Opinion
No. 339919
03-20-2018
In re B. E. WRIGHT, Minor.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 16-521759-NA Before: M. J. KELLY, P.J., and JANSEN and METER, JJ. PER CURIAM.
Respondent appeals by right the trial court order terminating her parental rights to the minor child under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g) (parent failed to provide proper care or custody), and (j) (child will be at risk of harm if returned to parent's care). We affirm.
I. SUBJECT-MATTER JURISDICTION
A. STANDARD OF REVIEW
Respondent first argues that the trial court lacked subject-matter jurisdiction because it failed to properly authorize the petition at the preliminary hearing. We review de novo a challenge to a court's subject-matter jurisdiction. Harris v Vernier, 242 Mich App 306, 309; 617 NW2d 764 (2000).
B. ANALYSIS
Respondent argues that the trial court authorized the petition based solely on the waiver of probable cause offered by the father to her older child. We disagree.
Respondent has two children: MP and BW. In the present appeal, respondent only appeals the termination of her parental rights to BW, her younger child.
"A preliminary hearing is the formal review of the petition when the judge or referee considers authorizing the petition and placing the case on the formal calendar." In re Hatcher, 443 Mich 426, 434; 505 NW2d 834 (1993). MCR 3.965(12) provides that the trial court "may authorize the filing of the petition upon a showing of probable cause, unless waived, that one or more of the allegations in the petition are true and fall within MCL 712.2(b)." Here, the preliminary hearing was held in January 2016. Respondent was not present, although she had notice of the hearing. At the hearing, the court placed the caseworker under oath and took testimony from her. The caseworker testified that respondent "drinks heavily," admitted to drinking, that the child was found wandering outside the home at 9:30 at night when he was four years of age, and that respondent's substance abuse was impairing her ability to appropriately parent. The court then ascertained whether the parties were waiving the reading of the petition and a finding of probable cause. All parties present indicated that they were doing so. Subsequently, in its written order, the court stated that (1) probable cause was waived "by all parties present," and that "[t]here is probable cause that one or more allegations in the petition are true." "[I]t is axiomatic that a court speaks through its orders." People v Kennedy, 384 Mich 339, 343; 183 NW2d 297 (1971). Thus, on this record, it appears that the court independently found probable cause to authorize the petition with respect to respondent, notwithstanding its indications on the record that it was basing authorization of the petition on the waiver of probable cause.
Moreover, even if the court erroneously relied upon the waiver of probable cause by the parties present, the court's exercise of jurisdiction based upon that error is not subject to a collateral attack. Challenges to a court's subject-matter jurisdiction may be raised at any time. In re Hatcher, 443 Mich at 438. If a court lacks subject-matter jurisdiction over a case, then the court's orders on that case are void ab initio. Id. However, there is a distinction between a lack of subject-matter jurisdiction and "whether the court properly exercised its discretion in applying that jurisdiction." Id. A respondent may not collaterally attack an error in the exercise of jurisdiction; he or she must instead challenge such an error on direct appeal. Id. at 439. In Hatcher, our Supreme Court held that:
a court's subject matter jurisdiction is established when the proceeding is of a class the court is authorized to adjudicate and the claim stated in the complaint is not clearly frivolous. The probate court's valid exercise of its jurisdiction is determined from the petition after the probate judge or referee has found probable cause to believe that the allegations contained within the petition are true. Our ruling today severs a party's ability to challenge a probate court decision years later in a collateral attack where a direct appeal was available. [Id. at 444 (emphasis added).]Thus, in this case, where a direct appeal from the preliminary hearing authorizing the petition and removing the child from respondent's home was available, see MCR 3.993(A)(1), we conclude that respondent may not now collaterally challenge that decision.
II. STATUTORY GROUNDS
A. STANDARD OF REVIEW
Respondent next argues that the trial court failed to establish statutory grounds to terminate her parental rights because she did not knowingly and understandingly waive her right to trial when she stipulated that she missed drug screens. She argues that petitioner relied upon the improper waiver and failed to present evidence sufficient to establish by clear and convincing evidence that there were grounds to terminate her parental rights. This Court reviews for clear error a trial court's finding of whether a statutory ground for termination has been proven by clear and convincing evidence. MCR 3.977(K); In re BZ, 264 Mich App 286, 296; 690 NW2d 505 (2004). "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." Id. at 296-297. Unpreserved issues, such as respondent's contention that the trial court relied upon an improper waiver, are reviewed for plain error. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Under the plain-error rule, a respondent must show that there is error, that the error was clear or obvious, and that the error affected his or her substantial rights, i.e., affected the outcome of the proceedings. Id.
B. ANALYSIS
The permanent custody hearing began with the testimony of foster care caseworker. Immediately after the caseworker testified regarding the elements of respondent's treatment plan, the court went off the record for a discussion with the parties. When the court went back on the record it stated that respondent was not contesting the grounds for termination of her parental rights or her noncompliance with her treatment plan. Respondent requested a best-interest hearing. Thereafter, the caseworker continued testifying. She provided details about respondent's failure to comply with her treatment plan including her missed drug screens, missed visits, inappropriate behavior at visits, continued alcohol use, use of anti-anxiety medication without a prescription, and lack of independent housing and employment.
At the conclusion of the caseworker's testimony respondent's lawyer reiterated that respondent was not contesting the fact that respondent missed drug screens. Although there was a suggestion that respondent was open to waiving the permanent custody hearing, the court never took admissions from respondent or relied on these admissions. Rather, the court heard testimony from the caseworker who provided sufficient support to justify the court's finding of clear and convincing evidence to terminate respondent's parental rights. The court was not obligated to ascertain whether respondent's admissions were made knowingly because, although respondent indicated she would, she never made any admissions.
Moreover, even if the trial court had relied on the statement of respondent's lawyer when she indicated that respondent was not contesting that she missed drug screens, there would not have been any error under MCR 3.971, which only applies at the jurisdictional phase of the proceedings. See MCR 3.971(B)(4) (stating that the court must advise the respondent "of the consequences of the plea, including that the plea can later be used as evidence in a proceeding to terminate parental rights if the respondent is a parent"). And, even if MCR 3.971(B)(4) applied to a supplemental petition to terminate parental rights, the failure to comply with this rule would not warrant reversal under the circumstances presented. MCR 3.902(A), which is applicable in juvenile code proceedings, provides that "[l]imitations on corrections of error are governed by MCR 2.613." MCR 2.613(A) provides that "an error or defect in anything done or omitted by the court . . . is not ground for . . . vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice." See generally In re Utrera, 281 Mich App 1, 13-14; 761 NW2d 253 (2008) (applying MCR 3.902(A) and MCR 2.613(A) to procedural defects in child protective proceedings and finding that there was no need to set aside a termination order). Finally, respondent does not state that the court's failure to comply with MCR 3.971(B)(4) impacted her decision to admit that she missed a significant number of drug screens, a fact which was already part of the trial court's record. There is no claim or argument whatsoever that had the court informed respondent consistently with MCR 3.971(B)(4), respondent would have contested the allegation that she missed drug screens. Thus, there was no plain error affecting respondent's substantial rights because the information was already part of the record and not the sole evidence relied on by the court in terminating respondent's parental rights. See Carines, 460 Mich at 763.
Finally, irrespective of respondent's stipulation/admission that she had missed drug screens and was not contesting statutory grounds, there was sufficient evidence to find termination of her parental rights was proper under MCL 712A.19b(3)(c)(i). MCL 712A.19b(3)(c)(i) provides termination is proper 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:The record reflects that at the time of adjudication respondent had an alcohol addiction that interfered with her ability to properly care for the minor child and that continued to be an issue at the time of the permanent custody hearing. Respondent's alcohol use put the child at risk of harm, and respondent never demonstrated that she had addressed her alcohol problem. Instead, she missed 56 of 80 drug screens prior to the filing of the petition and only submitted nine of 20 requested drug screens after the termination petition was filed. The record showed that respondent was taking Xanax without a prescription and was intoxicated at visits as recently as May 2017. She was more focused on discussing her case with the caseworkers and therapists when she did attend visits than spending time with her child. Therefore, we conclude the trial court did not err by terminating respondent's parental rights to the child under MCL 712A.19b(3)(c)(i). Because only one ground for termination need be established, we decline to consider whether termination was proper under MCL 712A.19b(3)(g) and (j). See In re Moss Minors, 301 Mich App 76, 90; 836 NW2d 182 (2013).
(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.
Respondent does not challenge the trial court's best-interest determination on appeal. As such, we decline to address it. --------
Affirmed.
/s/ Michael J. Kelly
/s/ Kathleen Jansen
/s/ Patrick M. Meter