Opinion
No. 347050
07-23-2019
In re MERRIMAN, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Hillsdale Circuit Court Family Division
LC No. 16-000479-NA Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ. PER CURIAM.
Respondent-father appeals the circuit court's order terminating his parental rights to three minor children under MCL 712A.19b(3)(c)(i) (conditions at adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (likelihood that children will be harmed if returned to the parent). For the reasons stated in this opinion, we affirm.
The children were originally removed from their mother's care in July 2016 on the basis of serious allegations of improper supervision, drug use, and domestic violence. Respondent was in jail when the children were removed, and he was later sentenced to 18 months' imprisonment for a third-offense driving while under the influence conviction. Respondent participated in some available services in prison and was released in February 2018 after serving his sentence.
On May 18, 2018, the circuit court terminated the mother's parental rights pursuant to MCL 712A.19b(3)(c)(i), (j), and (n)(i) (parent convicted of an enumerated felony). However, the judge declined to terminate respondent's parental rights at that time in order to provide him with additional time to comply with services as he was no longer in prison. Unfortunately, respondent—who was often combative with the service providers, his counsel, and the court—refused to comply with the treatment plan. The circuit court ultimately terminated his parental rights at the conclusion of a second termination hearing on December 20, 2018. This appeal followed.
As of June 12, 2018, MCL 712A.19b(3)(n) is now designated as MCL 712A.19b(3)(m). See 2018 PA 58.
Respondent first argues that the circuit court plainly erred in allowing Megan Stiverson to preside over two review hearings as referee because she represented petitioner, the Department of Health and Human Resources (DHHS), as an assistant prosecutor earlier in the case. Because respondent cannot demonstrate prejudice from this alleged unpreserved error, we find no grounds for reversal.
Respondent did not move to disqualify Stiverson because of her prior involvement in this case. Therefore, this issue is unpreserved. See In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). We review unpreserved issues for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Id. at 9.
MCR 2.003(C)(1)(d) provides that disqualification of a judge is warranted when the "judge has been consulted or employed as an attorney in the matter in controversy." In this case, Stiverson represented the DHHS at the August 9 and August 15, 2016 preliminary hearings, the September 20, 2016 bench trial, the January 5, 2017 review hearing, and the June 15, 2017 review hearing. A year later, Stiverson presided over respondent's June 14 and September 13, 2018 review hearings as a referee.
Whether or not it was improper for Referee Stiverson to preside over two review hearings in this case, respondent cannot show that it made a difference in the outcome of the proceedings. The judge, not the referee, presided at both termination hearings, heard the relevant testimony and was the decision-maker regarding respondent's parental rights. Moreover, the judge afforded respondent additional time to comply with the treatment plan rather than terminate his rights at the first of the two hearings. Further, respondent does not challenge the statutory grounds for termination on appeal. As such, we may presume that the circuit court did not clearly err in finding that the unchallenged statutory grounds were established by clear and convincing evidence. In re JS and SM, 231 Mich App 92, 98-99; 505 NW2d 326 (1998), overruled in part on other grounds by In re Trejo Minors, 462 Mich 341, 353; 612 NW2d 407 (2000). Even if we do not rely on such a presumption, we conclude that termination of respondent's parental rights was warranted. His rights were terminated pursuant to MCL 712A.19b(3)(c)(i), (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:
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(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:
(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.
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(g) The 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.
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(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.
MCL 712A.19b(3)(g) was amended, effective June 12, 2018. See 2018 PA 58. The previous version provided: "The parent, without regard to intent, 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." The circuit court referred to the previous version of the statute in its ruling. As a result, the trial court erred in not considering the current version of the statute. However, respondent does not argue on appeal that the trial court erred in concluding that there were statutory grounds supporting termination of his parental rights. Additionally, the circuit court also found that termination was supported by MCL 712A.19b(3)(c)(i) and (j) and only statutory ground for termination is needed. See In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009). Therefore, we will not address this issue further. --------
The children were initially removed from the mother's care on the basis of allegations against her. However, respondent was in jail when the children were removed, and he was later sentenced to 18 months in prison. Therefore, he was unable to properly care for the children at the beginning of the case. At the time of the second termination hearing—more than two years after the dispositional order—respondent was in jail again. He had not provided verification of employment, he had screened positive for drugs several times after his release from prison, and he failed to participate in the treatment plan in any meaningful way. As the circuit court stated at the conclusion of the termination hearing, respondent was in no better position to care for the children than he was in July 2016. Considering that respondent could not provide proper care for his children after more than two years, the circuit court did not clearly err in finding that termination was supported by MCL 712A.19b(3)(c)(i), (g), and (j). See In re Williams, 286 Mich App 253, 272; 779 NW2d 286 (2009) (affirming termination under MCL 712A.19b(3)(c)(i) when the respondent parent had "not accomplished any meaningful change in the conditions existing by the time of the adjudication"). See also In re White, 303 Mich App 701, 710-711; 846 NW2d 61 (2014) (stating that "[a] parent's failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody" and "that the child will be harmed if returned to the parent's home"). Accordingly, respondent cannot establish that Referee Stiverson presiding over two review hearings in this case constituted plain error affecting his substantial rights. See In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008).
Next, respondent contends that his due-process rights were violated when the circuit court suspended his parenting time without allowing him to question the children's therapist, who recommended the suspension. Again, defendant fails to demonstrate plain error and prejudice with respect to this unpreserved issue.
The circuit court's dispositional order stated that the DHHS had the discretion to allow unsupervised or supervised parenting time to respondent while he was incarcerated. After a few visits, the service providers working with the children raised concerns regarding some of the statements that respondent made to the children. Specifically, respondent allegedly made comments regarding his oldest daughter's weight and told the children that he could not call them more because the foster parents would not pay for the calls. Respondent also told his oldest daughter not to trust the service providers. At the next review hearing, the circuit court asked respondent, "What are you saying to this child, sir?" Respondent admitted making comments critical of the "agency" to his daughter. The court then asked the caseworker to obtain an opinion from the children's therapists to determine whether the children should continue having visits with respondent. The oldest daughter's therapist, who supervised the younger children's therapists, authored a letter opining that respondent should no longer have visitations because they were detrimental to the children's progress in therapy. As a result of the opinions stated in the letter, the court entered an ex parte order suspending respondent's visitations.
Respondent, acting in pro per, filed several motions in response to the order, which were considered at the next review hearing. Respondent asserted in one of his motions that statements attributed to the children in the therapist's recommendation were "coerced" or "manufactured." But at no point did he request to question the therapist, who was present for the hearing by phone. The court denied respondent's motions and explained to him that it relied on the therapist's opinion to find that there was a risk of harm to the children considering their conduct following visits. See MCL 712A.18(1)(n) (providing that "[i]f the court determines that parenting time, even if supervised, may be harmful to the juvenile's life, physical health, or mental well-being, the court may suspend parenting time until the risk of harm no longer exists. The court may order the juvenile to have a psychological evaluation or counseling, or both, to determine the appropriateness and the conditions of parenting time.").
It is clear to us that respondent had the opportunity to respond to the therapist's recommendation and to the allegations that he was making harmful statements to the children. Despite respondent's arguments, the court declined to reconsider the ex parte order, finding that parenting time with respondent poised a risk of harm to the children. Respondent does not argue that this finding was clearly erroneous, nor does he explain how questioning the therapist under oath would have led the court to a different outcome. Accordingly, respondent fails to establish prejudice from this alleged error.
Affirmed.
/s/ David H. Sawyer
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro