Opinion
No. 354243
02-18-2021
In re BEADLE, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Cass Circuit Court Family Division
LC No. 16-000167-NA Before: BECKERING, P.J., and SAWYER and SHAPIRO, JJ. PER CURIAM.
Respondent-mother appeals from an order of the circuit court taking jurisdiction over the minor children based upon respondent's no-contest plea to the petition. We affirm.
The trial court entered the order of adjudication based upon respondent's plea. The order indicated that there were statutory grounds under MCL 712A.2(b) because of "an unfit home environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian." Although the petition did cite a number of reasons for assuming jurisdiction, the referee specifically referenced an incident between respondent and the father "with the weapon that was used . . . ." The order also continued the previous removal order.
Respondent first argues that the manner in which the trial court conducted the adjudicative hearing denied her due process of law. We disagree. She raises a number of points in support of her claim. As our Supreme Court stated in In re Sanders, 495 Mich 394, 403-404; 852 NW2d 524 (2014), "[w]hether child protective proceedings complied with a parent's right to procedural due process presents a question of constitutional law, which we review de novo." Moreover, the parties agree that adjudication errors are reviewed for plain error and that respondent must show that "(1) error occurred; (2) the error was "plain," i.e., clear or obvious; and (3) the plain error affected their substantial rights." In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019).
We note that Ferranti specifically addressed the standard to be applied after the trial court has terminated parental rights. Ferranti, 504 Mich at 29. This Court has also applied the plain error standard to review of adjudication orders based upon pleas where the respondent has not moved to withdraw the plea. In re Pederson, 331 Mich App 445, ___; 951 NW2d 704 (2020).
First, respondent argues that at the April 27, 2020, preliminary hearing, which respondent participated in via Zoom, she did not know what it was about and had not been provided with a copy of the petition. She did raise this point at the hearing and the trial court had the petition re-emailed to respondent; but respondent indicated that she could not access her email. The court then had images of the petition texted to her, but they were too blurry to read. The court then read the entire petition. Respondent claims on appeal that she could not hear when the referee read the petition. But there is no indication in the record that she had any trouble hearing during the reading of the petition. Indeed, she even responded to questions by the referee and interrupted the reading a number of times, apparently wanting to object to the accuracy of claims in the petition.
Second, somewhat related to her first claim, respondent argues that she was unable to question the witness presented at the preliminary hearing after the petition was read. Respondent did indicate on the record that she had trouble hearing the witness, CPS investigator Rosalina Miller. The trial court responded "to make it clear for the record," that respondent was able to hear the other portions of the proceeding, had responded "a couple of times", and observed that respondent was closer to the speaker on her TV than the judge was to the speaker on the court's TV and the judge could hear the witness clearly.
Third, respondent claims, without any supporting argument, that the petition itself did not set forth a prima facie case of neglect or abuse. In the absence of such an argument, we cannot say that respondent has shown plain error.
Fourth, turning to the adjourned preliminary hearing held on April 17, 2020, she argues that, because she and her attorney were not physically present together, she could not easily communicate with the attorney. Fifth, she also complains of being unable to hear the April 17 proceedings despite trying to participate via Zoon on a cell phone. Respondent did raise the issue of being unable to hear on the phone, indicating that she could participate by Zoom on a different phone. She later makes a statement, apparently to the respondent-father, to hang up the phone and they "need to get up there." She again reiterates that she could get Zoom on "the other phone number." The phone is then hung up. The trial court indicates that it was going to proceed with the hearing, noting that respondents "could—they obviously have been hearing things by telephone," that they would be allowed to rejoin the hearing if they attempted to, that the court had "given them an opportunity and they've decided not to partake of that," and that the court was "not just going to continue to play these games back and forth." This latter point is the basis for respondent's sixth claim of a denial of due process.
Respondent's seventh claim of a violation of due process is that, at the April 17 hearing, the trial court allowed "highly prejudicial" testimony that was not relevant to any of the allegations of neglect in the petition. The testimony related to attempts to engage the parents in services and a medication issue regarding one of the children. No objections, however, to the testimony were placed on the record by respondent's attorney. Similarly, with respondent's eighth claim, she references brief testimony by Miller regarding information obtained during an interview with the children that generated additional information that might be the subject of an amended petition. Again, no objection was raised, nor does respondent develop an argument as to how this adversely affected the case.
Respondent's final claim under this issue is that the trial court's factual findings of probable cause were not supported by the evidence. These include references to one of the children being left alone with her father during a visit, that respondent was physically attacked by the father and she grabbed his gun, that the Department of Health and Human Services was upset by respondent's threatening to sue them, and references by the referee that respondent made inappropriate statements to the children during a Zoom visitation without those statements being referenced in the petition.
Even accepting respondent's claims as accurate, what is lacking is that she does little to argue these points beyond merely stating the claims. In particular, what is lacking is any discussion of why this Court should now set aside the petition as requested by respondent and grant a new preliminary hearing "with proper notice and the ability to meaningfully participate." Respondent's argument overlooks the fact that she ultimately pleaded no contest to the petition. And the parties stipulated to the use of the petition as the factual basis for the adjudication.
The purpose of the preliminary hearing is to determine if there is probable cause to believe that there is a factual basis to authorize the petition. See In re Ferranti, 504 Mich 1, 15; 934 NW2d 610 (2019). If the trial court finds that probable cause exists, it may then authorize the petition and the matter proceeds to the adjudication phase to determine whether the court may exercise jurisdiction over the child(ren) and enter dispositional orders. Id. This involves either a trial or a plea of admission or no contest by the parent. Id. Simply put, by entering a no-contest plea to the petition, with the stipulation that the trial court may use the allegations in the petition to establish jurisdiction, what happened (or did not happen) at the preliminary hearing is no longer of consequence. Rather, what is of consequence would be whether the plea itself was properly accepted and whether the allegations in the petition to which respondent stipulated were sufficient to establish jurisdiction.
Respondent's second argument on appeal addresses the first relevant question, specifically, whether the plea was knowingly, voluntarily, and understandingly made. See MCR 3.971(C). Respondent argues that it was not so made and, therefore, her plea should not have been accepted by the trial court. She advances four reasons in support of her argument.
First, respondent argues that at the beginning of the May 28, 2020, bench trial, she informed the court that she was "disoriented" and "not even here." But the trial court carefully went through the matter with respondent and respondent clearly indicated that she wished to not have a trial. Indeed, she even then admits on the record to an allegation in the petition, that "I am responsible. I am responsible for pulling the gun on [the father], but it was not loaded, and it was only in self-defense." Respondent's primary concern with pleading to the petition at the hearing seemed to be whether it would affect the father's ability to appeal the removal. Respondent also makes a one-sentence argument under that point that because she was incarcerated at the time of the plea, she was in an "obviously coercive environment." She fails, however, to make any meaningful argument on how that would have coerced her into pleading to the petition.
The reason for a no-contest plea rather than admitting to the petition was the potential criminal liability. --------
Second, respondent argues that, after her attorney informed the court that she was considering a no-contest plea, she did not confirm her attorney's representation and that she reiterated that she was disoriented and wanted to speak with the attorney and her ex-husband more. Respondent, in response to the trial court's advising her that a plea would waive her right to a trial, did state that she was disoriented. An extensive discussion between respondent and the court ensued. She then stated, "my biggest question is if I enter a no contest is that going to suspend my visits with my children?" The trial court then assured her that visitation was an issue separate from the plea and would be addressed. The court further assured respondent that the decision was hers to make, that she would not be forced into a plea, and explained that there would either be a trial or a plea. Respondent then stated that "I'll plead no contest." The court then goes through the various rights and secures respondent's agreement that she understands what the court is explaining.
Respondent's third argument involves her response when the trial court advises her of her right to appeal, which she then indicates that she wishes to do. After assuring respondent that her plea would not waive her right to appeal, the trial court states that "it's going to be really hard for me to accept a plea today, if you're saying I want to plea [sic], I want to plea [sic], I want to plea [sic], but then you file an appeal and say, no --." The exchange between the trial court and respondent at this point is essentially the respondent reiterating that she does not believe that she has negatively affected the children and wants to do what is best for the children, while the trial court expressed its hesitation in accepting the plea. Ultimately, the trial court stated that it understood that respondent wanted her children home, explained that that was a separate issue, and that "what we're looking at today is just whether or not to plead no contest or have a trial." Respondent responded "I will plead no contest." The trial court then asked all three attorneys whether they were comfortable moving forward, and each indicated that they were.
Respondent's fourth argument is that, at this last point, the trial court should have recessed the hearing to allow respondent to consult with her attorney. But no such request was made.
In sum, we are not persuaded that the trial court committed plain error in determining that the plea was knowingly, understandingly, and voluntarily made. Nor did the trial court commit plain error in determining that the factual basis exists to exercise jurisdiction over the children.
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Douglas B. Shapiro