Opinion
No. 349400
04-02-2020
In re MARTINEZ/CRUZ, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ottawa Circuit Court Family Division
LC No. 16-082727-NA Before: MARKEY, P.J., and GLEICHER and M. J. KELLY, JJ. PER CURIAM.
Respondent appeals as of right the trial court order terminating her parental rights to her minor children under MCL 712A.19b(3)(c)(i) and MCL 712A.19b(3)(j). For the reasons stated in this opinion, we vacate the trial court's order of termination and order of adjudication, and we remand this matter to the trial court for further proceedings.
I. BASIC FACTS
Respondent's substance abuse has subjected her children to ongoing instability. In 2012, she was charged with child endangerment for driving while intoxicated with the children in her vehicle. At the time, one child was approximately 2 years old and the other was less than six months old. Both were removed from respondent's care, and respondent participated in and appeared to have benefited from the services she had been provided with. The children were, therefore, returned to her care. However, in June 2016, the Department of Health and Human Services (DHHS) submitted a petition, alleging that respondent had been driving dangerously without a license while the children were in the vehicle. A gun and drug paraphernalia were located in the vehicle. Less than one month later, respondent was arrested after she admitted to using marijuana while driving with one of the children in her vehicle. In January 2018, the DHHS filed another petition, alleging that in December 2017, respondent had tested positive for methamphetamine and amphetamines, that she had refused a drug screen in January 2018, and that she had been incarcerated for violating her felony controlled-substance probation.
On March 2, 2018, respondent entered a no-contest plea to the allegations in the petition. Prior to accepting her plea, the trial court advised her of the rights she was waiving by pleading no-contest, of the differences between a no-contest plea and a guilty plea, and of some of the consequences of her plea. Yet, it is undisputed that the court failed to advise her that one of the consequences of her of plea was that the plea could "later be used as evidence in a proceeding to terminate parental [her] rights . . . ." See MCR 3.971(B)(4). On the basis of respondent's plea, the court entered an order of adjudication and took jurisdiction over the children. Subsequently, following a termination hearing, the court entered an order terminating respondent's parental rights after finding statutory grounds to terminate her parental rights under MCL 712A.19b(3)(c)(i) and (g) and that termination of respondent's parental rights was in the children's best interests.
II. INVALID PLEA
A. STANDARD OF REVIEW
Respondent argues that her parental rights were terminated based on an invalid plea because before accepting her plea, the trial court did not properly advise her "of the consequences of her plea, including that the plea can later be used as evidence in a proceeding to terminate parental rights if the respondent is a parent." See MCR 3.971(B)(4). Respondent did not preserve this claim by timely raising it at the trial court level. Accordingly, we review her claim for plain error. See In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019) ("[A]djudication errors raised after the trial court has terminated parental rights are reviewed for plain error."). Under the plain error standard of review, "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[ ] . . . .' " Id.
B. ANALYSIS
In this case, the trial court orally and in writing advised respondent of most of what is required by MCR 3.971, but it completely failed to advise her, as required by MCR 3.971(B)(4), that her plea could "later be used as evidence in a proceeding to terminate [her] parental rights . . . ." By failing to properly advise respondent of the consequences of her plea as mandated by MCR 3.971(B)(4), the trial court committed plain error. See Ferranti, 504 Mich at 30 ("Due process and our court rules require a trial court to advise respondents-parents of the rights that they will waive by their plea and the consequences that may flow from it. The court erred by failing to advise these respondents of the consequences of their pleas and the rights they were giving up; those errors were plain."). As a result, respondent's jurisdictional plea was invalid.
On appeal, the DHHS concedes plain error occurred, but argues that respondent's substantial rights were not affected because respondent's jurisdictional plea was not used as evidence in the subsequent termination hearing. Essentially, the DHHS asserts that because legally admissible evidence was used as the evidentiary basis for the court's termination decision, respondent's substantial rights were not affected by the plain error in the jurisdictional plea-taking process. The petitioner in Ferranti raised a similar argument, contending that the plain error in that case did not deprive the respondent-parents of their substantial rights because the DHHS would have been able to prove the allegations in the petition if the case proceeded to an adjudication trial. Ferranti, 504 Mich at 30. Our Supreme Court, however, rejected that contention, explaining:
[T]he constitutional deficiencies here are not forgiven by what might have transpired at trial. The respondents' pleas were not knowingly, understandingly, and voluntarily made.Likewise, in this case, the invalid plea affected "the very framework within which" respondent's case proceeded. It was only on the basis of respondent's invalid plea—which relieved the DHHS of its burden to prove respondent's unfitness at a jury trial—that the court was able to take jurisdiction over the children. Because the framework of the proceedings was invalid, the plain error in this case affected respondent's substantial rights.
The respondents were deprived of their fundamental right to direct the care, custody, and control over JF based on those invalid pleas. And the invalid pleas relieved the Department of its burden to prove that the respondents were unfit at a jury trial, with all of its due-process protections. These constitutional deprivations affected the very framework within which respondents' case proceeded. There was error, it was plain, and it affected the respondents' substantial rights. [Id. (emphasis added).]
In addition, the plain error seriously affected the fairness, integrity, or public reputation of judicial proceedings. In Ferranti, our Supreme Court determined that the constitutional error in the jurisdictional plea-taking process seriously affect the fairness, integrity, or public reputation of judicial proceedings, reasoning:
The trial court did not advise the respondents that they were waiving any of the important rights identified in MCR 3.971(B)(3). And it failed to advise the respondents of the consequences of entering their pleas. MCR 3.971(B)(4). This failure resulted in the respondents' constitutionally defective pleas and undermined the foundation of the rest of the proceedings. The defective pleas allowed the state to interfere with and then terminate the respondents' fundamental right to parent their child. Due process requires more: either a plea hearing that comports with due process and the court rule or, if respondents choose, a trial. [Id. at 31.]Similarly, in this case, the trial court failed to advise respondent of the consequences of entering a plea. MCR 3.971(B)(4). And, although respondent was advised that she was waiving the important constitutional rights identified in MCR 3.971(B)(3), respondent was still deprived of her due-process right to either (1) "a plea hearing that comports with due process and the court rule" or (2) a trial to adjudicate her parental fitness. See Ferranti, 504 Mich at 31. Because the plea hearing in this case did not comport with due process and the court rule, and because no trial was held, respondent's defective plea permitted the state to interfere with her fundamental right to parent her child without due process, thereby undermining the foundation of all subsequent proceedings in the case. Consequently, we conclude that the plain error in this case seriously affected the fairness, integrity, or public reputation of judicial proceedings. See Ferranti, 504 Mich at 31.
In sum, the plain error in this case "gave the trial court the dispositional authority to terminate [respondent's] parental rights." Id. at 36. It affected respondent's fundamental rights, as well as the fairness, integrity, or public reputation of judicial proceedings. We therefore vacate the termination and adjudication orders, and remand to the trial court for further proceedings consistent with this opinion.
Because of our ruling with respect to the trial court's assumption of jurisdiction, we need not address respondent's remaining argument on appeal, as it is now moot. --------
Vacated and remanded. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly