Opinion
No. 351933 No. 352547
06-18-2020
In re BRAUN, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Lenawee Circuit Court Family Division
LC No. 16-000808-NA Before: GADOLA, P.J., and CAVANAGH and M. J. KELLY, JJ. PER CURIAM.
In these consolidated appeals, respondent-father and respondent-mother appeal by right the trial court's order terminating their parental rights to their children, GB and EB. For the reasons stated in this opinion, we affirm the court's orders taking jurisdiction over the children, but vacate the orders terminating respondents' parental rights and remand for further proceedings.
I. BASIC FACTS
Prior to the proceedings in this case, respondents voluntarily released their parental rights to their three oldest children. Subsequently, shortly after GB's birth in 2018, petitioner, the Department of Health and Human Services (DHHS), filed a petition asking the court to take jurisdiction over GB and to terminate respondents' parental rights at the initial disposition. Then, in 2019, shortly after EB's birth, petitioner filed a petition asking the court to take jurisdiction over EB and to terminate respondents' parental rights at the initial disposition. A combined adjudication trial was held on both petitions in October 2019. Following the trial, the jury found that there was a statutory basis to take jurisdiction over the children and the matter was set for a termination hearing. Following the November 2019 termination hearing, the trial court entered an order terminating respondents' parental rights after finding statutory grounds for termination and finding that the termination of respondents' parental rights was in the children's best interests.
II. RIGHT TO A FAIR TRIAL
A. STANDARD OF REVIEW
Respondent-father contends that the trial court's adjudication order and termination order must be reversed because he was denied his right to a fair trial at adjudication because the judge was biased and prejudiced against him. Respondent-mother argues that the adjudication trial was not fair because she was deprived due process protections. Respondents did not raise these issues before the trial court, so they are not preserved. See In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011). Unpreserved issues are reviewed for plain error affecting substantial rights. Id. "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. (quotation marks and citations omitted).
B. ANALYSIS
MCR 2.003(C)(1) provides a nonexhaustive list of reasons to disqualify a judge from presiding over proceedings, including that the judge is biased against a party or that the judge "has personal knowledge of disputed evidentiary facts concerning the proceeding." However, "[a] trial judge is presumed to be impartial and the party who asserts partiality has a heavy burden of overcoming that presumption." In re MKK, 286 Mich App 546, 566, 781 NW2d 132 (2009). "A showing of prejudice usually requires that the source of the bias be in events or information outside the judicial proceeding." Id.
Respondent-father first contends that the trial court had "personal knowledge of disputed evidentiary facts concerning the proceeding" in violation of MCR 2.003(C)(1)(c) because the judge took judicial notice of the court file involving respondents' older children. Respondent-father misapprehends what constitutes "personal knowledge." Black's Law Dictionary (11th ed) states that "personal knowledge" is "[k]nowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said." Thus, it is clear that the judge in this case, by taking judicial notice, did not have personal knowledge of the information contained in the case file. Rather, the judge's knowledge came from a source other than her own firsthand observations or experiences. Disqualification was not warranted under MCR 2.003(C)(1)(c).
Respondent-father also maintains that the trial judge demonstrated bias by ruling in favor of petitioner on 21 out of 23 objections. He also asserts that judicial bias was established by the court allowing petitioner to question respondent-father about contact he had with the police after the trial had already begun. The police contact occurred when the children were not in his care, did not result in criminal charges, and was not alleged in the petition. Yet "[d]isqualification on the basis of bias or prejudice cannot be established merely by repeated rulings against a litigant, even if the rulings are erroneous." In re MKK, 286 Mich App at 566.
Respondent-father next argues that the trial court demonstrated "extreme bias" against him by reading the petitions to the jury and allowing the jury to have copies of the petitions with them during deliberations. He maintains that the trial court "never gave any cautionary instructions that the petitions were not proof themselves . . . ." However, the trial court instructed the jury that, although they would be provided with copies of the petitions, the petitions were not evidence, and "jurors are presumed to follow their instructions . . . ." Ykimoff v W A Foote Memorial Hosp, 285 Mich App 80, 109; 776 NW2d 114 (2009). Moreover, respondent-father consented to the judge's decision to read to the petitions to the jury and to provide copies of the petitions to the jury during deliberations. "Unequivocal indications that one approved of a course of action taken in the trial court constitute waiver. To hold otherwise would allow counsel to harbor error at trial and then use that error as an appellate parachute." In re Dorsey, 306 Mich App 571, 590; 858 NW2d 84 (2014) (quotation marks, brackets, and citations omitted), vacated in part on other grounds 500 Mich 920 (2016). Accordingly, this challenge is waived.
Respondent-mother argues that she was denied her right to a fair trial. She does not assert judicial bias, but rather, she generally alleges that her due process right to a fair trial was violated. Specifically, she contends that she was denied a fair trial when the trial court read the petitions to the jury at the adjudication trial and allowed the jury to have copies of the petitions during their deliberations. However, MCR 3.972 governs trials under the juvenile protection code and MCR 3.972(B)(2) specifically directs that at the trial "[t]he court shall read the allegations in the petition unless waived." Respondent-mother did not waive a reading of the petitions, so the trial court was required by MCR 3.972(B)(2) to read the allegations in the petition, which it did. And, as discussed above, the trial court instructed the jury at the end of the trial that the petitions were not evidence. The jury was presumed to follow its instructions. Ykimoff, 285 Mich App at 109. Also, like respondent-father, respondent-mother approved of the trial court's course of action, so any error in that regard has been waived. See In re Dorsey, 306 Mich App at 590.
Respondent-mother also argues that she was denied a fair trial because of statements petitioner made during opening statements about the previous voluntary termination of respondent-mother's parental rights. She asserts that petitioner improperly accused her of deception and lying. In this case, the theories that petitioner sought to use in order to allow the trial court to obtain jurisdiction were based on the statutory grounds as well as anticipatory neglect. The doctrine of anticipatory neglect provides that how a parent treats one child is probative of how that parent may treat other children. In re LaFrance Minors, 306 Mich App 713, 730; 858 NW2d 143 (2014). Thus, petitioner needed to show how respondent-mother was negligent or abusive when caring for her other children. In its opening statement, petitioner informed the jury of the facts that it would use to prove its theories. It is axiomatic that, during opening statements, petitioner may set forth its theory of the case and preview the facts that it expects to prove at trial. Moreover, during jury instructions at the end of the case, the trial court instructed the jury that the lawyer's statements, arguments, and questions were not evidence. On this record, respondent-mother has not demonstrated that she was denied a fair trial by the petitioner's opening statement.
Respondent-mother also argues that she was denied a fair trial because the trial court instructed the jury on the statutory grounds for assuming jurisdiction, as well as under the doctrine of anticipatory neglect, when there was allegedly no evidence of abuse or neglect. "Instructional error warrants reversal if it resulted in such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be inconsistent with substantial justice." Ward v Consolidated Rail Corp, 472 Mich 77, 84; 693 NW2d 366 (2005). The verdict in an adjudication trial "must be whether one or more of the statutory grounds for jurisdiction has been proven." MCR 3.972(E). In order for the jury to return a verdict in favor of the petitioner, the jury necessarily must be instructed on what the statutory grounds are. The trial court, therefore, properly instructed the jury as to the statutory grounds for assuming jurisdiction. And to the extent that respondent-mother claims she was denied a fair trial by the trial court instructing the jury on anticipatory neglect, she approved of the action at trial. Once again, because respondent-mother approved of the trial court's course of action, she waived any error arising from that action. See In re Dorsey, 306 Mich App at 590.
III. STATUTORY GROUNDS FOR TERMINATION
A. STANDARD OF REVIEW
Petitioner sought termination of respondents' parental rights under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). In order to terminate parental rights, the trial court must find that at least one of the statutory grounds for termination has been met by clear and convincing evidence. In re VanDalen, 293 Mich App at 139. We review for clear error the trial court's finding of grounds for termination. Id. "A finding is 'clearly erroneous' if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made." In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
B. ANALYSIS
With regard to GB and EB, the trial court did not specifically or clearly state on the record under which statutory ground it found termination was proper. However, based on the language used, it appears that the trial court relied on MCL 712A.19b(3)(c)(i) or (c)(ii). Termination is proper under MCL 712A.19b(3)(c) if:
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:In this case, as it relates to both GB and EB, the initial dispositional order was the termination order. Therefore, it is impossible for 182 days or more to have elapsed between the issuance of the initial dispositional order and the termination hearing. In fact, there was less than 30 days between the court taking jurisdiction over the children and the court terminating respondents' parental rights to the children. It is also worth noting that, with regard to EB, less than 182 days had elapsed between the date of his birth and the termination hearing. On this record, therefore, the trial court's finding of statutory grounds to terminate respondents' parental rights under MCL 712A.19b(3)(c)(i) or (c)(ii) was wholly without factual support.
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
MCL 712A.19b(3)(c) mandates that at least 182 days elapse between the initial dispositional order and the termination of parental rights. An order terminating parental rights at the initial disposition will always be the initial dispositional order contemplated by MCL 712A.19b(3)(c). Therefore, exactly zero days will have elapsed. Termination under MCL 712A.19b(3)(c) is, accordingly, never proper at the initial dispositional order. Consequently, we are perplexed that petitioner requested termination of respondents' parental rights at the initial disposition and relied upon MCL 712A.19b(3)(c) as a basis for termination. Such a decision demonstrates either an inexcusable lack of attention to the facts of this file or a woeful understanding of the law. It is worth reminding petitioner of the significant impact such carelessness can have on the health and welfare of the children involved.
With regard to EB, the trial court appears to have additionally relied on MCL 712A.19b(3)(g), which allows for termination of parental rights when "[t]he parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age." This subdivision was amended by 2018 PA 58, effective June 12, 2018. The pre-amendment language stated: "The parent, without regard to intent, fails to provide proper care or custody for the child . . . ." (Emphasis added). The termination proceeding in this case took place on November 19, 2019. Therefore, subsection (g) should have been analyzed under the amended language.
The trial court, however, relied upon the pre-amendment language, stating that "[a]t the time of the termination petition filed in this case, which was August 26, 2019, MCL 712A.19b(3)(g) indicates that [the parents] without regard to intent failed to provide proper care and custody for the child and there is no reasonable expectation that they will be able to provide care and custody with any reasonable time considering the age of the child." (Emphasis added). Because the court used the pre-amendment version of the statute, it made no finding that respondents, although financially able to do so, had failed to provide proper care or custody for their children and that there was no reasonable expectation that they would be able to do so within a reasonable time considering the child's age. Moreover, the error in applying the wrong version of the statute was not harmless because the evidence did not demonstrate that the respondents had the financial ability to care for their children. Instead, as noted by the trial court in its ruling, respondents lacked income, which the court reasoned "does not put them in a position to take care of their children, let alone children with special needs." As a result, termination of respondents' parental rights was not warranted under the version of MCL 712A.19b(3)(g) in effect at the time of the termination hearing.
We note that, although petitioner sought termination of respondents' parental rights under MCL 712A.19b(3)(j), there is nothing in the court's ruling suggesting that it terminated respondents' parental rights on this statutory basis.
The trial court's opinion was not a model of clarity or thoroughness. In future proceedings, the trial court should take care to indicate which statutory grounds it is terminating a parent's parental rights under and make sure that all requirements of that statutory ground are established by clear and convincing evidence. Likewise, the court should ensure that, when taking the drastic step of permanently terminating a parent's parental rights, it applies the correct legal framework.
Given our resolution, we decline to address respondent-mother's arguments relating to the court's best interest findings and to petitioner's failure to provide her with reasonable services aimed at reunification. --------
In Docket No. 351933, we affirm the trial court order taking jurisdiction over GB and EB, but vacate the order terminating respondent-father's parental rights to GB and EB, and we remand for further proceedings. In Docket No. 352547, we affirm the trial court order taking jurisdiction over GB and EB, but vacate the order terminating respondent-mother's parental rights to GB and EB, and we remand for further proceedings. We do not retain jurisdiction in either case.
/s/ Michael F. Gadola
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly