Opinion
No. 351240
08-20-2020
In re CONDRON, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 17-001041-NA Before: REDFORD, P.J., and METER and O'BRIEN, JJ. PER CURIAM.
Respondent father appeals as of right the order terminating his parental rights to his children JAC, JC1, and JC2, under MCL 712A.19b(3)(b)(i) (sexual abuse of child or sibling and reasonable likelihood of abuse or injury in the foreseeable future if returned home), (j) (reasonable likelihood child will be harmed if returned to parent), and (k)(ii) (sexual penetration of child or sibling and reasonable likelihood that the child will be harmed if returned home). For the reasons set forth in this opinion, we affirm the trial court's decision to terminate respondent father's parental rights to JAC and affirm the trial court's jurisdiction and statutory grounds decisions respecting JC1 and JC2, but we remand for further proceedings for the trial court to review and articulate on the record the grounds for its decision that termination of respondent father's parental rights to JC1 and JC2 served their respective best interests.
I. BACKGROUND
Petitioner, the Department of Health and Human Services (DHHS), petitioned for the immediate termination of respondent father's parental rights on the ground that he sexually abused JAC, his teenaged daughter. The sexual abuse allegedly included vaginal, anal, and oral penetration. Rather than proceed to trial, respondent father entered a no-contest plea as to jurisdiction and statutory grounds. For the factual basis of the plea, the trial court relied on an investigator's report from the Taylor Police Department which detailed respondent father's sexual abuse of JAC. After accepting respondent father's plea, the trial court heard from witnesses and ultimately determined that termination of respondent father's parental rights served the children's best interests.
II. VALIDITY OF PLEA
Respondent father argues that, when accepting his plea to establish the court's jurisdiction over the children, the trial court erred by failing to properly advise him of his rights as required under MCR 3.971(B). We agree that the trial court erred, but the error does not warrant reversal.
Respondent father failed to move to withdraw his plea in the trial court or otherwise object to the advice of rights that the trial court provided him. Therefore, he failed to preserve this issue for appeal. In re Pederson, ___ Mich App ___, ___; ___NW2d ___ (2020) (Docket No. 349881); slip op at 8. Unpreserved claims of error arising out of child protective proceedings are reviewed for plain error affecting substantial rights. Id. "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. at 763-764 (quotation marks, alteration, and citation omitted).
On September 12, 2019, the scheduled trial date in this case, respondent father chose to enter a no-contest plea for both jurisdiction and statutory grounds. Specifically, respondent father admitted to the allegations of sexual abuse contained in the petition as specified in an investigator's report prepared by the Taylor Police Department related to the investigation of respondent father's sexual abuse of JAC. On appeal, respondent father contends that the trial court erred when it failed to fully advise him pursuant to MCR 3.971(B)(1) of the allegations in the petition, and failed to advise him as required under MCR 3.971(B)(3) that his obligation to support the children could extend beyond termination of his parental rights. In reliance on In re Ferranti, 504 Mich 1; 934 NW2d 610 (2019), respondent father argues that the orders of adjudication and termination of his parental rights must be vacated and that this case must be remanded to the trial court for further proceedings.
At the time the trial court accepted and entered respondent father's plea, MCR 3.971 provided, in relevant part:
(B) Before accepting a plea of admission or plea of no contest, the court must advise the respondent on the record or in a writing that is made a part of the file:
(1) of the allegations in the petition;
(2) of the right to an attorney, if respondent is without an attorney;
(3) that, if the court accepts the plea, the respondent will give up the rights to
(a) trial by a judge or trial by a jury,
(b) have the petitioner prove the allegations in the petition by a preponderance of the evidence,
(c) have witnesses against the respondent appear and testify under oath at the trial,
(d) cross-examine witnesses, and
(e) have the court subpoena any witnesses the respondent believes could give testimony in the respondent's favor;
(4) 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.
(5) if parental rights are subsequently terminated, the obligation to support the child will continue until a court of competent jurisdiction modifies or terminates the obligation, an order of adoption is entered, or the child is emancipated by operation of law. Failure to provide required notice under this subsection does not affect the obligation imposed by law or otherwise establish a remedy or cause of action on behalf of the parent.
Before accepting respondent father's plea, the trial court advised him that he had rights including that he had an absolute right to a trial but neglected to advise him of his entitlement to a trial by a judge or a trial by a jury. The trial court further advised that he had the right to have petitioner prove the allegations in the petition by a preponderance of the evidence for the purpose of jurisdiction and prove by clear and convincing evidence the allegations for the purpose of establishing statutory grounds for termination of his parental rights. The trial court advised respondent father that he also had the right to remain silent and not to have his silence used against him, the right to testify on his own behalf, and the right to cross-examine any witnesses. The trial court did not advise respondent father of the allegations in the petition or that he could be responsible for child support even if his rights were terminated.
Due process and our court rules require a trial court to advise a respondent father of the rights that he will waive by his plea and the consequences that may flow from it. In re Ferranti, 504 Mich at 30. By failing to fully advise respondent father pursuant to MCR 3.971(B) of the petition allegations, his rights regarding a jury trial, and that he may have a support obligation if his parental rights were terminated, the trial court plainly erred. The court erred by failing to advise him of the consequences of his plea and the rights he was giving up. Id.
Respondent father, however, has failed to establish that the trial court's plain error affected his substantial rights because he failed and cannot show that plain error determined the outcome or seriously affected the fairness, integrity or public reputation of the judicial proceedings. Unlike In re Ferranti, 504 Mich at 30-31, where our Supreme Court found error requiring reversal because the trial court failed to advise the respondents of any of the rights enumerated in MCR 3.971, the trial court advised respondent father of most of his rights that he waived by pleading no contest. In In re Pederson, ___ Mich App at ___; slip op at 10-11, this Court found that the trial court's failure to advise the respondents that their pleas could be later used as evidence in a proceeding to terminate parental rights was not an outcome-determinative error. This Court explained:
This case does not feature the numerous errors that occurred in In re Ferranti. Respondents in this case only take issue with the fact that the trial court failed to advise them that their pleas could "later be used as evidence in a proceeding to terminate parental rights" as required by MCR 3.971(B)(4). Thus, unlike the parents in In re Ferranti, respondents in this case were informed of most of the rights that they were waiving, including their rights to a trial by judge or jury, to have witnesses against them appear, and to subpoena witnesses. Moreover, the transcript of the plea proceeding supports that respondents reviewed the allegations in the petition with their attorney, who represented them at the plea hearing. [Id. at ___; slip op at 11.]
In this case, the trial court advised respondent father of nearly all of the rights that he would waive if he pleaded no contest. Respondent father affirmed to the trial court that he had consulted with his attorney regarding his plea. The record reflects that the facts to which respondent father agreed to plead no contest were contained in the Taylor Police Department's Investigative Report submitted to the trial court and the parties and relied upon by petitioner to establish jurisdiction and statutory grounds respecting respondent father. The record does not reflect that respondent father or his counsel lacked an understanding as to the report's contents or the allegations stated in the petition. Under the circumstances presented in this case, although plain error occurred, it neither determined the outcome nor seriously affected the fairness, integrity or public reputation of judicial proceedings. Respondent father, therefore, is not entitled to relief in this regard.
III. DISCOVERY
Respondent father argues that (1) petitioner failed to provide complete discovery under MCR 3.922. We disagree.
"[I]ssues that are raised, addressed, and decided by the trial court are preserved for appeal." In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). Respondent father did not raise the issue of incomplete discovery in the trial court, and therefore, failed to preserve the issue for appeal. Id. Unpreserved issues are reviewed for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." In re Smith Trust, 274 Mich App 283, 285-286; 731 NW2d 810 (2007) (quotation marks and citations 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 at 9.
"The principles applicable to claims of ineffective assistance of counsel in the arena of criminal law also apply by analogy in child protective proceedings . . . ." In re Martin, 316 Mich App 73, 85; 896 NW2d 452 (2016). To preserve a claim of ineffective assistance of counsel, a party "must move the trial court for a new trial or evidentiary hearing." People v Lane, 308 Mich App 38, 68; 862 NW2d 446 (2014). Respondent father did not move the trial court for a new trial or evidentiary hearing. Id. "When the trial court has not conducted a hearing to determine whether a [respondent's] counsel was ineffective, our review is limited to mistakes apparent from the record." Id. "[Respondent father's] claim of ineffective assistance of counsel is a mixed question of fact and constitutional law." Id. at 67 (quotation marks and citation omitted). Findings of fact are reviewed for clear error, while questions of law, including questions of constitutional law, are reviewed de novo. Id. at 67-68. "The trial court's findings are clearly erroneous if this Court is definitely and firmly convinced that the trial court made a mistake." People v Shaw, 315 Mich App 668, 671-672; 892 NW2d 15 (2016).
MCR 3.922 governs discovery in child protection proceedings. MCR 3.922(A)(1)(f) provides that the following information is discoverable: "the results of all scientific, medical, psychiatric, psychological, or other expert tests, experiments, or evaluations, including the reports or findings of all experts, that are relevant to the subject matter of the petition." Respondent father argues that the medical records concerning the children's abuse examinations were discoverable and should have been turned over to respondent father because they were medical records that were "relevant to the subject matter of the petition." MCR 3.922(A)(1)(f). If the medical records pertained to a physical examination of JAC, then the records were relevant to the petition which alleged that respondent father sexually abused JAC orally, vaginally, and anally. However, under the discovery rule as it existed at the time of these proceedings, respondent father needed to request the medical records at least 21 days before trial. MCR 3.922(A)(1). No evidence in the record establishes that he did so. Therefore, we find no mistake apparent in the record entitling respondent father to relief.
Respondent father also argues that the medical records were exculpatory which required petitioner to turn them over. In the criminal context, "a defendant's right to due process may be violated by the prosecution's failure to produce exculpatory evidence in its possession." People v Bosca, 310 Mich App 1, 27; 871 NW2d 307 (2015). "The Supreme Court of the United States held in Brady that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' " People v Chenault, 495 Mich 142, 149; 845 NW2d 731 (2014), quoting Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963). "[T]he components of a 'true Brady violation,' are that: (1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material." Chenault, 495 Mich at 150. "To establish materiality, a defendant must show that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (quotation marks and citation omitted). Neither this Court nor our Supreme Court have ruled that the DHHS must produce exculpatory evidence in its possession in a child protection proceeding. We are not persuaded that the Brady requirements apply in child protection proceedings, but even if we were, respondent father cannot establish a Brady violation.
In this case, respondent father attached medical records to his appeal brief and states only that they could be exculpatory evidence. JAC's medical records, however, are not part of the trial court record. "This Court's review is limited to the record established by the trial court, and a party may not expand the record on appeal." In re Rudell Estate, 286 Mich App 391, 405; 780 NW2d 884 (2009) (quotation marks and citation omitted). Even if the records are considered, respondent father has failed to establish that he is entitled to any relief. The records reflect that JAC's physical examination occurred weeks after the last incident of sexual abuse in which respondent father forced JAC to perform oral sex on him. The records indicated no physical injuries to her vaginal or rectal areas but did not rule out the sexual abuse reported by JAC. Further, the records report that JAC voice recorded one event of respondent father's sexual abuse and during her interview reported being anally and orally penetrated by respondent father for over a year. Respondent father's speculation that such evidence could have been exculpatory is not supported by the records.
Further, respondent father has failed to establish the materiality of such evidence. He does not assert in his appeal brief that he would not have entered a no-contest plea if he had obtained the records. Therefore, we cannot conclude that disclosure of the records would have affected the outcome of the proceeding. Under these circumstances, respondent father has failed to establish that a Brady violation occurred or that he is entitled to any relief.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Respondent father also argues that his counsel provided him ineffective assistance. We disagree.
"The principles applicable to claims of ineffective assistance of counsel in the arena of criminal law also apply by analogy in child protective proceedings; therefore, it must be shown that (1) counsel's performance was deficient, falling below an objective standard of reasonableness, and that (2) the deficient performance prejudiced the respondent." In re Martin, 316 Mich App at 85. To establish that he suffered prejudice, respondent must prove that, but for his counsel's deficient performance, the result of the proceeding would have been different. Lane, 308 Mich App at 68. This Court, however, presumes that counsel gave respondent father effective assistance. Id.
Respondent father first argues that his counsel's performance fell below an objective standard of reasonableness when his counsel expressed satisfaction with the advice of rights given to respondent father by the trial court. Even if respondent father's counsel provided deficient performance in this regard, respondent father has failed to establish how the deficient performance prejudiced him. If counsel had expressed dissatisfaction with the advice of rights, the trial court would have corrected any errors and the proceeding would have then continued. Respondent father does not assert that the deficient advice of rights affected his decision to enter a no-contest plea. Neither does he contend that the outcome would have been different. Thus, respondent father has failed to establish prejudice.
Respondent father next argues that counsel may have been ineffective because he might not have requested all of the discovery outlined in MCR 3.922. He does not assert that he failed to do so. Respondent father bears the burden of establishing the factual predicate of his claim of ineffective assistance of counsel. People v Jackson (On Reconsideration), 313 Mich App 409, 431-432; 884 NW2d 297 (2015). Respondent father has failed to do so.
Respondent father further argues that his right to effective assistance of counsel may have been denied by state conduct. A respondent's right to the effective assistance of counsel may be denied by government action. Bell v Cone, 535 US 685, 696 n 3; 122 S Ct 1843; 152 L Ed 2d 914 (2002). Respondent father first suggests that the DHHS's failure to provide JAC's medical records served as a state action that deprived him of effective assistance of counsel. Respondent father fails to explain how the production of such records would have affected the proceedings considering that he voluntarily pleaded no contest in this case. He fails to establish that he would not have entered such a plea if he had received the records and offers conjecture of impropriety by the trial court and his counsel without any evidence to substantiate his speculation. Respondent father, therefore, has failed to establish how his counsel's performance affected the outcome of the proceedings.
Respondent father asserts that "on occasion jurists pressure defense counsel to move forward, and limit their defense" because the trial court is probably the busiest juvenile court in the state. The record, however, does not reflect that the trial court pressured respondent father's counsel in any manner. Nothing indicates that the trial court influenced respondent father's plea decision. The record reflects that respondent father faced criminal charges stemming from the same conduct alleged in the petition and he had counsel representing him throughout the child protective proceedings. Nothing in the record indicates that respondent father's counsel failed to provide him effective counsel. Respondent father has failed to establish that he received ineffective assistance of counsel either because of the actions of counsel himself or the government.
V. STATUTORY GROUNDS
Respondent father argues that clear and convincing evidence failed to establish statutory grounds for the termination of his parental rights to JC1 and JC2. We disagree.
Respondent father waived review of this issue when he entered his no-contest plea to both jurisdiction and statutory grounds. See In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011) (declining to address the respondent-mother's argument on appeal that the trial court clearly erred in terminating her parental rights because the respondent-mother's argument "that the evidence to support termination was not clear and convincing" directly contradicted her no-contest plea). "Respondent may not assign as error on appeal something that [he] deemed proper in the lower court because allowing [him] to do so would permit respondent to harbor error as an appellate parachute." Id.
We review for clear error the trial court's determination of statutory grounds under MCL 712A.19b(3) for termination of parental rights. MCR 3.977(K); In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). To terminate parental rights, the trial court must find by clear and convincing evidence at least one statutory ground for termination. Id. A finding 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 Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009) (quotation marks and citation omitted). Clear error review requires a lower court's decision to strike this Court "as more than just maybe or probably wrong." Id.
In this case, the trial court determined that petitioner established the existence of statutory grounds under MCL 712A.19b(3)(b)(i), (j), and (k)(ii) by clear and convincing evidence. MCL 712A.19b(3)(b)(i), (j), and (k)(ii) provide:
(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
(i) The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent's home.
* * *
(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.
* * *
(k) The parent abused the child or a sibling of the child, the abuse included 1 or more of the following, and there is a reasonable likelihood that the child will be harmed if returned to the care of the parent:
* * *
(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
"In order to comply with the guarantees of substantive due process, the state must prove parental unfitness by 'at least clear and convincing evidence' before terminating a respondent's parental rights." In re B & J, 279 Mich App 12, 23; 756 NW2d 234 (2008). "[T]he liberty interest of the parent no longer includes the right to custody and control of the children" after the trial court determines that at least one statutory ground for termination existed by clear and convincing evidence. In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000), superseded in part by statute on other grounds as recognized in In re Moss, 301 Mich App 76, 88; 836 NW2d 182 (2013). If we conclude that the trial court did not clearly err by finding one statutory ground for termination, we need not address the additional grounds. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
In this case, evidence established that respondent father repeatedly sexually abused JAC by penetrating her. JC1 and JC2 are JAC's siblings. "Evidence of how a parent treats one child is evidence of how he or she may treat the other children." In re Hudson, 294 Mich App at 266. Therefore, how respondent father treated JAC is evidence of how he may treat JC1 and JC2. Respondent father argues that JC1 and JC2 would not be subjected to the same abuse as JAC because JC1 and JC2 are boys while JAC is a girl. Respondent father, however, cites no authority for the proposition that boys are less likely to be sexually abused by a parent than girls. The court also terminated respondent father's parental rights to the children under MCL 712A.19b(3)(j). Harm includes physical as well as emotional harm or abuse. In re Hudson, 294 Mich App at 268. The record reflects that JC1 and JC2 faced the risk of emotional harm if they were placed into the care of their sister's abuser. JC1 and JC2 were also at risk of sexual abuse because of respondent's abuse of JAC. Id. at 266. The trial court, therefore, did not clearly err by ruling that clear and convincing evidence established at least one statutory ground under MCL 712A.19b(3) for the termination of respondent father's parental rights to the children.
VI. BEST INTERESTS
Respondent father argues that the trial court erred when it determined that termination of his parental rights served JC1's and JC2's best interests. Because the trial court did not articulate on the record the analysis it undertook regarding the best-interest determinations related to JC1 and JC2, we are unable to determine whether the trial court erred. We therefore believe that remanding the case solely for the purpose of the trial court setting forth its analysis, reasoning, and conclusions related to the best-interest determinations respecting JC1 and JC2 is appropriate.
Respondent father does not challenge the trial court's best-interest decision regarding JAC. Therefore, we are not required to address that aspect of the trial court's termination decision and affirm it. --------
We review for clear error the trial court's best-interest decision. In re Williams, 286 Mich App at 271. A finding 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." Id. (quotation marks and citation omitted). Regard must "be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011). The trial court must determine by a preponderance of the evidence that termination of parental rights serves the children's best interests. In re Moss, 301 Mich App at 90.
MCL 712A.19b(5) provides: "If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made." "The trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). The focus must be on the child, rather than the parent. In re Moss, 301 Mich App at 87. In making the best-interest determination, "the court may consider the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, and the advantages of a foster home over the parent's home." In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). "The trial court may also consider a parent's history of domestic violence, the parent's compliance with his or her case service plan, the parent's visitation history with the child, the children's well-being while in care, and the possibility of adoption." In re White, 303 Mich App at 714. The trial court should "make findings as to each child's best interests before deciding whether termination of respondent['s] parental rights is warranted." Id. at 715 (citation omitted, alteration added).
In this case, the trial court did not articulate on the record whether it considered or weighed the applicable best-interest factors for its best-interest determinations for JC1 or JC2. The trial court only found that termination served their best interests because of respondent father's sexual abuse of JAC. The trial court's failure to articulate on the record its best-interest analysis regarding JC1 and JC2 requires that we remand to the trial court for further proceedings to permit further development of the record to enable this Court's consideration of respondent father's claim of error in this regard. On remand, the trial court shall conduct further proceedings to only consider and weigh the best-interest factors applicable to JC1 and JC2 and express on the record its determination whether termination of respondent father's parental rights serves JC1's and JC2's respective best interests.
We affirm the trial court's decision to terminate respondent father's parental rights to JAC. We also affirm the trial court's jurisdiction and statutory grounds decisions respecting JC1 and JC2, but we remand for further proceedings for the trial court to review and articulate on the record the grounds for its decision that termination of respondent's parental rights to JC1 and JC2 served their respective best interests. We retain jurisdiction.
/s/ James Robert Redford
/s/ Patrick M. Meter
/s/ Colleen A. O'Brien
ORDER
James Robert Redford Presiding Judge Patrick M. Meter Colleen A. O'Brien Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for further proceedings for the trial court to review and articulate on the record the grounds for its decision that termination of respondent's parental rights to JC1 and JC2 served their respective best interests. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 56 days of the Clerk's certification of this order, and they shall be given priority on remand until they are concluded. The proceedings on remand are limited to this issue.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of the proceedings.
/s/ James Robert Redford
Presiding Judge
A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on
August 20, 2020
Date
/s/_________
Chief Clerk