity for a respondent to participate inservices, the result is a gap in the evidentiary record that renders termination of parental rights improper. In re Mason,486 Mich. 142, 158–160; 782 NW2d 747 (2010). However, “[w]hile the DH[H]S has a responsibility to expend reasonableefforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondentsto participate in the services that are offered.” In re Frey, 297 Mich.App at 248. When a respondent fails to adequatelyparticipate in, and benefit from, services that are in fact provided by petitioner, she is not entitled to claim that petitionerwas required to provide additional services. See id.
B. ANALYSIS
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*4 In this case, the trial court summarized the services offered as follows:
During the two years that [petitioner] worked with [respondent and the children's father] inOntonagon County, they were provided with parenting assistance, including Parent Aides,guidance on how to provide a proper physical home environment, physical care and needs,anger management, psychological needs assessment, general counseling services, Families Firstassistance, Friend of the Court SMILE program, Parenting Wisely programs. Additional serviceswere also provided for the children, some of which [respondent] accepted, but others she refused(such as much needed therapy, Head Start and Early On preschool services for [GJ], assistancein obtaining dental services for [GJ] and psychological services for herself if medication wasprescribed).
On appeal, respondent does not argue that she did not receive the services described by the trial court. Instead, she onlychallenges the fact that petitioner failed to provide additional services after the children were removed from her carefor the second time.
At the hearing on the petition in connection with the second removal, a DHHS worker testified that “the historical issuesthat we have at hand with services being provided to [respondent include that] every effort that [petitioner] has beenable to make has not been shown to [help respondent] be successful with parenting the [minor children] and, if anything,[respondent has been] destructive and plac[ed] them in unsafe situations.” The caseworker also stated that she coulddescribe the efforts that DHHS had made to correct respondent's parenting issues and the fact that those issues have“not been able to be resolved.” She elaborated:
Well, what's not in the Petition ... is that there is also a lack of cooperation that we have observedwith [respondent] over the last month. She has not ... cooperated with the weekly counseling sessionsand services that have been arranged.... She's also had an average of four missed appointmentswith ... a parent aide, which is supposed to service [respondent] on a twice a week basis and hasnot; and she has missed appointments for last two to three weeks with [another] parent aid....
The DHHS caseworker added that respondent's counselor had indicated that respondent “was showing frustration withthe Department and did verbalize ... a will or a desire not to cooperate.” When respondent's counsel asked, “Is it possibleto have any services implemented right now to—so that ... there cannot be or will not be a suspended parenting time?,”the DHHS caseworker responded, “Services through [petitioner] ... from my knowledge at this point, [are] exhausted.We've given [respondent] everything that we can—or currently are giving [respondent] everything that we can, and Idon't see any other way to implement any other services.” At the termination hearing, the DHHS caseworker againconfirmed that there were no further services that the agency could offer, and respondent had received all of services thatthe agency was capable of offering before the children were removed for a second time. Additionally, the trial court'sorder terminating parental rights reiterates these facts.
*5 Although the trial court ordered that “[r]easonable efforts for reunification should be continued” after the secondremoval, the record demonstrates that petitioner had previously expended extensive efforts to achieve reunification andthat services in addition to those already provided were not reasonable under the circumstances given respondent's lackof improvement from the previous efforts and the fact that petitioner had provided all of the services that it could offer.Although respondent asserts on appeal that she was steadily becoming a better parent throughout the proceedings, therecord indicates otherwise. If a respondent fails to display improvement from services, and there is no basis for believingthat additional services will be successful when the services already offered were ineffective, the logical conclusionis that additional services are not necessary under petitioner's obligation to expend reasonable efforts. Instead, it isapparent from the record that petitioner fulfilled its duty to make reasonable efforts toward reunification in this case,but respondent failed in her duty to participate in, or benefit from, the services provided. See In re Frey, 297 Mich.App
at 248. 4 Thus, respondent has failed to demonstrate a plain error affecting her substantial rights.
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IV. CONSIDERATION OF RELATIVE PLACEMENT
Respondent argues that the trial court's conclusions regarding the children's best interests were deficient because thecourt failed to explicitly consider in its best-interests determination the option of continuing placement of the childrenwith respondent's aunt and uncle. We agree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
This Court reviews for clear error a trial court's best-interest determination. In re White, 303 Mich.App 701, 713; 846NW2d 61 (2014), citing MCR 3.977(K). “A finding is clearly erroneous [if] although there is evidence to support it, thereviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.” In reMason, 486 Mich. 142, 152; 782 NW2d 747 (2010) (quotation marks and citation omitted; alteration in original).
Generally, a child's placement with a relative weighs against termination and is “an explicit factor to consider indetermining whether termination [is] in [a child's] best interests.” Id. at 164, citing MCL 712A.19a(6)(a); see also In reOlive/Metts Minors, 297 Mich.App 35, 43; 823 NW2d 144 (2012). If the court fails to expressly address placement witha relative, the record is inadequate to make a best-interest determination, and reversal is required. In re Olive/Metts,297 Mich.App at 43.
B. ANALYSIS
On appeal, respondent and petitioner agree that the trial court failed to expressly consider the children's placement withrespondent's aunt and uncle during its best-interest determination. Likewise, although it is evident that the trial court wasaware of the relative placement, as it mentioned in its factual findings that the children had been placed with respondent'saunt and uncle and appeared to be thriving in their care, the record does not indicate that the court explicitly consideredthe option of relative placement in determining whether termination was in the children's best interests, or recognizedthat a placement with relatives would weigh against termination. Accordingly, we vacate the trial court's best-interestdetermination and remand this case for further proceedings on this issue.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
*6 Lastly, respondent asserts that her attorney provided ineffective assistance throughout the child protectiveproceedings. In particular, she argues that trial counsel was ineffective for failing to object to the trial court's initialexercise of jurisdiction, failing to seek additional reunification services, and failing to assert that the trial court mustconsider, under In re Olive/Metts Minors, the children's placement with relatives during its best-interest determination.We disagree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
“Although the constitutional provisions explicitly guaranteeing the right to counsel apply only in criminal proceedings,the right to due process also indirectly guarantees assistance of counsel in child protective proceedings. Thus, theprinciples of effective assistance of counsel developed in the context of criminal law apply by analogy in child protective
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proceedings.” In re CR, 250 Mich.App 185, 197–198; 646 NW2d 506 (2002), overruled on other grounds by In re Sanders,495 Mich. 394; 852 NW2d 524 (2014); see also In re Simon, 171 Mich.App 443, 447; 431 NW2d 71 (1988). Our review of
respondent's claims is limited to mistakes apparent on the record because she did not move for a new trial or Ginther 5
hearing. People v. Petri, 279 Mich.App 407, 410; 760 NW2d 882 (2008). “A claim of ineffective assistance of counsel is amixed question of law and fact. A trial court's findings of fact, if any, are reviewed for clear error, and this Court reviewsthe ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo.” Id., citing People v.LeBlanc, 465 Mich. 575, 579; 640 NW2d 246 (2002).
In order to prove that counsel provided ineffective assistance, a respondent must demonstrate that (1) “ ‘counsel'srepresentation fell below an objective standard of reasonableness,’ “ and (2) respondent was prejudiced, i.e., “that ‘thereis a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have beendifferent.’ “ People v. Vaughn, 491 Mich. 642, 669–671; 821 NW2d 288, 305 (2012) (quoting Strickland v. Washington,466 U.S. 668, 688, 694; 104 S Ct 2052; 80 L.Ed.2d 674 (1984)). “A [respondent] must also show that the result thatdid occur was fundamentally unfair or unreliable.” People v. Lockett, 295 Mich.App 165, 187; 814 NW2d 295 (2012).“Effective assistance of counsel is presumed,” and a respondent bears a heavy burden of proving otherwise. Petri, 279Mich.App at 410. Likewise, a respondent “must overcome a strong presumption that counsel's performance constitutedsound trial strategy.” Id . at 411.
B. ANALYSIS
First, as discussed supra, respondent's claims related to the trial court's initial exercise of jurisdiction, including her claimof ineffective assistance, should have been raised in a direct appeal from that decision, not in this claim of appeal froma later decision to terminate parental rights. See In re Hatcher, 443 Mich. at 439–440; In re SLH, 277 Mich.App at 668.As such, this claim of error, which is related to the trial court's exercise of jurisdiction at the adjudicative stage, may notbe considered in this appeal. Nevertheless, the testimony in the record describing respondent's physical and emotionalabuse of the children clearly demonstrates that there is not a reasonable probability that the outcome of the proceedings,in this case the trial court's exercise of jurisdiction over the children, would have been different but for counsel's allegederrors. See MCL 712A.2(b)(1), (2); Vaughn, 491 Mich. at 669–671.
*7 Second, we reject respondent's claim of ineffective assistance arising from counsel's failure to request additionalservices when the children were removed a second time. Counsel's failure to advocate a meritless position cannotconstitute ineffective assistance of counsel. People v. Ericksen, 288 Mich.App 192, 201; 793 NW2d 120 (2010). Asexplained supra, petitioner was not required by law to renew services with each removal. Additionally, given the testimonyindicating respondent's minimal compliance and benefit from the services that had been offered, such that petitioner'sability to facilitate reunification had been “exhausted,” it is apparent that petitioner fulfilled its duty to make reasonableefforts toward reunification and that respondent failed to fulfill her duty to participate in and benefit from the servicesprovided. Moreover, the record suggests that counsel had reason to believe that a continued provision of services couldhave resulted in an expansion of respondent's record of resisting, or otherwise failing to benefit from, the services.Accordingly, counsel may have refrained from requesting additional services in order to avoid drawing attention tohis client's poor record in that regard. See Petri, 279 Mich.App at 411 (noting the strong presumption that counsel'sperformance constituted sound trial strategy).
Lastly, we need not consider respondent's argument concerning her attorney's alleged failure to argue that the trial courtwas required, under In re Olive/Metts Minors, to explicitly consider the children's placement with relatives during its best-interest determination. Our decision to vacate the court's best-interest determination and remand for redetermination ofthe children's best interests obviates any need to consider whether a deficiency in counsel's performance also necessitatesreconsideration of the best-interests determination. See B P 7 v. Bureau of State Lottery, 231 Mich.App 356, 359; 586NW2d 117 (1998) (“As a general rule, an appellate court will not decide moot issues.”). However, contrary to respondent's
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claims on appeal, the written closing argument prepared by respondent's counsel expressly reminded the trial court thata child's placement with relatives is a factor that the court needs to consider in determining a child's best interests.
VI. CONCLUSION
For the reasons stated above, we remand this case to the trial court for redetermination of the children's best interests inaccordance with In re Olive/Metts, 297 Mich.App at 43, but otherwise reject respondent's claims of error.
Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retainjurisdiction.
All Citations
Not Reported in N.W.2d, 2015 WL 6506175
Footnotes1 The court also terminated the parental rights of the children's father, but he has not appealed that decision and, as a result,
is not participating in this appeal.
2 The third child is not a subject of this appeal.
3 Before the petition for removal was filed in August 2013, respondent had been under the attention of Child Protective Servicesand received services from DHHS.
4 Respondent relies on In re Plump, 294 Mich.App 270, 273; 817 NW2d 119 (2011), in which we noted that the petitioner“provided respondent numerous services each time the children were removed from care....” As such, respondent contendsthat our statement established a rule that petitioner must recommence reunification services each time a child is removed froma parent's household. However, the context of the statement in In re Plump clearly indicates that we were merely observingthat petitioner had, in fact, provided services after each removal in that case; we were not establishing or referencing a rulethat services must be renewed with every removal in every case. Indeed, implicit in the requirement that petitioner musttake “reasonable efforts” to achieve reunification is an understanding that what is reasonable will vary from case to case.Respondent's attempt to wring from In re Plump a firm rule requiring renewed services after each removal is misguided.
5 People v. Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
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2016 WL 6995056Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
UNPUBLISHEDCourt of Appeals of Michigan.
In re A. NOFFSINGER, Minor.
Docket No. 331108.|
Nov. 29, 2016.
Livingston Circuit Court, Family Division; LC No.2014–014680–NA.
Before: RONAYNE KRAUSE, P.J., and O'CONNELL and GLEICHER, JJ.
Opinion
PER CURIAM.
*1 After nearly two years of reunification services, the circuit court terminated respondent-father's parental rights tohis young daughter. Respondent raises an interesting challenge to the court's jurisdiction in this case: that the court failedto advise him of his right to appeal its adjudication decision. Addition of this information to the pertinent court rulemay be warranted, but even were we to review his adjudication challenge we would find it meritless. Respondent alsochallenges the statutory factors supporting the termination decision and the court's determination that termination ofhis rights was in his child's best interests. Although the court improperly relied upon respondent's prior termination ofparental rights to support its decision, we otherwise find no error. We affirm.
I. PRE–ADJUDICATION BACKGROUND
AN was born in 2010 to respondent and his then-girlfriend, Leah Houghtaling. Respondent and Houghtaling'srelationship ended shortly thereafter; AN remained in Houghtaling's custody and respondent exercised unsupervisedparenting time. Houghtaling abused heroin and AN experienced withdrawal symptoms after birth. After her relationshipwith respondent ended, Houghtaling often left AN in the care of the child's maternal grandmother for extended periodswhile she continued to abuse substances. Houghtaling also embarked on a new relationship with a drug-addicted partner.On December 2, 2013, Child Protective Services (CPS) substantiated a neglect complaint and began to provide servicesto Houghtaling and AN. But on January 29, 2014, Houghtaling was arrested for shoplifting while AN was with her,activating enhanced CPS intervention.
The Department of Health and Human Services (DHHS) initially planned to place AN with her noncustodial parent—respondent. However, Houghtaling “refused to safety plan with [respondent] and allow him to care for the child.” TheDHHS placed AN with her maternal grandmother. AN was later moved into an unrelated foster care placement.
The DHHS filed its initial petition on February 28, 2014. In relation to respondent, the DHHS alleged that his rights tohis three older children were terminated on December 21, 2009 based on his failure to benefit from services to rectify hisalcohol abuse and violent tendencies. A July 23, 2008 substance abuse assessment categorized respondent as sufferingfrom “Alcohol Dependence.” In January 2014, respondent admitted that he continued to abuse alcohol. The petition
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described respondent's 2009 plea-based conviction for domestic violence against Houghtaling, as well as his historiccriminal background for alcohol-related offenses and violent offenses committed while under the influence. The petitionconcluded with an allegation that respondent informed a caseworker that day that he “would not do any service plan.”
Respondent immediately sought to be dismissed as a named respondent and have AN placed in his care. He challengedthe adequacy of the allegations against him, claiming he had done nothing to harm his child and that the allegationsall stemmed from his prior child protection case. According to respondent, the prosecutor added the allegations againsthim just before the February 28 hearing. Prior to that, respondent alleged, the DHHS advised respondent he could takeAN home that day. The court rejected respondent's procedural challenges and requested further information on thesubstance of the allegations.
*2 Respondent filed a subsequent motion for court review of AN's placement. He presented a March 6, 2014 emailfrom DHHS caseworker Rebecca Robydek to respondent's counsel admitting that respondent provided a clean drugscreen on December 4, 2013, a home study established his residence was appropriate for AN, and respondent was up-to-date on his child support obligations. The worker continued:
To date, [respondent] has been added as a respondent to the petition and while there is no doubtthat he can benefit from future services, this child has a parent who is capable and willing to carefor her and she is placed outside of her father's care. I have spoken to [respondent] who indicatedthat he is willing to participate in any services with the hopes that his daughter is placed in his care.DHS was ready to place the child with this father in a “safety plan” at the [family team meeting]and respondent mother refused this idea, stating she would rather the child be in a substance abuserecovery program with her. However, the recovery program was not a concrete plan and had notbeen arranged and the child's safety was intensive risk [sic] with the mother. Therefore, DHS filedthis petition with the plan that the minor child would be placed with her father as an in-home ward.
At the March 21, 2014 hearing, respondent's counsel agreed to withdraw the motion to review AN's placement andadjourn the date of the adjudicative trial. Respondent agreed to participate in a substance abuse assessment andpsychological evaluation in the interim to assist the court's decision. A March 31 substance abuse assessment indicatedthat respondent “meets the ... criteria for alcohol dependence.” The evaluator noted respondent's historical alcoholuse and alcohol-use-related criminal history. Despite this history, the assessor noted, “[respondent] continues to drinkalcohol when CPS is drug and alcohol testing him.” The assessor further emphasized that respondent had increased hisalcohol consumption over time, demonstrating higher tolerance associated with dependence.
Dr. Harold Sommerschield conducted respondent's psychological evaluation in April 2014. Dr. Sommerschield had alsoevaluated respondent in 2008 in connection with his earlier child protective proceeding. Dr. Sommerschield describedrespondent as “exceptionally defensive” during the 2014 interview and testing and as giving a skewed and partialrecitation of the facts. Additional testing was required before an evaluation could be completed and finalized.
Additional testing was not conducted. Instead, the DHHS presented a plea agreement in which respondent admittedthat his rights to his older three children were terminated in a previous case. He acknowledged his recent assessmentof alcohol dependence and conceded that he was not currently in treatment or attending Alcoholics Anonymous (AA).Respondent also admitted his 2009 domestic violence conviction for assaulting Houghtaling. Respondent entered hisplea with the understanding that AN would remain in her maternal grandmother's care. He also promised to followthrough with psychological and psychiatric evaluations, as well as substance abuse treatment.
*3 Before accepting respondent's plea, the court elicited testimony regarding respondent's age, literacy, and sobriety atthat moment. Respondent acknowledged that he had reviewed his proposed plea agreement and intended to admit itsallegations. The court then placed the following colloquy on the record:
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The Court. And do you understand if I accept your plea I will take jurisdiction over your child and order you to docertain specific things such as comply with a parent agency agreement which will be prepared and possibly be amended?
Respondent Father. Yes.
The Court. Do you understand the failure to do those things ordered by the Court may result in the termination ofyour parental rights to [AN]?
Respondent Father. Yes.
* * *
The Court. Do you understand that you have a right to have a lawyer represent you during all proceedings includingtrial, disposition and appeal and that if you cannot afford a lawyer the court would appoint one for you?
Respondent Father. Yes.
The Court. Do you understand that you have a right to a jury trial in this case?
Respondent Father. Yes.
The Court. And that you would be presumed innocent of the allegations until proven by a preponderance ofevidence ... ?
* * *
Respondent Father. Yes.
The Court. Do you understand that the petitioner, the prosecutor and the [DHHS] would have the burden of proofand that you would not have to prove anything or present any evidence at time of trial if you did not wish to.
Do you understand that?
Respondent Father. Yes.
The Court. Do you understand that you would have the right through yourself or your counsel to examine all witnessesthat would appear at the trial and have your lawyer cross-examine them?
Respondent Father. Yes.
The Court. On the other hand if you wish to present evidence and have witnesses come and testify in court the courtwould issue and authorize subpoenas so you could have people come in and testify on your behalf if you wanted to.Do you understand that?
Respondent Father. Yes.
The Court. Do you understand that if I accept your plea you're not going to have a trial of any kind; you'd be givingup all rights you would have at a trial and the rights that I've explained to you?
Respondent Father. Yes.
The Court. Do you understand that these proceedings will be one continuous proceeding which includes the trialdisposition and any pleas instead of a trial?
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Respondent Father. Yes.
The Court. Do you understand that this plea will result in the Court taking jurisdiction over your child and that theCourt could make decisions about you and your child and order you to comply with certain things under a treatmentplan or services agreement?
Respondent Father. Yes.
The Court. Do you understand that your plea today may result and actually is going to result in temporary removalof your child?
*4 Respondent Father. Yes.
The court then inquired into the voluntariness of respondent's plea and proceeded to question respondent regarding theallegations underlying his plea agreement.
II. ADJUDICATION CHALLENGES
Respondent waited until the conclusion of the termination proceedings to challenge the propriety of court jurisdiction.On appeal, respondent contends that his adjudication was invalid because the court failed to advise him of his right toappeal the first order of disposition placing the child under the court's jurisdiction and because the allegations againsthim were insufficient to warrant court supervision of his parent-child relationship.
“In Michigan, child protective proceedings comprise two phases: the adjudicative phase and the dispositional phase.” Inre Sanders, 495 Mich. 394, 404; 852 NW2d 524 (2014). “Generally, a court determines whether it can take jurisdictionover the child in the first place during the adjudicative phase.” Id. As relevant to this case, MCL 712A.2(b) provides thata trial court has jurisdiction over a child under 18 years of age under the following circumstances:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so,neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for hisor her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandonedby his or her parents, guardian, or other custodian, or who is without proper custody or guardianship .... [or]
* * *
(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part ofa parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.
As a general rule, a court's exercise of jurisdiction over a child cannot be collaterally attacked; it must be challenged in adirect appeal. In re Hatcher, 443 Mich. 426, 439; 505 NW2d 834 (1993). In Hatcher, 443 Mich. at 433, the Supreme Courtdescribed that the Michigan Constitution vests courts with jurisdiction over juvenile protection cases and the courtscan neither enlarge nor diminish this jurisdiction. Courts also may not accept jurisdiction based on agreement of theparties, but “must make [their] own determination[s] regarding the existence of a statutory basis for jurisdiction.” Id.As noted, the Legislature has elucidated the circumstances under which a juvenile court may exercise its jurisdiction inMCL 712A.2 and this decision is made in the adjudicative phase. Hatcher, 443 Mich. at 433–436.
When the probate court has established temporary jurisdiction over a child, an erroneous exerciseof that jurisdiction may be challenged at any of the mandatory review hearings. MCL 712A.19. Aparent is also entitled to request a rehearing not later than twenty days after an order terminatingparental rights and removing the child from parental custody, or at any time the court has
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jurisdiction over the child. MCL 712A.21. A probate court can also enter an order for supplementaldisposition as long as the child remains under the court's jurisdiction. Id. These statutory safeguardsensure the parent, guardian, or custodian time to review and even challenge a court's exercise of itsjurisdiction. [Hatcher, 433 Mich. at 436.]
*5 In Hatcher, the respondent-father attacked the lower court's subject matter jurisdiction following the court'stermination decision. Id. at 436. The father consented to the creation of a state wardship, but argued that the court failedto find sufficient facts to support court jurisdiction thereby voiding the termination proceeding ab initio. Id. at 436–437.The Supreme Court held
that the probate court's subject matter jurisdiction is established when the action is of a classthat the court is authorized to adjudicate, and the claim stated in the complaint is not clearlyfrivolous. The valid exercise of the probate court's statutory jurisdiction is established by thecontents of the petition after the probate judge or referee has found probable cause to believethat the allegations contained within the petitions are true. Here, the petition alleged neglect,criminality, drunkenness, and a failure to maintain proper custody and guardianship of the infant.When the referee considered the facts alleged in the petition and the testimony presented, hefound probable cause that the allegations were true. Consequently, it was proper for the court toinvoke its jurisdiction, assuming the court also had jurisdiction of the parties, a fact not here indispute. Procedural errors that may have occurred did not affect the probate court's subject matterjurisdiction. [Id. at 437.]
Hatcher concluded that although neither parent “stipulated facts that supported the court's jurisdiction,” jurisdictionwas “established by the pleadings, such as the petition, rather than by later trial proceedings that may establish bya preponderance of the evidence that a child is within the continued exercise of the probate court's subject matterjurisdiction.” Id. at 437–438.
Ultimately, Hatcher recognized that “a party may attack subject matter jurisdiction at any time,” and that a lackof subject matter jurisdiction voids a judgment. Id. at 438. However, the Court concluded, “the respondent confusesthe distinction between whether the court has subject matter jurisdiction and whether the court properly exercisedits discretion in applying that jurisdiction.” Id. Once jurisdiction has attached, “mere errors or irregularities in theproceedings, however grave, although they may render the judgment erroneous and subject to be set aside in a properproceeding for that purpose, will not render the judgment void, and until set aside it is valid and binding for all purposesand cannot be collaterally attacked.” Id. at 439 (quotation and citation omitted). The lack of subject matter jurisdictioncould only be attacked on direct appeal. Id. In making this decision, the Court overruled caselaw allowing terminationdecisions to “be collaterally attacked on the basis of a lack of subject matter jurisdiction if a legally sufficient petitioncreated a permanent wardship with no evidentiary basis to support the decision.” Id. at 440, 444, citing Fritts v. Krugh,354 Mich. 97; 92 NW2d 604 (1958). Instead, the Court explained, “a court's subject matter jurisdiction is establishedwhen a proceeding is of a class the court is authorized to adjudicate and the claim stated in the complaint is not clearlyfrivolous.” Id. at 444.
*6 For many years, this Court relied upon Hatcher to preclude nearly all post-termination attacks on court jurisdictionin child protective proceedings. See In re SLH, 277 Mich.App 662, 668–669; 747 NW2d 547 (2008); In re Gazella, 264Mich.App 668, 679–680; 692 NW2d 708 (2005), superseded in part on other grounds as stated in In re Hansen, 285Mich.App 158, 163–164; 774 NW2d 698 (2009), vacated on other grounds 486 Mich. 1037 (2010). However, in recentyears, this Court and the Supreme Court have whittled away at the prohibition.
For example, in In re Kanjia, 308 Mich.App 660, 669; 866 NW2d 862 (2014), this Court held that a parent may attack,even after termination, a circuit court's exercise of jurisdiction if obtained in contravention of In re Sanders, 495 Mich.
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394; 852 NW2d 524 (2014). Following Sanders' abolition of the “one-parent doctrine,” a parent who has never been
adjudicated unfit may appeal a jurisdictional order after termination. 1
In In re Jones, unpublished opinion per curiam of the Court of Appeals, issued October 27, 2015 (Docket No. 326252),unpub op at 2, this Court acknowledged that the circuit court failed to ensure that the respondent-mother's jurisdictionalplea was voluntary and accurate before accepting it as mandated by MCR 3.971(C). The respondent-mother challengedthe adjudication, but this Court treated it as a collateral attack and declined to consider it. Id ., unpub op at 3. TheSupreme Court vacated this Court's order, as well the lower court's adjudicative order, and remanded “for a newadjudication determination.” In re Jones, 499 Mich. 862; 874 NW2d 129 (2016). In the wake of Jones, it appears thata respondent may attack a circuit court's efforts to establish the voluntariness and accuracy of a jurisdictional pleafollowing termination.
In In re Hudson, unpublished opinion per curiam of the Court of Appeals, issued August 26, 2008 (Docket No. 282765),unpub op at 12, the trial court failed to warn the respondent-mother that her plea to jurisdiction could be used against herat termination in violation of MCR 3.971(B)(4). The trial court also failed to appoint counsel to represent the respondent-mother following the filing of the original petition. Id., unpub op at 12–13. This Court reversed the termination decisionbecause clear and convincing evidence did not support the statutory grounds for termination, not based on errors in theadjudicative phase. Id., unpub op at 18. The Supreme Court affirmed, but also determined that the court's adjudicativeerrors “compounded the errors committed by the trial court in terminating the respondent's parental rights.” In reHudson, 483 Mich. 928, 928–929; 763 NW2d 618 (2009).
In In re Mitchell, unpublished opinion per curiam of the Court of Appeals, issued March 24, 2009 (Docket No. 286895),the circuit court affirmed the lower court's determination that statutory grounds supported termination. The SupremeCourt disagreed with that assessment. Moreover, the Supreme Court held that the trial court committed plain errorduring the adjudicative phase by failing to timely appoint counsel for the respondent-father and failing to advise therespondent that his plea to jurisdiction could be used against him at a termination hearing. In re Mitchell, 485 Mich. 922;773 NW2d 663 (2009). Hudson and Mitchell now permit a parent to challenge after termination a circuit court's failureto timely appoint counsel and advise “of the consequences of the plea.” MCR 3.971(B)(4).
*7 Here, the circuit court failed to advise respondent of his appellate rights. Respondent contends that the SupremeCourt's recent activity sets a trend, permitting his appellate challenge to jurisdiction on this ground after termination.MCR 3.971(B) does not require the court to advise a parent of his or her appellate rights before accepting a plea togrounds supporting jurisdiction. MCR 3.972 does not provide for such advice of rights at an adjudicative trial. Andneither MCR 3.973 nor MCR 3.974 requires such notification at the first dispositional hearing following adjudication.Rather, the rules only require courts to advise respondents of their right to appellate review “after entry of an orderterminating parental rights.” MCR 3.977(J)(1)(a).
Respondent suggests that the court rules regarding advice of rights at the adjudicative phase are insufficient. MCR3.993(A)(1) provides that “an order of disposition placing a minor under supervision of the court” is appealable by rightto this Court. Accordingly, after a parent enters a plea to jurisdictional grounds under MCL 712A.2 or is adjudicatedunfit at trial and the court enters its first dispositional order, the parent is entitled to appeal. This right can be lost if theparent forgoes an appeal until termination is ordered. In the meantime, if the child is placed outside the parent's custody,the parent-child bond is weakened by limited contact and the case for termination is strengthened. As such, respondenturges that courts should be required to notify parents of their appellate rights at adjudication.
Respondent also compares this case to criminal plea proceedings. In relation to jurisdictional plea proceedings, thisCourt has held instructive “by analogy” criminal law rules and precedent. In re Zelzack, 180 Mich.App 117, 125; 446NW2d 588 (1989). Under the criminal procedure court rules, when a trial court accepts a plea in a criminal proceeding,the court must advise the defendant that “any appeal from the conviction and sentence pursuant to the plea will be by
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application for leave to appeal and not by right.” MCR 6.302(B)(5). The court must repeat this notification followingsentencing. MCR 6.425(F).
Ultimately, we find insufficient ground to extend the law to nullify a circuit court's jurisdiction in a child protectiveproceeding when the court fails to notify the parent that the jurisdictional order must be directly appealed. To date,there is no Supreme Court decision declaring a constitutional right to such notice. Accordingly, Kanjia is not on point.Moreover, Jones, Hudson, and Mitchell permit collateral attacks in the face of a violation of an existing court rulemandate. The Supreme Court may wish to consider amending MCR 3.971(B) and MCR 3.972 to require appellate rightnotifications at the adjudicative phase. But we decline to impose a duty on all courts in this opinion. Respondent pleadedto jurisdiction and in the absence of constitutional error or a court rule violation, is bound by that decision.
III. DISPOSITIONAL BACKGROUND
*8 During the child protective proceedings, respondent was ordered to complete his psychological evaluation,participate in psychological counseling, attend AA meetings, and submit to random alcohol screening. Respondent testedpositive for alcohol on June 30, July 14, and September 29, 2014. He claimed that he was exposed to a chemical at workthat could result in a false positive result, but never presented requested documentation from his doctor. Respondentclaimed that he attended AA meetings, but delayed in providing attendance sheets to document his compliance.Dr. Sommerschield remained unable to complete respondent's psychological evaluation because he tested “within themoderate to extreme range of defensiveness.” Respondent did attend psychological counseling and his first assignedtherapist reported that he was “receptive” and showed improvement.
In the fall of 2014, however, respondent's compliance with the parent-agency agreement faltered. Respondent repeatedlyfailed to call in for random alcohol screens. He also stopped attending counseling sessions for a time.
Respondent returned to counseling with a new provider in April 2015. However, he continued to exhibit strange andmenacing conduct. In August 2015, respondent unnerved a caseworker by revealing that he knew the security code toenter the DHHS building where supervised parenting time sessions had been conducted. This resulted in a change ofvenue. Respondent also made “passive threats” by making a point of identifying the caseworker's vehicle and informingthe worker that he knew she took I–96 East home. AN's foster parents requested permission to take the child out of stateon vacation and Houghtaling granted permission. Respondent became angry and threatened to report the foster parentsto the police for kidnapping. He also made vague threats to “create havoc.” During a subsequent visit, respondent wasangered when the caseworker denied his request to take AN to the park. He positioned himself between the worker andthe door, blocking the worker's exit and loudly argued with and swore at the caseworker. Visitors to the site summoneda supervisor and AN was removed from the room. As a result of respondent's outbursts, a new system was arrangedwhereby respondent entered through a back door and remained segregated in the building until the foster parentsdropped off AN and left.
The counselor respondent began seeing in the spring of 2015, Karen Bergbower, reported that respondent showedvast improvement. She blamed the caseworker assigned around the same time for causing several problems, failing tocommunicate concerns to the counselor, and behaving unprofessionally. Bergbower described respondent as a large manwith a loud voice who is in constant motion. His demeanor could be perceived as intimidating although that was not hisintent. Bergbower admitted that a child AN's age could be “traumatized” by seeing her parent act as respondent had.She also noted that respondent required approximately six more months of therapy to reach his goals.
*9 In relation to AN, social worker Mary Hayek conducted a trauma assessment in June 2015. Hayek reported thatAN had a “fragile” and “aroused” nervous system. She described that in infancy, children learn how to control theirnervous systems with the assistance of their primary caregiver. A combination of factors—premature birth, withdrawal
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upon birth, separation from parents, frequent moves—had delayed this process approximately 1 ½ years in AN. As aresult, AN had difficulty socializing with her peers, was inappropriately clingy with adults, and could not focus, furtherdelaying her education. Hayek opined that AN required occupational therapy to learn to self-regulate. She also quicklyneeded a sense of security and knowledge of where her permanent residence would be.
Ultimately, the DHHS filed a series of supplemental petitions seeking termination of respondent's parental rights, thelatest in August 2015. That petition outlined respondent's extensive history of alcohol-related offenses and domesticviolence incidents. The petition continued by elucidating respondent's history with CPS and the prior provision ofservices. The DHHS alleged that respondent's failure to benefit from those services resulted in the termination of hisparental rights to his three older children from two prior relationships. The petition reiterated respondent's statements onFebruary 28, 2014, “that CPS had ‘nothing’ on him” and “that he ‘would not do any service plan’ “ related to AN's case.
The petition recited concerns from respondent's substance abuse assessment that he “appeared to minimize his use ofalcohol” and that he failed to fully disclose his criminal history of alcohol-related offenses. Thereafter, respondent calledin but failed to appear for nine random screens, failed to call or appear on 12 dates, and tested positive for alcoholon three. The DHHS emphasized that respondent missed nine sessions with his first counselor, Shirley Brogan, anddisregarded her advice to attend 90 AA meetings in 90 days. He failed to present any sign-in sheets to establish attendanceat AA meetings. Respondent then reported that his attorney possessed the relevant evidence, but later admitted thatthis was false and that he had not attended AA because he did not like it. He eventually provided proof of attendingonly seven meetings.
The petition described respondent's October 27, 2014 outburst in court and altercation with the caseworker in the courthallway, and the withdrawal of respondent's retained counsel after a similar outburst in August 2015. It describedrespondent's aggressive conduct toward the caseworker in April 2015. The DHHS indicated that on May 6, 2015, thecaseworker discontinued respondent's daily telephone contacts with AN after he made several threats to the caseworkerand the foster parents. On May 21, despite being notified that AN was on vacation with the foster family and would notbe available for parenting time, respondent appeared at the DHHS office and was ordered off the premises. On August17, respondent again intimidated the caseworker and caused a scene requiring removal of AN during a visit. On August19, respondent ignored the safety plan for arriving at parenting time sessions, watched the foster parents' arrival, andthen commented to the worker about the driver. The petition also outlined respondent's history of tardiness to supervisedparenting time sessions and his habit of discussing the case in front of AN.
*10 Based on the myriad allegations, the DHHS sought termination of respondent's parental rights under MCL712A.19b(3)(c)(i ), (g), (j), and (l ). The court terminated respondent's rights in December 2015. The court acknowledgedthat respondent had shown improvement in the last couple months of the proceedings. However, respondent's consistentfailure to follow through with services geared toward reaching sobriety and his enduring menacing and angry conducttoward the caseworkers and in court established that the conditions that led to adjudication had not been rectified, thatrespondent could not provide for a child's needs, and that AN faced a risk of harm if returned to respondent's care. Thecourt further supported termination under factor (l ) based on the prior termination of respondent's parental rights tohis older three children on essentially the same grounds as the current proceedings.
IV. TERMINATION SUPPORTED BY STATUTORY GROUNDS
Respondent challenges the statutory grounds supporting the termination decision. Pursuant to MCL 712A.19b(3), acircuit court “may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence” thatat least one statutory ground has been proven. The petitioner bears the burden of proving that ground. MCR 3.977(A)(3); In re Trejo, 462 Mich. 341, 350; 612 NW2d 407 (2000). If the court relies on new grounds raised in a supplementalpetition, legally admissible evidence must underlie the termination decision. MCR 3.977(F)(1)(b). We review a circuit
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court's factual finding that a statutory termination ground has been established for clear error. In re Rood, 483 Mich.73, 90–91; 763 NW2d 587 (2009). “A finding of fact is clearly erroneous if the reviewing court has a definite and firmconviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe thewitnesses.” In re Moss, 301 Mich.App 76, 80; 836 NW2d 182 (2013) (quotation marks and citation omitted). “Clear errorsignifies a decision that strikes us as more than just maybe or probably wrong.” In re Williams, 286 Mich.App 253, 271;779 NW2d 286 (2009).
The circuit court terminated respondent's parental rights under MCL 712A.19b(3)(c)(i ), (g), (j), and (l ) which provide:
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since theissuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i ) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditionswill be rectified within a reasonable time considering the child's age.
* * *
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonableexpectation that the parent will be able to provide proper care and custody within a reasonable time considering thechild's age.
* * *
*11 (j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will beharmed if he or she is returned to the home of the parent.
* * *
(l ) The parent's rights to another child were terminated as a result of proceedings under section 2(b) of this chapteror a similar law of another state.
Respondent contends that the DHHS could support termination under no statutory ground because it failed to makereasonable efforts toward reunification of parent and child. Absent extenuating circumstances not present here, “when achild is removed from the parents' custody, the petitioner is required to make reasonable efforts to rectify the conditionsthat caused the child's removal....” In re Fried, 266 Mich.App 535, 542; 702 NW2d 192 (2005). Respondent cites noservice that was denied. Rather, he claims that the termination was improperly based on his contentious relationship withcaseworker Katelyn DesJardins Knopf. There is no hint on the record that the DHHS limited its reunification effortsbased on this conflict. Indeed, the DHHS modified parenting time arrangements and its interactions with respondent toovercome the ill will. Accordingly, we grant no relief on this ground.
In relation to the statutory grounds, respondent correctly posits that the circuit court improperly relied upon the priortermination of his parental rights to support termination in this case under factor (l ). In In re Gach, ––– Mich.App––––; ––– NW2d –––– (Docket No. 328714, issued April 19, 2016), slip op at 7, this Court declared that this subsection“provides constitutionally deficient protection to a respondent's due process interest in raising his or her children” andthereby invalidated termination on this ground.
However, termination under MCL 712A.19b(3) need only be supported by one statutory ground and the DHHSestablished three others here. Clear and convincing evidence established that respondent did not adequately benefitfrom sobriety services. Respondent's chronic alcoholism was a key factor in the court's taking of jurisdiction. Yet, fromFebruary 2014 through the spring of 2015, respondent refused to participate in AA meetings. Respondent failed to
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regularly call in for and submit to random alcohol screens until more than a year into the proceedings. And Bergbowertestified that respondent relapsed in August 2015 when the DHHS sought termination.
Respondent's 2009 domestic violence against Houghtaling also supported the court's jurisdictional order. At thetermination hearing, Houghtaling testified regarding additional assaults by respondent against her, her mother, andrespondent's own parents. The latest incident occurred in May 2013. Shirley Brogan and Karen Bergbower describedthe work they had done with respondent so he could recognize and curb his aggressive tendencies. Despite intensivetherapeutic services during these proceedings (as well as counseling provided in the last), respondent continued to exhibitexplosive outbursts and use threats and threatening innuendo to coerce others. More than one caseworker testifiedregarding respondent's conduct, as did Houghtaling. The court also observed respondent's conduct first hand. Theseincidents amply supported that respondent had not benefitted from services, warranting termination under factor (c)(i ).
*12 Even accepting as true Bergbower's testimony that respondent did not intend to intimidate but was just naturallybombastic, clear and convincing legally admissible evidence supported that respondent could not provide proper careand custody for AN and that AN would likely face harm in respondent's care. Mary Hayek's trauma assessment revealedthat AN experienced development, physical, and social delays as a result of the vast turmoil in her young life. Hayekopined that AN has “an aroused, fragile nervous system.” AN needs a calm, stable caregiver to assist her while she learnsto regulate her system. Stress and additional caregiver changes would further delay AN's progress. Although respondentinteracted well directly with AN and was fully aware of AN's special needs, he continued to act out inappropriately inher presence. The caseworkers reported that respondent repeatedly discussed the case in front of AN, even on the eveof termination. As late as August 2015, respondent became so angry with a caseworker that he dissolved into vulgarityand shouting during a parenting time session and AN has to be removed from the room. This conduct demonstratesthat respondent cannot provide the “loving, structured, and stable home” that AN requires. Accordingly, terminationwas also supported under factors (g) and (j).
V. BEST INTERESTS
Finally, respondent contends that termination of his parental rights was not in AN's best interests. “Once a statutoryground for termination has been proven, the trial court must find that termination is in the child's best interests before itcan terminate parental rights.” In re Olive/Metts, 297 Mich.App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5).“[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of theevidence.” Moss, 301 Mich.App at 90. The lower court should weigh all the evidence available to it in determining thechild's best interests. Trejo, 462 Mich. at 356–357. Relevant factors in this consideration include “the child's bond to theparent, the parent's parenting ability, the child's need for permanency, stability, and finality, and the advantages of afoster home over the parent's home.” Olive/Metts, 297 Mich.App at 41–42 (citations omitted).
Everyone agreed that respondent shares a bond with his daughter and that they love each other. AN is always excitedto see her father, vocalizes her love, and enjoys doing activities with him during parenting time. Moreover, Hayekadmitted that it would be very hard on AN to learn that she would never see respondent again. However, respondent'saggressive and angry conduct in front of the child negated any benefit he provided AN, given the child's extremesensitivity. Extending the proceedings to permit additional services to address respondent's behavioral deficits placedAN in danger of further turmoil; her foster parents expressed their fear for their other children based on respondent'sconduct, which might result in yet another move for the child if respondent remained in the picture. In the event oftermination, however, the foster family expressed a willingness to adopt and continue supporting AN's development.Ultimately, the circumstances preponderated in favor of termination.
*13 We affirm.
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All Citations
Not Reported in N.W.2d, 2016 WL 6995056
Footnotes1 In this regard see also In re Farris, 497 Mich. 959; 858 NW2d 468 (2015); In re Reginier, 497 Mich. 975; 860 NW2d 131 (2015).
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People v. Williams, Not Reported in N.W.2d (2016)
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2016 WL 3004598Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
UNPUBLISHEDCourt of Appeals of Michigan.
PEOPLE of the State of Michigan, Plaintiff–Appellant,v.
Andrew WILLIAMS, Defendant–Appellee.
Docket No. 326401.|
May 24, 2016.
Wayne Circuit Court; LC No. 14–003288–FC.
Before: OWENS, P.J., and BORRELLO and STEPHENS, JJ.
Opinion
PER CURIAM.
*1 The prosecution appeals by right the trial court's orders suppressing evidence of a gun seized by police officers anddismissing charges against defendant of two counts of assault with a dangerous weapon, MCL 750.82, two counts ofassaulting, resisting or obstructing a police officer, MCL 750.81d(1), and one count of possession of a firearm during thecommission of a felony (felony firearm), MCL 750.227b. We reverse both orders and remand for proceedings consistentwith this opinion.
Defendant moved to quash the Information and the charges against him. At hearings on the motion, Officer KennethJohnson testified that he and his partner responded to a report that a man was standing in the doorway of a homearmed with an assault weapon. The officers approached the home on foot from about three houses away. When OfficerJohnson was standing in the neighbor's yard, he saw defendant in the living room of the house. Officer Johnson testifiedthat the front door of defendant's home was wide open, there was no screen door, and the home was laid out so thatwhen you entered the door you were in the living room. Officer Johnson observed defendant bobbing his head to musicthat was playing loudly, while holding something in his right hand. Then defendant noticed the officers and raised hisright hand, which was holding a revolver, to eye level and pointed it at the officers. The officers ran to the side of thehouse, and Officer Johnson yelled for defendant to drop the gun and pointed his own weapon at defendant. Defendantcomplied with orders, and the officers were able to handcuff him and recover defendant's weapon, which was taken intoevidence. Officer Johnson acknowledged that the officers did not have a warrant to enter the home, and he could notidentify defendant's residence from a photograph presented at the hearing. Defendant's wife identified photographs ofthe residence she shared with defendant and testified that the house had a screen door, that a wooden door led into alittle foyer, and that the living room was to the left of the door.
After hearing this evidence, the trial judge announced that he would visit defendant's home himself to determine if theevents could have occurred as Officer Johnson testified. Subsequently, the prosecution filed a motion for disqualificationof the trial judge. In the motion, the prosecution alleged that the trial judge had ordered the assistant prosecutor anddefense counsel to appear at defendant's address on a certain date and time. On that date, the two attorneys, the judge,and three police officers appeared. The judge entered defendant's home while defendant and defendant's wife were inside,
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without the presence of either attorney or any of the officers, and remained there for approximately one to two minutes.The prosecution alleged in its motion that the judge's conduct created the appearance of impropriety and that the judgeshould recuse himself from the case. The trial court denied the motion.
*2 At a further hearing regarding defendant's motion to quash the evidence, defendant argued that the officers createdexigent circumstances by approaching his house with their guns drawn, that the living room of defendant's home couldnot be seen from the front door as the officers claimed, and that their warrantless entry into defendant's home was illegal.The judge found that Officer Johnson's testimony was “not believable” and his claims were “physically impossible.” TheCourt granted the motion to suppress the evidence and dismissed the charges.
On appeal, plaintiff first argues that the trial court's dismissal of the charges against defendant violated the separationof powers doctrine. We agree and, since defendant concedes this point, further review is unnecessary. Const 1963, art 3,§ 2; People v. Morrow, 214 Mich.App 158, 161, 165; 542 NW2d 324 (1995).
Next plaintiff argues that the trial court relied upon clearly erroneous findings of fact to discredit the officer's testimony.In reviewing a trial court's decision on a motion to suppress evidence, this Court reviews the court's factual findings forclear error and the court's conclusions of law de novo. People v. Snider, 239 Mich.App 393, 406; 608 NW2d 502 (2000),citing MCR 2.613(C).
Plaintiff asserts that the trial judge based his decision on two erroneous factual findings: the time the sun set on the day atissue and that the police officer's version of events was impossible. First, we find that it is undisputed that the trial judgeerred when he found that sunset occurred on the day at issue at 7:17 p.m. and that the police officer's testimony that itwas daylight at 7:00 p.m. was inaccurate. As conceded by defendant, pursuant to the U.S. Naval Observatory, sunset inDetroit on the day at issue occurred at 7:55 p.m. Therefore, the trial judge relied upon an incorrect fact in determiningthat the officer's testimony was inaccurate.
The trial judge also visited the scene and, based upon his observations there, determined that the events could nothave occurred as Officer Johnson testified and found that the officer's testimony “just is not believable.” However, thecredibility of witnesses is the province of the jury and not of the trial judge. People v. Odom, 276 Mich.App 407, 419;740 NW2d 557 (2007). Officer Johnson's testimony, even if it was inaccurate on certain details regarding defendant'sresidence, did establish that he observed defendant with a gun and that defendant pointed the gun at two police officersin full uniform. It is up to the jury to have determined if they believed this testimony or not.
Plaintiff also argues that the trial judge erred in granting the motion to suppress because the gun was properlyseized under the exigent circumstances and plain view exceptions to the search warrant requirement. The exigentcircumstances exception requires “probable cause that the premises to be searched contains evidence or suspects andthat the circumstances constituted an emergency leaving no time for a warrant.” People v. Davis, 442 Mich. 1, 24; 497NW2d 910 (1993) (citations omitted). The plain view exception allows a police officer to seize items in plain view if theofficer is lawfully in the position to have that view and the evidence is obviously incriminatory. People v. Champion, 452Mich. 92, 101; 549 NW2d 849 (1996).
*3 Testimony was presented that defendant had a gun that he pointed at both Officer Johnson and his partner. Atthe time, the officers were lawfully responding to a call that defendant was standing on his porch with a weapon. Theofficers ordered defendant to drop his weapon, and when he did, they had no time to obtain a warrant but had to actimmediately to secure defendant and the gun. Likewise, after defendant was ordered onto the ground and handcuffed,the gun was in plain view and secured. Based upon these two exceptions to the warrant requirement, the gun shouldnot have been suppressed.
Finally, plaintiff argues that a new judge should be assigned to try this case to preserve the appearance of justice.
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The general concern when deciding whether to remand to a different trial judge is whether theappearance of justice will be better served if another judge presides over the case. We mayremand to a different judge if the original judge would have difficulty in putting aside previouslyexpressed views or findings, if reassignment is advisable to preserve the appearance of justice, andif reassignment will not entail excessive waste or duplication. [Bayati v. Bayati, 264 Mich.App 595,602–603; 691 NW2d 812 (2004) (citations omitted).]
Here, remand to a different judge should occur. Disqualification of a judge is warranted when, as here, “[t]he judgehas personal knowledge of disputed evidentiary facts concerning the proceeding.” MCR 2.003(C)(1)(c). As discussedabove, the trial judge visited the scene and conducted his own investigation regarding whether the events as testified toby the officer were possible. The trial judge concluded that the officer's testimony was “fabricated” and dismissed thecase based upon his personal knowledge. Based upon these facts, we find that “the original judge would have difficultyin putting aside previously expressed views or findings” and “reassignment is advisable to preserve the appearance ofjustice.” Bayati, 264 Mich.App at 602–603.
Reversed and remanded for proceedings consistent with this opinion before a different judge. We do not retainjurisdiction.
All Citations
Not Reported in N.W.2d, 2016 WL 3004598
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In re Warsinski/Kimmel, Not Reported in N.W.2d (2018)
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2018 WL 987421Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
UNPUBLISHEDCourt of Appeals of Michigan.
IN RE WARSINSKI/KIMMEL, Minors.
No. 338104|
February 20, 2018
St. Clair Circuit Court, Family Division, LC No. 16–000243–NA
Before: Sawyer, P.J., and Murray and Stephens, JJ.
Opinion
Per Curiam.
*1 Respondent appeals as of right the order exercising jurisdiction over her minor children. Respondent also challengesthe trial court's determination that at least one of the statutory grounds for termination of parental rights set forth inMCL 712A.19b(3) was proved by clear and convincing evidence and that terminating her parental rights was in thechildren's best interests. We affirm.
I. STANDARD OF REVIEW
This Court reviews a trial court's decision to exercise jurisdiction for clear error in light of the court's findings of fact. Inre BZ, 264 Mich. App. 286, 295; 690 N.W.2d 505 (2004). To properly exercise jurisdiction, the trial court must find thata statutory basis for jurisdiction exists. Whether a court has jurisdiction is determined by a parent's plea of admission orno contest, MCR 3.971, or by the court or a jury at a trial, MCR 3.911 (A); MCR 3.972. If the court conducts a trial, thetrier of fact must find that one or more of the statutory grounds for jurisdiction has been proven by a preponderance ofthe evidence. MCR 3.972(C)(1) and (E). We also review for clear error a trial court's findings that at least one statutoryground existed to terminate parental rights and that termination was in the child's best interests. In re Rood, 483 Mich.73, 91; 763 N.W.2d 587 (2009); In re JK, 468 Mich. 202, 209; 661 N.W.2d 216 (2003); MCR 3.977(K). To be clearlyerroneous, a decision must be more than maybe or probably wrong. In re Williams, 286 Mich. App. 253, 271; 779 N.W.2d286 (2009). Clear error exists “if the reviewing court has a definite and firm conviction that a mistake has been committed,giving due regard to the trial court's special opportunity to observe the witnesses.” In re BZ, 264 Mich. App. at 296–297.
II. BACKGROUND
Respondent is the mother of four children, two of which are the subject matter of these proceedings. Respondentacknowledged that she was unable to properly care for her children, then ages 3 years and 3 months, when sheagreed to have the maternal grandparents appointed guardians of the children in 2005. Respondent was required tocomply with a limited guardianship placement plan designed to maintain her relationship with her children, whichincluded weekly parenting time at the maternal grandparents' home. Respondent also agreed to participate in and
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arrange positive monthly outings with her children, complete parenting classes, be gainfully employed, establish a newresidence, complete a psychological evaluation and follow all recommendations, and successfully complete psychologicalcounseling. Additionally, respondent agreed to follow the rules of the guardians' home. Respondent was not orderedto pay support other than to redirect child support paid to respondent by the children's fathers. A 2008 family courtcustody order incorporated the terms of the limited guardianship placement plan and additionally required respondentto maintain appropriate levels of communication with her children's counselors, teachers, and medical providers.
*2 Initially, the maternal grandparents were authorized to care for the children as their limited guardians pursuant toMCL 700.5204(2). However, in 2010, their authority was derived from a custody order entered by the family court andthe limited guardianship was dissolved. In 2016, the maternal grandparents sought to adopt the children. They petitionedand were appointed full co-guardians of the children. They then filed a petition to terminate respondent's parental rightsand proceed with adoptions. Respondent denied the petition allegations. Following an adjudication trial, the trial courtconcluded that there was sufficient evidence to acquire jurisdiction of the children. The trial court also concluded thatthe evidence established grounds to terminate respondent's parental rights and that termination of her rights was in thechildren's best interests.
III. JURISDICTION
The trial court did not clearly err in assuming jurisdiction of the children pursuant to MCL 712A.2(b)(1) and (6)(A) and(B), which provides for jurisdiction in the following circumstances:
(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so,neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for hisor her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandonedby his or her parents, guardian, or other custodian, or who is without proper custody or guardianship....
* * *
(6) If the juvenile has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to700.8206, and the juvenile's parent meets both of the following criteria:
(A) The parent, having the ability to support or assist in supporting the juvenile, has failed or neglected, without goodcause, to provide regular and substantial support for the juvenile for 2 years or more before the filing of the petitionor, if a support order has been entered, has failed to substantially comply with the order for 2 years or more beforethe filing of the petition.
(B) The parent, having the ability to visit, contact, or communicate with the juvenile, has regularly and substantiallyfailed or neglected, without good cause, to do so for 2 years or more before the filing of the petition.
There was sufficient evidence for the trial court to establish jurisdiction pursuant to MCL 712A.2(b)(1). The recordshows that respondent neglected or refused to properly care for her children. At adjudication, the maternal grandmothertestified that she and her husband had provided daily care of the children for more than 12 years with little or no assistancefrom respondent. The record showed that respondent was unable or unwilling to establish and maintain suitable housingand financial stability. Respondent relied on the maternal grandparents to care for her children except for a brief periodin 2007 and 2008 when she began to show some progress in her willingness and ability to regularly engage in parenting.In 2007, respondent stated: “I made a decision. I said that I want my kids with me and I was going to do what I needto get that done. I was tired of everybody else taking care of them.” Sadly, the lengthy record shows that respondentchronically failed to follow through with this declaration. She did not comply with the limited guardianship placement
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plan or the circuit court custody order that were designed to foster and maintain a relationship between respondent andher children. Respondent's long history of noncompliance was evidence of her continued neglect.
Respondent's contact with her children did not progress beyond a few overnight visits at a time, the last of which was in2009. Respondent's own testimony showed an unwillingness to improve her relationship with her children in the past sixyears. Respondent testified that she did not know her children's present grade levels, the names of teachers, and schoolprogress or challenges. Respondent did not attend any of the children's counseling or medical appointments, and sheacknowledged, “I've seen my kids a total of maybe 24 times, maybe 30 out of six years.” Most visits were brief duringholidays and special occasions.
*3 From 2005 through 2017, respondent offered a plethora of reasons for not taking care of her children: medical issues,stress, unsafe housing, financial instability, inability to work, denial of a claim for social security disability benefits, otherappointments, caring for her husband, and disagreeing with the maternal grandparents' parenting decisions. Althoughrespondent testified that she provided some financial support in 2007 when she was employed for approximately eightmonths, the maternal grandmother testified that respondent did not provide any financial support or gifts after thatperiod, except Christmas gifts after the 2016 termination petition was filed. Respondent did not pay any supporteven when she was receiving base pay from her husband while he was in military service. Respondent claimed thatshe was disabled and unable to work. However, the record shows that she continued to claim a disability for yearsbecause of a seizure disorder and posttraumatic stress disorder. In 2007 she testified that her claim for Social Securitydisability benefits was denied. The trial court encouraged her to retain an attorney to further pursue a claim. At the2017 adjudication trial respondent testified that she had not made any progress in obtaining benefits. Moreover, she hadreceived a release from her doctor to resume work and was caring for her disabled husband 18 hours each day.
These proofs similarly support a finding of jurisdiction pursuant to MCL 712A.2(b)(6)(A) and (B). The maternalgrandparents had standing to seek guardianship in 2016 pursuant to MCL 700.5204(1), which states that a personinterested in the welfare of a minor may petition the court for appointment of a guardian for the minor. There wassufficient evidence that respondent failed or neglected to provide regular and substantial support for her children, withoutgood cause, for well over two years before the termination petition was filed on July 14, 2016. Also, respondent did notregularly contact or visit with her children, without good cause, for more than three years. The record does not supportrespondent's claim that the maternal grandparents refused to let her see the children. Over the course of seven reviewhearings from 2005 through 2010, the maternal grandparents repeatedly encouraged respondent to parent her childrenand usually facilitated parenting time, often providing respondent with transportation. The maternal grandparentsregularly stated that they desired respondent to care for her children and that they viewed their guardianship rolesas limited and temporary. The trial court concluded that the maternal grandmother was a credible witness “becauseof my familiarity with [the maternal grandmother] during this entire process ... for the last nine years. I've found [thematernal grandmother] to be encouraging of the relationship between [the older child] and her parents when her parentswere reasonably available and appropriate to do so.” Moreover, the trial court advised respondent that she could file amotion to change a custody order at any time. At one point after 2010, respondent requested a modification of parentingtime through the Friend of the Court. The maternal grandparents appeared at the hearing, but respondent did not.Respondent knew there was an avenue by which she could see her children more frequently if the maternal grandparentstruly denied her access. The trial court reasonably concluded:
You really get down to how much contact is appropriate and what's regular and substantial. Beinga parent to child is not showing up on major holidays and saying, boy, isn't this nice and, gosh, I'dlike to stop by once a month or once every three months and just kind of see how you're doing....They've got to be there. They've got to be there all the time ... through the good, the bad, the kidsare sick, not sick, whatever. You're supposed to be there. I don't think that there's certainly beenthat level of contact. I also think that [the maternal grandparents] put effort in to ensure that that
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contact was maintained and I think but for their efforts to do so I don't think [respondent] wouldhave done as well as she did. Even as well as she did I don't believe is sufficient to satisfy the test.
Respondent also challenges the trial court's finding of jurisdiction pursuant MCL 712A.2(b)(4), which provides:
(4) Whose parent has substantially failed, without good cause, to comply with a limitedguardianship placement plan described in section 5205 of the estates and protected individuals code,1998 PA 386, MCL 700.5205, regarding the juvenile.
*4 Because jurisdiction was properly exercised on other grounds, it is unnecessary for this Court to review this claim.
IV. STATUTORY GROUNDS FOR TERMINATION
The trial court did not clearly err in finding at least one statutory ground existed to terminate respondent's parental rights.
Respondent's parental rights were terminated pursuant to MCL 712A.19b(3)(f)(i ) and (ii ), (g), and (j) which provide:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence,1 or more of the following:
* * *
(f) The child has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8206,and both of the following have occurred:
(i) The parent, having the ability to support or assist in supporting the minor, has failed or neglected, without goodcause, to provide regular and substantial support for the minor for a period of 2 years or more before the filing ofthe petition or, if a support order has been entered, has failed to substantially comply with the order for a period of2 years or more before the filing of the petition.
(ii) The parent, having the ability to visit, contact, or communicate with the minor, has regularly and substantiallyfailed or neglected, without good cause, to do so for a period of 2 years or more before the filing of the petition.
* * *
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonableexpectation that the parent will be able to provide proper care and custody within a reasonable time considering thechild's age.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmedif he or she is returned to the home of the parent.
The statutory requirements of (g) and (f)(i ) and (ii ) mirror those properly used by the trial court to acquire jurisdiction;however, the requisite proof is by the higher standard of clear and convincing evidence.
The evidence that established jurisdiction pursuant to MCL 712A.2(b)(1) and (6)(A) and (B) also meets the clear andconvincing evidentiary standard required to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(g)and (f)(i ) and (ii ). Respondent unsuccessfully argues that termination was improper because the maternal grandparents
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were guardians for less than two years prior to the filing of the termination petition. The two-year period required underMCL 712A.19b(3)(f) plainly relates to the parent's conduct and not the length of the guardianship.
The record clearly showed that respondent did not engage in the most rudimentary aspects of parenting for years. Shehad the ability to visit, contact, or communicate with her children and regularly and substantially failed or neglected,without good cause, to do so for two years or more before the filing of the 2016 petition.
The trial court also did not clearly err in terminating respondent's parental rights under MCL 712A.19b(3)(j) even thoughthere was no evidence that respondent previously had intentionally harmed the children. The trial court reasonablyconcluded that the weight of the evidence showed that respondent's inability to address her mental health, medicalconditions and “juggle all the different demands on her time” would unintentionally cause emotional and potentialphysical harm to the children if they were returned to her care after living in the maternal grandparents' safe and stablehome for 12 years.
*5 Respondent, relying on In re Boursaw, 239 Mich. App. 161; 607 N.W.2d 408 (1999), argues that she chose to exhibitproper parenting by not demanding a change in custody when she was unable to safely care for her children because ofher medical condition. Respondent's argument in effect is an admission that she was unable to parent her children sincethe 2010 custody order. Unlike the parent in Boursaw, there was no evidence that could lead the court to reasonablyconclude that with proper motivation respondent could begin serious work in addressing her parenting deficits. After12 years of reviewing respondent's parenting, there was little reason for the trial court to be “cautiously optimistic” thatprogress could be made as in the Boursaw case. Id. at 171–172.
Respondent argues unsuccessfully that the maternal grandparents' 2016 guardianship was improper. There were groundsfor terminating respondent's parental rights independent of the maternal grandparents being recently appointed as thechildren's full guardians. Thus, as properly noted by the trial court, a full guardianship appointment was unnecessaryto provide a basis for terminating respondent's parental rights.
V. BEST–INTEREST DETERMINATION
The trial court did not clearly err in finding that terminating respondent's parental rights was in the children's bestinterests.
If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in thechild's best interests, the court must order termination of parental rights and that additional efforts for reunification ofthe child and parent not be made. MCL 712A.19b(5); In re Beck, 488 Mich. 6, 11; 793 N.W.2d 562 (2010). A trial courtmay consider evidence on the whole record in making its best-interest determination. In re Trejo, 462 Mich. 341, 356–357;612 N.W.2d 407 (2000). A best interest finding must be supported by a preponderance of the evidence. In re Moss, 301Mich. App. 76, 83; 836 N.W.2d 182 (2013). The trial court may consider various factors, in addition to the child's bondto the parent, In re BZ, 264 Mich. App. at 301, including the parent's parenting ability, In re Jones, 286 Mich. App. 126,129–130; 777 N.W.2d 728 (2009), and the child's need for permanency, stability and finality, In re Gillespie, 197 Mich.App. 440, 446–447; 496 N.W.2d 309 (1992). 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. In re White, 303 Mich. App. 701, 714; 846 N.W.2d 61 (2014).
Respondent asserts that there was insufficient evidence for the court to make a best-interest determination because therewas no testimony or record of what had occurred with the family from 2010 until 2016. The scant evidence during thatperiod underscored the fact that respondent had a tenuous bond with her children. Respondent asserts that the maternalgrandmother's parenting memorandum showed that respondent was heavily involved with the children in 2013 and 2014.
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That memorandum noted that from 2013 until July 21, 2016, respondent spoke with her children twice and visited 25times. Visits most often were during holiday celebrations initiated by the maternal grandparents. Respondent arrivedlate and stayed briefly. Occasionally she would call to make plans to spend time with the children but would not followthrough. Respondent was habitually unwilling to commit to any regular parenting schedule despite repeated requestsby the maternal grandparents and the court. The maternal grandparents never said “no” to respondent's requests forunscheduled visits and would be “ecstatic” when respondent did call. Respondent testified that seven additional contactswere not included on the memorandum. Even giving respondent the benefit of these additional contacts, the evidenceshowed that she was unwilling to create and maintain a consistent parent relationship with her children.
*6 The record shows that the children thrived while in the maternal grandparents' care. The grandparents desired toadopt the children. The Legal Guardian Ad Litem advised the trial court that the children had consistently stated thatthey wanted legal permanency. They wanted to preserve a relationship with both parents but not have the psychologicalburden that their placement with the maternal grandparents could be undone. The maternal grandmother testified:
[The oldest child's] one remark was she would belong. She would feel she had family and she wouldbelong. Right now they've been in limbo.... I think they sense that they know it's not permanentand that at any point, you know, mom could come in and take them or say that she would like toget custody back or whatever. And I don't really think that's in their best interest to have that fear.
Respondent's claim that the trial court improperly considered in camera interviews with the children is waived becauserespondent agreed to the in camera interviews. Moreover, the in camera interviews were proper because the children wereold enough (ages 14 and nearly 12 at the time of termination) to articulate their desires regarding their placement and theinterviews protected them from the trauma of making a custodial choice in open court by direct and cross examination.Molloy v. Molloy, 247 Mich. App. 348, 351; 637 N.W.2d 803 (2001), aff'd in part, vacated in part on other grounds 466Mich. 852; 643 N.W.2d 754 (2002); Impullitti v. Impullitti, 163 Mich. App. 507, 510: 415 N.W.2d 261 (1987). Moreover,nothing in the record suggests that the trial judge elicited any information other than the children's placement preferencesduring the in camera interviews. MCR 3.210(C)(5).
The trial court reasonably concluded that the maternal grandparents' home was the only home that the children had everknown. The maternal grandparents lacked the legal capacity to direct the children's care in their absence. The maternalgrandmother testified that she and her husband “want a peace of mind. If something happens to us we want to make surethey're taken care of. We don't want them back into the court system or wherever they would go at that point. We want toensure them and tell them that this is where they're going to be and they don't have to worry about it.” Clearly the recordshowed that the children needed and desired the continuity, certainty, and permanency that only adoption could provide.The trial court did not clearly err in finding that termination of respondent's parental rights was in their best interests.
Affirmed.
All Citations
Not Reported in N.W.2d, 2018 WL 987421
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