Opinion
No. 353159
10-15-2020
In re R. M. KIMMEL, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Muskegon Circuit Court Family Division
LC No. 19-000295-NA Before: MURRAY, C.J., and CAVANAGH and CAMERON, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating his parental rights to the minor child under MCL 712A.19b(3)(a)(ii) (parent deserted the child for 91 or more days), (c)(i) (conditions of adjudication continue to exist), and (j) (reasonable likelihood that child will be harmed if returned to the parent). We affirm.
The Department of Health and Human Services (DHHS) filed a petition seeking removal of the child from respondent's home. The DHHS alleged that respondent neglected or refused to provide proper care and custody of the child and that the home environment was unfit. Specifically, the DHHS alleged that the child was subject to anticipatory neglect or abuse because of actions by respondent toward another child. At the hearing on the petition, respondent was not present. A DHHS caseworker stated that she attempted to contact respondent several times to no avail. In subsequent proceedings, respondent was still not present even though the DHHS attempted to personally serve him process. The DHHS contacted the mother of the child, respondent's great aunt and uncle, and even went to his last known address. Notice of the proceedings was also published in a local newspaper. Respondent's whereabouts were simply unknown.
Because respondent could not be found, the trial court proceeded with an adjudication trial to determine whether it could exercise jurisdiction over respondent. A DHHS caseworker testified that, in Illinois, respondent was substantiated for physical abuse against a child from the mother in this case. The caseworker further stated that there were criminal charges in Illinois related to this abuse and that respondent had outstanding warrants in Illinois and Michigan. The caseworker testified that she had concerns over respondent's ability to parent the child in light of how he treated mother's other child, and respondent was unable to provide proper care and custody to the child creating a substantial risk of harm. The caseworker's concern was that respondent abused the other child and did not receive services from the DHHS equivalent in Illinois, which, if the allegations were true, the caseworker would not be "able to make sure that if he lost his temper that he wouldn't hurt this baby." The trial court found by a preponderance of the evidence that it could exercise jurisdiction over respondent.
During a later hearing, respondent's whereabouts were finally discovered; he was incarcerated in Illinois after pleading guilty to aggravated battery of a child. A termination trial was held with respondent participating via videoconference. According to respondent, he was told that his rights to the child were terminated, which prompted him to leave for Illinois shortly after the child's birth in January 2019. He made no contact with the DHHS to inquire about whether the information he received regarding his rights was correct. Instead, a review of the record indicates that respondent simply left Michigan for Illinois without telling anyone where he was going. At the end of the trial, the trial court terminated respondent's parental rights. This appeal followed.
Respondent argues that the trial court did not properly exercise jurisdiction over him at the outset of this case, thereby voiding the trial court's order terminating his parental rights. We disagree. "Whether a trial court has personal jurisdiction over a party is a question of law that this Court reviews de novo." In re SZ, 262 Mich App 560, 564; 686 NW2d 520 (2004).
"After a probate court determines that a petition should be authorized, a parent not having custody of a child must be served with notice of the petition and the time and place of an adjudicative hearing regarding the petition." In re Mayfield, 198 Mich App 226, 231; 497 NW2d 578 (1993). A trial court "may issue a summons reciting briefly the substance of the petition, and requiring the person or persons who have the custody or control of the child, or with whom the child may be, to appear personally and bring the child before the court at a time and place stated[.]" MCL 712A.12. "A parent of a child who is the subject of a child protective proceeding is entitled to personal service of a summons and notice of proceedings. However, in cases in which personal service is impracticable, substituted service is permissible. Substituted service is sufficient to confer jurisdiction on the court." In re SZ, 262 Mich App at 564-565 (citations omitted). MCL 712A.13 provides in relevant part:
if the judge is satisfied that it is impracticable to serve personally such summons or the notice provided for in the preceding section, he may order service by registered mail addressed to their last known addresses, or by publication thereof, or both, as he may direct. It shall be sufficient to confer jurisdiction if (1) personal service is effected at least 72 hours before the date of hearing; (2) registered mail is mailed at least 5 days before the date of hearing if within the state or 14 days if outside of the state; (3) publication is made once in some newspaper printed and circulated in the county in which said court is located at least 1 week before the time fixed in the summons or notice for the hearing.
In this case, respondent conceded that the DHHS complied with MCL 712A.13. The DHHS attempted personal service on respondent to no avail. After multiple attempts to personally serve respondent, the trial court determined that publication of the hearing was appropriate. There was notice published in a local newspaper to inform respondent that a hearing would be conducted concerning his parental rights to the child. Still, respondent did not attend. As detailed by respondent's own testimony, he left Michigan to return to Illinois soon after the child's birth. There is no evidence to suggest that respondent contacted anyone to inform them of his whereabouts. Therefore, the DHHS only had his last known address in Michigan. After several attempts to serve respondent at his last known address, while also contacting respondent's great aunt and uncle to discern his whereabouts, the DHHS published the notice two weeks before the adjudicative hearing. Because publication constituted substituted service under MCL 712A.13, and such service is sufficient to confer jurisdiction on the court, the trial court did not err by exercising jurisdiction over respondent. See In re SZ, 262 Mich App at 564-565.
See In re Mayfield, 198 Mich App at 232 ("Personal service on respondent was not possible because he had fled that state and his whereabouts was unknown."). --------
Respondent argues that, while the DHHS technically complied with MCL 712A.13, the proposed method of service was not reasonably calculated to give actual notice because the DHHS merely posted notice once "in a White Lake Paper, not considering whether Respondent-appellant even lived in the area at that point." But under MCL 712A.13, the DHHS was only required to publish once. That sole publication was sufficient to confer jurisdiction on the trial court. Notably, notice was published before respondent's whereabouts were known, meaning that the DHHS published in the county where respondent's last known address was located. The DHHS attempted to comply with MCL 712A.12 by visiting respondent's last known address, contacting him via the telephone number the DHHS had listed, and talking to mother and respondent's great aunt and uncle. However, nobody knew where respondent had fled. The record reflects personal service on respondent was impracticable because his whereabouts were unknown, multiple attempts to personally serve him were undertaken, and it appeared that he tried avoiding service when he ran from police. See In re SZ, 262 Mich App at 570. Therefore, substituted service was the only means in which to attempt to serve respondent and publication one time is all that MCL 712A.13 requires.
Respondent's next argument appears to be that the trial court could not exercise jurisdiction because it relied on inadmissible evidence when it found by a preponderance of evidence that a statutory ground existed to exercise jurisdiction.
"In Michigan, child protective proceedings comprise two phases: the adjudicative phase and the dispositional phase. Generally, during the first phase, a court determines whether it can take jurisdiction over the child." In re Collier, 314 Mich App 558, 567; 887 NW2d 431 (2016) (quotation marks and citation omitted). "Unlike at the dispositional phase of protective proceedings, the rules of evidence apply to adjudication hearings." Id. at 573. "Jurisdiction must be established by a preponderance of the evidence." In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). A respondent may admit to the allegations contained in the petition, plead no contest to the allegations, or demand a trial (i.e., an adjudication) to contest the merits of the petition. In re Sanders, 495 Mich 394, 405; 852 NW2d 524 (2014). "If a trial is held, the respondent is entitled to a jury, the rules of evidence generally apply, and the petitioner has the burden of proving by a preponderance of the evidence one or more of the statutory grounds for jurisdiction alleged in the petition." Id. (citations omitted). Because "due process requires an adjudication of a parent's unfitness before the state can infringe the constitutionally protected parent-child relationship[, i]t is axiomatic that a default is not an adjudication of a respondent's fitness as a parent[.]" In re Collier, 314 Mich App at 569-570 (quotation marks and citation omitted).
First, respondent cites MRE 602 for the proposition that the DHHS caseworker lacked personal knowledge of what she was testifying about. MRE 602 prohibits a witness from testifying about a matter "unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Evidence sufficient to establish personal knowledge "may, but need not, consist of the witness' own testimony." MRE 602. In this case, the caseworker testified that respondent had prior involvement with Children's Protective Services (CPS) in another state, the child was born drug-positive, and that respondent had been substantiated in the prior CPS case for physical abuse against another child of mother's. The caseworker became aware of this information through her investigation after receiving a complaint that the child was born drug-positive. Therefore, through her investigation, the caseworker acquired personal knowledge as to the allegations from the prior CPS case and was allowed to testify about such allegations.
Next, respondent cites the rule against hearsay, MRE 802. However, respondent provides no statements that he believes were hearsay and should have been inadmissible. Instead, it appears that respondent simply argues that everything the caseworker testified about was hearsay. "An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give issues cursory treatment with little or no citation of supporting authority." Houghton ex rel Johnson v Keller, 256 Mich App 336, 339; 662 NW2d 854 (2003) (citations omitted). Therefore, this issue is abandoned. See Yee v Shiawassee Co Bd of Comm'rs, 251 Mich App 379, 406; 651 NW2d 756 (2002) ("[W]here a party fails to brief the merits of an allegation of error, the issue is deemed abandoned by this Court.") (quotation marks and citation omitted).
Still, we do not find that everything the caseworker testified about was hearsay. Hearsay is defined as "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c). There was testimony that respondent had been substantiated for severe physical abuse toward another child of mother's, that respondent had criminal charges pending in Illinois related to that abuse, and that the child in this case was born drug-positive. The caseworker also testified that she feared respondent could not provide proper care and custody for the child because he did not address the charges in Illinois, and he did not receive services from the DHHS equivalent in Illinois. None of this testimony provided any out-of-court statement; rather, the testimony was from the caseworker's personal knowledge from her investigation of the case. This evidence provided a sufficient basis to allow the trial court to exercise jurisdiction.
Finally, respondent argues that clear and convincing evidence did not exist to terminate his parental rights under a statutory ground enumerated in MCL 712A.19b(3). "In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). This Court reviews the trial court's determination of statutory grounds for clear error. See id. "A finding of fact is clearly erroneous 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. "Appellate courts are obliged to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error." In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009). If the trial court did not clearly err by finding one statutory ground existed, then that one ground is sufficient to terminate respondent's parental rights. See In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
Termination of parental rights is appropriate under MCL 712A.19b(3)(a)(ii) when a parent fails to support a child, fails to have contact with the child, or fails to comply with a service plan for 91 days or more. In re Laster, 303 Mich App 485, 492; 845 NW2d 540 (2013). The child was born on January 4, 2019. By respondent's own testimony, he left Michigan and returned to Illinois shortly thereafter. On appeal, respondent even concedes that he did not seek custody of the child for more than 91 days because he thought his rights were already terminated. However, respondent fails to provide any legal authority that such misinformed thinking excuses abandonment of the child. Because we conclude that respondent abandoned the child when he fled to Illinois—without apprising anyone of his whereabouts for months—and did not seek custody of the child during that period, the trial court did not clearly err when it found that this statutory ground existed.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron