Opinion
No. 353207
02-11-2021
In re T. M. LEE, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Cass Circuit Court Family Division
LC No. 20-000398-NA Before: BECKERING, P.J., and SAWYER and SHAPIRO, JJ. PER CURIAM.
Respondent appeals as of right from the trial court's order terminating her parental rights to the minor child under MCL 712A.19b(3)(c)(i) (failure to rectify conditions of adjudication) and (j) (reasonable likelihood that child will be harmed if returned to parent). Respondent does not challenge the trial court's findings regarding statutory grounds or best interests; rather, she contends the trial court failed to adequately determine whether she received notice of the preliminary hearing and to make findings of fact sufficient to exercise jurisdiction. For the reasons discussed in this opinion, we affirm.
As used here, "respondent" refers to the child's mother. Both parents were involved in these child protective proceedings, but the father voluntarily released his rights and is not part of this appeal.
I. PERTINENT FACTS AND PROCEEDINGS
The Department of Health and Human Services (DHHS or "petitioner") filed a petition requesting removal of the child from respondent's home on June 20, 2018. According to the petition, DHHS contacted respondent on May 25, 2018, during which contact respondent stated that DHHS was abusing its authority; that she and her family were " 'starving' " and DHHS did nothing about it; that police would not arrest her despite a felony warrant in Washington; that she was " 'sexually' " assaulted by a Marine's wife 20 years prior, but Hillary Clinton covered it up; that she had a legal guardian who took everything she owned; and that she had "classified information and relatives in the US and Chinese governments." Respondent also accused DHHS of violating the "Whistle Blower Act," said she did not have access to medication, and possibly had "a broken foot, broken back, lupus, pulmonary fibrosis, asbestosis, birth defects, hearing impaired and a head injury." Respondent declined to go to the hospital because she felt unsafe, and also declined a psychological evaluation because she did not trust DHHS. Finally, respondent said she was " 'permanently incapacitated as a Military dependent" and refused to allow DHHS to interview the minor child unless they were "safe at a military hospital." At a follow-up visit on June 11, 2018, respondent admitted that she was struggling with mental health issues and agreed to submit to a psychological evaluation and to work with DHHS to get the help she needs.
On June 19, 2018, DHHS received an e-mail from respondent, attached to which was a YouTube video of respondent "stating that DHHS is 'violating her Victim Rights Acts.' " Respondent also stated that DHHS was " 'stealing kids and old people and that this is an act of war.' " There existed other YouTube videos of respondent displaying erratic behavior, such as a video of respondent smoking marijuana "while waving a marijuana flag and yelling 'God Bless you' to cars passing the home." DHHS asserted that it was unknown who cared for the child while these videos were being made.
Respondent's comment about "stealing kids and old people" likely refers to the prior termination of her parental rights to two other children, as well as to an incident eight days earlier, when respondent's caseworker and an Adult Protective Services (APS) worker made an unannounced visit to respondent's home, and found respondent's uncle, who was in respondent's care, unresponsive and lying on a bed wearing only a diaper. Respondent had called DHHS Central Intake and said that her uncle needed medical help. She told her caseworker and the APS worker that he had not taken any food or drink in a few days. The APS worker called for an ambulance, and the uncle was taken to a hospital. The record indicates that he later died.
In its petition for removal, DHHS alleged that respondent neglected to provide proper or necessary care for child, who was approximately three-years old, and that the home or environment was an unfit place for the child to live. Specifically, DHHS alleged that respondent struggled to feed the child; that respondent had a head injury; that she suffered from amnesia; that she presented as erratic, paranoid, and agitated when the child was present; and that respondent lacked the mental stability to care for the child. A preliminary hearing was scheduled, but respondent did not appear. The trial court asked respondent's DHHS caseworker, Kendra Kutz, whether respondent received notice. Kutz confirmed that notice was provided and that respondent simply declined to attend. After receiving testimony from Kutz, the trial court ordered the child's removal on the basis that the child would face a substantial risk of harm if returned to respondent's care. Two months later, the trial court scheduled an adjudication hearing to determine whether it could exercise jurisdiction over the child. Again, respondent did not appear. The trial court received testimony and, thereafter, exercised jurisdiction on the basis that respondent neglected the child. Ultimately, the trial court terminated respondent's parental rights, and this appeal followed.
II. NOTICE
Respondent first argues that her right to due process was violated because the trial court failed to adequately determine whether she received notice of the preliminary hearing. The record indicates otherwise.
"Generally, whether child protective proceedings complied with a respondent's substantive and procedural due process rights is a question of law that this Court reviews de novo." In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). However, because respondent failed to preserve this issue by raising it in the trial court, our review is for plain error affecting substantial rights. In re Williams, 286 Mich App 253, 274; 779 NW2d 286 (2009). "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." In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011) (quotation marks and citations omitted).
The opportunity to be heard at a meaningful time and in a meaningful manner is a fundamental requirement of due process. In re Rood, 483 Mich 73, 92; 763 NW2d 587 (2009) (quotation marks and citations omitted).
The "opportunity to be heard" includes the right to notice of that opportunity. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." [Id., quoting Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950)].
The procedures to be followed at preliminary hearings are stated in MCR 3.965. Regarding notice, MCR 3.965(B)(1) provides:
The court must determine if the parent, guardian, or legal custodian has been notified, and if the lawyer-guardian ad litem for the child is present. The preliminary hearing may be adjourned for the purpose of securing the appearance of an attorney, parent, guardian, or legal custodian or may be conducted in the absence of the parent, guardian, or legal custodian if notice has been given or if the court finds that a reasonable attempt to give notice was made.
At the preliminary hearing in the present case, the trial court concluded that respondent had been notified of the hearing after this colloquy with respondent's DHHS caseworker, Kutz:
Q. Also present is Ms. McCree, and she is appointed as the Guardian Ad Litem for the child. I do need to go over some preliminary things with the father before we get started. Well, actually, I wanted to ask first—Ms. Kutz were you able to tell the mother about today's hearing?
A. Yes.
Q. Okay, did she indicate whether or not she was planning on attending?
A. She said she was not.
Kutz's response demonstrated to the court's satisfaction that respondent had received notice of the preliminary hearing. On appeal, respondent does not argue that she did not receive notice. Rather, she asserts that the trial court failed to make findings regarding whether a reasonable attempt to give notice was made. However, such findings are unnecessary where, as here, a trial court determines that notice had in fact been given. Once the court determined to its satisfaction that notice had been given, it could proceed with the preliminary hearing, even in respondent's absence. See MCR 3.965(B)(1) (stating that the preliminary hearing may proceed in the absence of a parent "if notice has been given or if the court finds that a reasonable attempt to give notice was made").
Respondent admitted at the termination trial that she knew about the preliminary hearing.
Respondent observes that Kutz was not under oath when she told the court that she had notified respondent of the preliminary hearing, and suggests that the court should have viewed with skepticism Kutz's report that respondent said she was not going to attend and should have asked additional questions. To the extent that the trial court deemed Kutz's report credible, no further questions were necessary. Moreover, Kutz's observation that respondent said she was not going to attend the preliminary hearing was consistent Kutz's sworn testimony, offered later in the hearing, that respondent did not trust petitioner or the courts and had refused to cooperate with petitioner. In sum, the record reflects that respondent received notice of the preliminary hearing, and the trial court did not err by so finding and by proceeding with the preliminary hearing.
The court also adjourned the preliminary hearing to allow time to appoint legal representation for respondent. Respondent's attorney attended the continuation of the preliminary hearing, but respondent did not. Respondent raises no concerns on appeal regarding notice of the hearing's adjournment and continuation at a later date.
III. JURISDICTION
Respondent next argues that the trial court's factual findings of neglect were inadequate to support exercising jurisdiction over the child and respondent.
[A]djudication errors raised after the trial court has terminated parental rights are reviewed for plain error. The respondents must establish that (1) error occurred; (2) the error was "plain," i.e., clear or obvious; and (3) the plain error affected their substantial rights. And the error must have "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings[] . . . ." [In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019) (citations omitted; alterations and ellipsis in original), quoting People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).]
Child protective proceedings consist of two phases: the adjudicative phase and the dispositional phase. In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014).
When the petition contains allegations of abuse or neglect against a parent, MCL 712A.2(b)(1), and those allegations are proved by a plea or at the trial, the adjudicated parent is unfit. While the adjudicative phase is only the first step in child protective proceedings, it is of critical importance because [t]he procedures used in adjudicative hearings protect the parents from the risk of erroneous deprivation of their parental rights. [Id. at 405-406 (quotation marks and citation omitted).]"The question at adjudication is whether the trial court can exercise jurisdiction over the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders, including an order terminating parental rights." In re Ferranti, 504 Mich at 15. "The adjudication divests the parent of her constitutional right to parent her child and gives the state that authority instead." Id. at 16. "Jurisdiction must be established by a preponderance of the evidence." In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004).
A court may exercise jurisdiction over a minor child "[w]hose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in." MCL 712A.2(b)(2). "Neglect," for purposes of this statute, is defined as:
harm to a child's health or welfare by a person responsible for the child's health or welfare that occurs through negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care, though financially able to do so, or the failure to seek financial or other reasonable means to provide adequate food, clothing, shelter, or medical care. [MCL 722.602(1)(d).]
In the present case, the adjudication occurred over two days. The first day was a settlement conference, at which the trial court took testimony that it would later rely on when making its factual findings regarding jurisdiction. The minor child's father appeared at the conference and admitted to allegations in the petition, and the court exercised jurisdiction over the child with respect to the father. Subsequently, the court took testimony from DHHS caseworker Kutz. Among other things, Kutz testified that respondent had applied for food assistance and other assistance, but had been denied because her paperwork was not in order. Kutz said that she visited the home, and determined that there was a minimum amount of food in the house at the time, but said that respondent would not admit anyone from DHHS into the home thereafter. Kutz further testified that respondent requested medical attention for her and the child, but refused to go to the hospital because she was paranoid someone would harm her. She also provided examples of assertions and behavior that led her to believe that respondent may have serious mental health issues. Kutz said that these circumstances and the status of respondent's mental health raised concerns about respondent's ability to care for the child, provide food for the child, or get the child to necessary medical appointments. Respondent did not appear at the settlement conference. Respondent's adjudication bench trial was to have occurred on the second day, but when respondent did not appear, the court entered its findings of fact and conclusions of law and exercised jurisdiction over the minor as to respondent.
Regarding respondent, the court found that the petition portrayed "what, in fact, is occurring here." The court observed that respondent appeared to have serious, undiagnosed mental health issues, as evidenced by her reported statements that a marine's wife sexually abused her 20 years prior, but Hillary Clinton had covered it up, that she had classified relatives in the United States and Chinese governments, and that she was a military dependent. As further evidence, the court also referenced several videos respondent had made and uploaded to YouTube showing her "smoking marijuana, waiving a marijuana flag[,] and yelling God bless you to cars passing the home." The court also referred to Kutz's testimony at the settlement conference regarding respondent's mental health issues and erratic behavior. The court then concluded:
The Court can find that as a result of this short bench trial that there is - that this is an unfit home. And unfit because of the mother's mental health issues. I'm going to label them as neglect. Clearly, there's a substantial risk of harm to the mental well-being of the - the child. And therefore, I do find that the Court should take jurisdiction of this child as it relates to the mother . . . .Thus, the trial court concluded that respondent's mental status created an unfit environment for the child because of respondent's neglect.
Respondent implies that expert testimony was required before the court could conclude that respondent had serious mental health issues. However, respondent cites no authority supporting the necessity of expert testimony at this stage of the proceeding. Further, the trial court could reasonably conclude from petitioner's unrebutted testimonial evidence about respondent's statements and behaviors that respondent may have suffered from undiagnosed, untreated mental health issues that affected her ability to provide care and supervision for her child. A psychological evaluation performed after the court exercised jurisdiction confirmed this to be the case.
At a February 2019 hearing, foster-care worker Fabian Golota testified as follows about the results of a recent psychological evaluation:
Based on their report, their impression is that she's schizo—she has schizoaffective disorder, bi-polar type; narcissistic personality features; child neglect; adjustment disorder with anxiety. And their recommendations state that she is a poor candidate for reunification—reunification procedures because she is likely to deny and minimize problems that might—that impact—that could impact her child. She also is vulnerable to periods of paranoia, confusion and psychotic manic type episodes.
Respondent also contends that the trial court did not identify any actual harm suffered by the child from respondent's alleged neglect, and notes that, two months after the adjudication, a mental health screener found that the child did not have a severe and persistent mental illness or suffer from severe emotional disturbance and, therefore, was not eligible for mental health services. As an initial matter, we note that the fact that a mental health screening conducted four months after the child's removal did not show actual, serious harm does not necessarily mean that there was no risk of harm should the child have remained in respondent's care. Further, to the extent that respondent is suggesting either that there was no neglect, or that the child did not suffer any harm from respondent's neglect, the record suggests otherwise. Less than two weeks after the child's removal from respondent's home, a dental check up revealed that poor diet and dental hygiene had resulted in extensive dental decay that required surgery to correct. Thus, even if we were inclined to conclude that plain error occurred, we cannot say, given the actual harm the child suffered by respondent's neglect of her care, that the error "seriously affected the fairness, integrity or public reputation of judicial proceedings" In re Ferranti, 504 Mich at 29 (cleaned up).
The trial court's "brief definite, and pertinent findings," MCR 2.517(A)(2), are supported by the record. A preponderance of evidence establishes that respondent's home was an unfit environment for the child by reason of neglect, as defined under MCL 722.602(1)(d), and the trial court did not err by so finding.
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Douglas B. Shapiro