Opinion
No. 351928
09-17-2020
In re A. M. G., Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2016-839013-NA Before: RIORDAN, P.J., and O'BRIEN and SWARTZLE, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court's order terminating his parental rights to his minor child, AMG, under MCL 712A.19b(3)(g). We affirm.
I. BACKGROUND
Before AMG's birth, the Department of Health and Human Services (DHHS) in Lapeer County removed respondent's other child, BG, from his care because of exposure to domestic violence and respondent's mental health. That case was still pending when AMG was born. Based on the case involving BG and concerns regarding anticipatory neglect, the DHHS removed AMG from respondent's care at birth.
When the trial court authorized the petition for temporary custody of AMG, respondent moved the trial court to adjourn the proceedings and transfer the case to Lapeer County. The trial court agreed, entering an order to transfer the case and an order adjourning the adjudication trial, noting respondent's concurrence with the order. After Lapeer County rejected the transfer, the trial court held a pretrial hearing to decide on a date for the adjudication trial. Respondent and petitioner agreed that the adjudication trial should be postponed for three months to provide an opportunity to determine respondent's success or failure in Lapeer County in the case regarding BG.
In January 2017, respondent and petitioner agreed to adjourn the trial again, this time through a written stipulation filed with the trial court, which provided for the adjournment of the adjudication trial to April 3, 2017. The trial court entered an order adjourning the trial based on that stipulation. An identical stipulation and order were signed in March 2017, moving the trial to May 25, 2017. Later, the trial was adjourned until July 27, 2017. Although the record does not contain a stipulation regarding that adjournment, respondent did not object to it. On July 27, 2017, petitioner informed the trial court that additional time was needed to amend the petition and that petitioner and respondent had discussed another adjournment. Although respondent did not agree to the adjournment on the record, he also did not object to it. Subsequently, the trial court entered orders adjourning the trial to October 19, 2017, and then to October 23, 2017, because of a trial-court scheduling issue. Again, respondent did not object to these orders.
On October 17, 2017, the parties stipulated to adjourning the trial once again, this time to December 15, 2017. This stipulated adjournment was the final one before the trial began. At the adjudication trial, respondent did not make any argument regarding alleged violations of his due-process rights caused by delays in bringing the case to trial. At the close of the first day of the adjudication trial, respondent requested that the trial court adjourn the trial for him to review and prepare to address new allegations set forth in an amended petition. The trial court entered an order based on his request, setting the continued adjudication trial for February 23, 2018. After a full day of testimony on that date, respondent moved the trial court to dismiss the petition for lack of factual support. Again, respondent did not make any argument regarding due process or delays in bringing the case to trial. Instead, after the trial court denied respondent's motion to dismiss the petition, respondent again requested the trial court to allow him more time to prepare and for a continued trial date. The trial court agreed, scheduling a final date for the adjudication trial on May 2, 2018. On that date, respondent pleaded no contest to the allegations in the petition and to the trial court's establishment of jurisdiction.
Before the trial court accepted respondent's no-contest plea, it received two days of testimony regarding respondent's parenting of both BG and AMG. Regarding BG, various witnesses agreed that she had been returned to respondent's care and that the Lapeer Court had terminated jurisdiction. The witnesses also testified, however, that respondent's issues that led to that trial court exercising jurisdiction over BG continued to occur. For example, respondent did not react in an appropriate or timely manner when BG behaved in way that could cause her harm, such as when she ran out into a parking lot. Further, since BG had been returned to respondent's care, CPS had investigated and substantiated two complaints regarding respondent and BG. When investigating those claims, the CPS worker found that respondent still was unable to ensure that BG was eating at the proper times—even with reminders on his cell phone. Further, respondent did not understand that he was not allowed to leave BG in the care of people who would let her wander around a department store without supervision. Respondent also acted in a concerning manner when he failed to ensure that he was timely changing BG's diaper, and then when he did, he was hit in the head by BG. Instead of being concerned with BG's health, respondent focused on his own health, even disparaging the CPS worker for checking in on BG's well-being, rather than respondent's, when BG was rubbing her head in apparent pain.
In addition to that evidence of respondent's treatment of BG, the trial court also accepted testimony from witnesses regarding parenting-time sessions respondent had with AMG. Those witnesses stated that respondent simply was not able to care for both children at one time, which sometimes left AMG unattended and required the parenting-time supervisor to intervene. Respondent also put AMG's health at risk by wearing his smoking jacket while interacting with her, despite repeatedly being told that she was allergic to smoke. On one occasion, the parenting-time session ended early because AMG broke out in a rash from the smoke. Respondent also regularly failed to show up to parenting-time sessions on time, check AMG's diaper in a proper manner, bring AMG appropriate snacks, and bring other supplies. He also had trouble interacting with AMG in an age-appropriate manner. These problems were particularly concerning because, even after more than one year of services in Lapeer County, respondent was still showing those same problems that he demonstrated regarding his parenting of BG.
Based on respondent's no-contest plea, as well as the evidence taken during the two-day trial, the trial court established jurisdiction over AMG. Petitioner then provided respondent with a parent-agency agreement that required him to engage in services to improve his parenting skills. Respondent had a cognitive disability, of which DHHS and the trial court were aware, resulting in various accommodations being made so that respondent could take full advantage of the services provided. Respondent also engaged in a psychological evaluation and psychiatric evaluation, resulting in recommendations that were incorporated into respondent's parent-agency agreement. After 15 months of services, DHHS informed the trial court that respondent had participated in, but had not benefited from, all of the specially tailored programs. The DHHS then filed a supplemental petition seeking permanent custody of AMG and termination of respondent's parental rights.
A few days before the termination hearing was set to begin, respondent met with his counsel and discussed entering a plea. Respondent decided to plead no contest to the existence of statutory grounds for termination and to waive his participation in a best-interests hearing. On the date set for the termination hearing, respondent was sworn-in and entered his no-contest plea and waiver of participation. Based on that plea, the trial court found clear and convincing evidence to support termination of respondent's parental rights under MCL 712A.19b(3)(g). After testimony by AMG's case worker regarding the child's best interests, the trial court found that petitioner had established that termination was appropriate. The trial court entered a written order terminating respondent's parental rights to AMG.
The trial court also terminated the parental rights of respondent-mother to AMG and of respondent-mother and an unknown father to another minor child, EMR. Because neither respondent-mother nor EMR's unknown father have appealed the trial court's termination orders, they are not parties to this appeal.
Respondent now appeals the order terminating his parental rights to AMG.
II. ANALYSIS
A. DUE-PROCESS CHALLENGE
Respondent first argues that his due-process rights were violated by the delay in holding the adjudication trial. Because respondent has waived this argument, we decline to review it.
"Waiver is the intentional relinquishment or abandonment of a known right, as distinct from a litigant's failure to timely assert that right (forfeiture)." In re Ferranti, 504 Mich 1, 33; 934 NW2d 610 (2019) (cleaned up). Furthermore, "[p]leas generally waive certain rights . . . among other things, their rights to a jury trial, to cross-examine the witnesses against them, and to force petitioner to prove grounds for jurisdiction at a trial." In re Pederson, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 349881); slip op at 9. "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Id. (cleaned up).
Respondent expressly waived all time requirements when the adjudication trial was first scheduled. Respondent then repeatedly stipulated or did not object to the adjournment of the trial date. Most importantly, respondent stipulated to the very last adjournment before the adjudication trial began, and specifically asked for continuances on the first two days of the trial. On appeal, respondent does not argue that his stipulations and waivers were not knowing, accurate, or voluntarily given. Thus, respondent has not provided this Court with any grounds to suggest that his waiver of time requirements, stipulations to almost all of the adjournments, lack of objection to any adjournment, and ultimate no-contest plea to jurisdiction should not be considered a waiver of his due-process rights regarding the delay in conducting an adjudication trial. Respondent intentionally relinquished or abandoned his right to a timely adjudication trial by repeatedly agreeing to the delay of the trial, and then, when presented with an opportunity to litigate jurisdiction, he waived the issue again by pleading no contest to the allegations in the petition. See In re Ferranti, 504 Mich at 33; In re Pederson, ___ Mich App at ___; slip op at 9.
B. STATUTORY GROUNDS FOR JURISDICTION
Respondent next argues that the trial court clearly erred in finding that the petitioner established a statutory ground for jurisdiction. This argument is also without merit.
The record contains a significant amount of testimony supporting the trial court's finding of jurisdiction under MCL 712A.2(b). "In cases with multiple children, the doctrine of anticipatory neglect may apply to confer jurisdiction." In re Kellogg, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 349930); slip op at 5. "The doctrine of anticipatory neglect recognizes that how a parent treats one child is certainly probative of how that parent may treat other children." Id. (cleaned up). "Abuse or neglect of the second child is not a prerequisite for jurisdiction of that child and application of the doctrine of anticipatory neglect." Id. (cleaned up).
Based on the detailed testimony contained in the record, as well as respondent's admission to the allegations in the petition, the trial court did not clearly err in finding that a preponderance of the evidence showed that AMG would be at a risk of harm if she was required to go home with respondent. Considering respondent's treatment of both AMG and BG, the trial court properly determined that respondent would have "neglect[ed] or refuse[d] to provide proper or necessary support" for AMG, or other care necessary for her health or morals. See MCL 712A.2(b)(1). The trial court did not clearly err in finding that improper feeding, changing of diapers, and supervision was insufficient support for AMG's health and morals. Therefore, the trial court was well-supported in finding jurisdiction based on respondent's plea and the evidence introduced through two days of an adjudication trial.
C. STATUTORY GROUNDS FOR TERMINATION
Respondent next argues that the trial court clearly erred in determining both that DHHS had provided adequate and appropriately tailored services for reunification and that there was clear and convincing evidence to terminate respondent's parental rights under MCL 712A.19b(3)(g). We conclude that respondent waived appellate review of these issues through his no-contest plea.
An argument "that reasonable services were not offered ultimately relates to the issue of sufficiency" of evidence for the establishment of statutory grounds for termination. In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005). When a respondent enters no-contest plea to the existence of statutory grounds for termination, he has waived any argument that there was insufficient evidence to satisfy the standard for proving those statutory grounds. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). Respondent may not assign as error on appeal something that he deemed proper in the trial court because allowing him to do so would permit respondent to harbor error as an appellate parachute. Id.
Respondent does not allege that his no-contest plea to the existence of statutory grounds for termination was not voluntary, accurate, and knowingly given. Indeed, respondent does not make any contention that there were any issues with his plea in any respect. Instead, respondent seeks to challenge whether DHHS provided reasonable efforts to reunify him with AMG while accommodating respondent for his cognitive disability. By pleading to statutory grounds for termination, however, respondent has effectively waived any challenge to the services he was provided. In re Hudson, 294 Mich App at 264; In re Fried, 266 Mich App at 541. Consequently, we decline address the merits of respondent's argument.
Respondent also seeks to challenge whether the DHHS provided the trial court with clear and convincing evidence to terminate his parental rights under MCL 712A.19b(3)(g). Respondent also waived appellate review of this issue. Respondent entered a no-contest plea to the supplemental petition to terminate his parental rights, including an agreement that there was adequate factual support to find a statutory ground for termination. Importantly, respondent not only pleaded to the allegations of the supplemental petition for termination, but specifically waived the trial court's need to take any additional testimony to establish statutory grounds for termination. In particular, respondent's counsel stated, "Your Honor, I've indicated to [petitioner] that we would allow the Court to accept the allegations in the petition. We don't need any testimony as the factual basis." The trial court accepted that stipulation after both petitioner and L-GAL consented on the record.
Respondent's actions in pleading to the allegations in the petition and then stipulating that these allegations satisfied the factual proof for statutory grounds for termination amounted to a waiver. Therefore, we decline to consider this issue on appeal.
D. BEST INTERESTS
Lastly, respondent argues that the trial court clearly erred by concluding that it was in AMG's best interests to terminate respondent's parental rights.
Whether petitioner established that termination of respondent's parental rights was in the best interests of the minor child is always at issue in termination cases. In this case, however, respondent waived his participation in the best-interests hearing. Therefore, respondent did not present any evidence, did not cross-examine any witnesses, and did make a closing argument regarding best interests. Thus, respondent has failed to preserve for appeal the argument that termination of his parental rights was not in the child's best interests. See In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). Contrary to petitioner's argument, this issue was not waived by respondent's decision not to participate in the best-interests hearing. Although respondent waived his right to participate in the hearing, he did not agree that termination was in AMG's best interests. Thus, this issue is not waived, but merely unpreserved.
This Court reviews for clear error a trial court's determination regarding a child's best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). "A trial court's decision is clearly erroneous if although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." In re Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d 144 (2012) (cleaned up). With regard to unpreserved claims of error arising out of child-protective proceedings, however, this Court applies the plain-error standard. In re Pederson, ___ Mich App at ___; slip op at 8. To warrant reversal under that test, 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) the plain error affected substantial rights, and 4) once a respondent satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Id.
"Once a statutory basis for termination has been shown by clear and convincing evidence, the court must determine whether termination is in the child's best interests." In re LaFrance, 306 Mich App 713, 732-733; 858 NW2d 143 (2014), citing MCL 712A.19b(5). "The focus at the best-interest stage has always been on the child, not the parent." In re Moss, 301 Mich App 76, 87; 836 NW2d 182 (2013). Best interests are determined based on the preponderance of the evidence. In re LaFrance, 306 Mich App at 733. In considering whether termination is in the best interest of a minor child, the trial court is permitted to consider: the child's bond to the parent; the parent's parenting ability; the child's need for permanency, stability, and finality; the advantages of a foster home over the parent's home; the length of time the child was in care; the likelihood that the child could be returned to her parents' home within the foreseeable future, if at all; and compliance with the case service plan. In re Payne/Pumphrey/Fortson Minors, 311 Mich App 49, 63-64; 874 NW2d 205 (2015).
In this case, the trial court did not clearly err in finding that termination of respondent's parental rights was in AMG's best interests. The case worker testified that respondent and AMG did not have a parental bond, but that AMG did have such a bond with her foster parents. The case worker noted that AMG cried on the way to parenting-time sessions, cried when the visits started, asked to leave to see her foster mom, and generally lacked a close relationship with respondent. The trial court also found that respondent could not properly parent AMG and would not be able to do so in the near future. The evidence introduced throughout the proceedings supported that conclusion. The case worker also testified that AMG's foster parents were able to properly parent AMG and had been doing so for more than three years. Moreover, the foster parents were ready and willing to adopt AMG, where she would live with her half-sister, EMR.
In addition, the trial court found that AMG needed stability and permanency, which she could not find with respondent. This conclusion has significant support in the record because respondent had been provided with years of services, specially tailored to his cognitive disability, and yet still experienced many of the same problems he did when AMG was removed from his care. In contrast, AMG's foster parents were meeting all of her needs and were prepared to adopt her. The foster parents did not raise any concerns regarding AMG's mental or physical well-being, unlike respondent, who regularly caused concern in those areas by exposing AMG to situations where she could injure herself, causing her mental anguish by calling her the wrong name, and creating stress for AMG by exposing her to a discussion regarding his custody and parenting time. Respondent showed no ability to understand his role in creating these dangers, often laughing off instructions regarding how he could safely parent AMG.
Considering AMG's bond with and love for her foster parents, their ability to provide for her needs for permanency and stability, and their plan to adopt, along with respondent's lack of bond with AMG and his inability to be an appropriate parent, the trial court did not clearly err in finding that termination of respondent's parental rights was in AMG's best interests.
Affirmed.
/s/ Michael J. Riordan
/s/ Colleen A. O'Brien
/s/ Brock A. Swartzle