Opinion
No. 334748
03-16-2017
In re G. E.-I. J. BANKS-FRICK, Minor.
UNPUBLISHED Cass Circuit Court Family Division
LC No. 15-000102-NA Before: MARKEY, P.J., and WILDER and SWARTZLE, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court's order terminating his parental rights to his biological child pursuant to MCL 712A.19b(3)(g), (h), (j), and (n)(i). We affirm.
On the day the child was born, the Department of Health and Human Services (DHHS) filed a petition seeking to bring the child within the trial court's protective jurisdiction. The petition alleged that respondent was currently incarcerated on multiple charges of criminal sexual conduct in the first degree (CSC I), MCL 750.520b(1)(a), that a child was previously removed from respondent's care due to sexual-abuse allegations, that father had a history of criminal sexual conduct, and that respondent was unable to provide proper care and custody for the child due to his current incarceration.
The trial court held a preliminary hearing the same day that DHHS filed this petition. Respondent appeared unrepresented at this hearing and requested counsel. The trial court advised respondent to fill out a form attesting to his indigency, indicated that it would appoint counsel for respondent, and stated that it would adjourn the hearing for respondent to meet with appointed counsel. The trial court, however, continued the preliminary hearing, received evidence, and authorized the petition before actually adjourning.
Following this hearing, the DHHS filed an amended petition, expanding upon respondent's criminal history and the charges against him. This petition alleged that respondent was arrested in 2010 for exposing his penis to a woman at a rest area in Michigan and that respondent pled guilty to misdemeanor sexual conduct in the first degree in 2001 after he exposed his penis to two women in Missouri, one of whom was under the age of 13. Regarding the pending charges against respondent, petitioner alleged that respondent and his wife—the child's mother—were each charged with sexually assaulting three girls under the age of thirteen. Petitioner cited an interview with the seven-year-old victim, in which she stated that respondent put his fingers in and licked her vagina, that respondent put his penis in her vagina and anus, and that respondent made her hold his penis and move her hands up and down. Petitioner also alleged, inter alia, that the victim stated that respondent's wife would lick her vagina and touch her breasts, and that respondent and his wife attempted to use a pink device that buzzed with her. Petitioner alleged that the victim stated that both respondent and his wife participated in this conduct and that this conduct happened on more than ten occasions. Petitioner also alleged that the second victim stated in an interview that respondent touched her vagina and butt and that the third victim would not provide details to the interviewer because a "mean lady" told her that she could not tell anyone what happened. Concerning the previous removal of a child from respondent's care, this petition alleged that the child was removed from respondent's care after respondent texted a woman asking her to engage in sexual acts with her 14-month-old daughter.
Respondent-mother voluntarily relinquished her parental rights to this child. The termination of mother's parental rights is not before this Court.
When the preliminary hearing resumed, respondent, now represented by counsel, waived the probable cause determination, and the trial court again authorized the petition. Subsequently, DHHS requested a psychological evaluation of respondent with Dr. Randall Haugen to determine his amenability to treatment in light of his deviant sexual history. As part of this evaluation, Merridessa Katz, working in Dr. Haugen's office, interviewed respondent.
Before the termination hearing, a jury convicted respondent of three counts of CSC I and respondent was sentenced to life in prison. At respondent's termination hearing, Dr. Haugen testified concerning respondent's psychological evaluation. According to Dr. Haugen, the evaluation revealed that respondent had a high risk of recidivism. Dr. Haugen opined that the child would be at a high risk of abuse and neglect if returned to respondent, and testified that respondent needed considerable time for treatment before he should be allowed to parent a child. Following the hearing, the trial court terminated respondent's parental rights.
On appeal, respondent does not challenge the trial court's determinations regarding the statutory grounds underlying the termination of his parental rights, or the trial court's determination that termination served the best interests of the child. Rather, respondent first argues that the trial court denied him his right to counsel when it authorized the petition to terminate his parental rights after he had requested, but before he was represented by, counsel. We agree that the trial court erred by authorizing the petition but do not find that the error affected respondent's substantial rights.
Because respondent did not raise this issue before the trial court, the issue is unpreserved. This Court reviews "unpreserved issues for plain error affecting substantial rights." In re England, 314 Mich App 245, 263; 887 NW2d 10 (2016). "To avoid forfeiture under the plain-error rule, three requirements must be met: (1) an error must have occurred; (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412, 421 (2011) (internal citation and quotation marks omitted). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008).
At a preliminary hearing, "[u]nless the preliminary hearing is adjourned, the court must decide whether to authorize the filing of the petition and, if authorized, whether the child should remain in the home, be returned home, or be placed in foster care pending trial." MCR 3.965(B)(12). "The 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 712A.2(b)." MCR 3.965(B)(12).
In In re Jones, 137 Mich App 152, 155-159; 357 NW2d 840 (1984), this Court determined that parents have a right to counsel at a preliminary hearing and that the trial court should advise parents of that right at or near the beginning of the preliminary hearing. In this case, respondent requested counsel and the trial court indicated both that it would grant respondent's request and that it would adjourn the hearing until respondent had been provided with counsel. The trial court then continued the hearing, engaging in a colloquy with respondent and a representative from the DHHS.
Under MCR 3.965(B)(11), once the trial court adjourned the hearing, it was appropriate for the trial court to engage in a limited colloquy with those present for the purpose of making "temporary orders for the placement of the child . . . to assure the immediate safety of the child, pending completion of the preliminary hearing." Here, however, the trial court inexplicably took the further step of authorizing the petition, thereby implying its finding of probable cause, which, in turn, could only have been based on its discussions with those present at the preliminary hearing. This was error. Once respondent requested counsel, the trial court should not have authorized the petition or considered probable cause until respondent was meaningfully provided with counsel. See In re Bermudez, unpublished decision of the Court of Appeals, issued March 19, 2015 (Docket No. 323864), p 3.
We recognize that an unpublished decision is not binding upon this Court. MCR 7.215(C)(1). We conclude, however, this decision is persuasive here. See Paris Meadows, LLC v City of Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d 133 (2010). --------
With that said, to the extent that the trial court erred, this error did not affect respondent's substantial rights. After the trial court appointed counsel for respondent, respondent appeared with his counsel at the September 24, 2015 preliminary hearing and waived the probable cause determination, thereby allowing the trial court to authorize the petition. Given this waiver, respondent cannot show that the outcome of the proceeding would have been different had counsel represented him at his initial preliminary hearing. Therefore, respondent failed to demonstrate that the trial court's error affected his substantial rights.
Respondent next argues that the trial court erred by allowing Dr. Haugen to testify regarding the psychological evaluation because Dr. Haugen did not perform the evaluation. We disagree.
Although respondent objected to Dr. Haugen's testimony because he believed Dr. Haugen was biased, he did not object on the ground that Dr. Haugen did not perform respondent's psychological evaluation. Therefore, this issue is unpreserved. See In re Snyder, 223 Mich App 85, 92; 566 NW2d 18 (1997) (holding that an objection on one ground is insufficient to preserve an appellate attack on a different ground).
The rules of evidence in termination of parental rights proceedings are governed by MCR 3.977(H)(2), which states as follows:
The Michigan Rules of Evidence do not apply, other than those with respect to privileges, except to the extent such privileges are abrogated by MCL 722.631. At the hearing all relevant and material evidence, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value. The parties must be afforded an opportunity to examine and controvert written reports received by the court and shall be allowed to cross-examine individuals who made the reports when those individuals are reasonably available.Respondent does not contest that Dr. Haugen's testimony was relevant and probative to whether the trial court should terminate his parental rights. Respondent was not only given an opportunity to inspect the report and cross-examine Dr. Haugen, he also utilized this opportunity to point out that Dr. Haugen did not personally conduct respondent's interview. Accordingly, it is clear to us that the trial court properly admitted Dr. Haugen's testimony under MCR 3.977(H)(2). That Dr. Haugen did not perform the interview underlying the written evaluation impacts only the evaluation's probative value, not its admissibility.
The crux of respondent's argument on appeal, however, is that he should have been permitted to cross-examine Katz, the person who prepared the psychological evaluation. Nonetheless, if respondent sought to cross-examine Katz, he could have subpoenaed her to testify at trial, thereby making her reasonably available and allowing him the opportunity to cross-examine her. See MCR 3.977(H)(2). Because there is no indication on the record that respondent subpoenaed Katz, his argument is without merit.
Affirmed.
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
/s/ Brock A. Swartzle