Opinion
356645
09-23-2021
In re A. M. DENHAM, Minor.
UNPUBLISHED
Wayne Circuit Court Family Division LC No. 2017-001933-NA
Before: Cavanagh, P.J., and K. F. Kelly and Redford, JJ.PER CURIAM.
Respondent-father appeals as of right the trial court's order terminating his parental rights to his son, AMD, under MCL 712A.19b(3)(a)(ii) (desertion for 91 days or more), (c)(i) (conditions leading to adjudication continue to exist after 182 days and no reasonable likelihood that they will be rectified), and (j) (reasonable likelihood that the child will be harmed if returned to the parent). We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case concerns the termination of respondent's parental rights to AMD, the son of respondent and AMD's mother, W. Denham. Respondent and W. Denham met in Indiana. At some point, W. Denham became pregnant with AMD. Respondent left Indiana before AMD's birth in June 2011 and went to Mississippi where he lived on and off with his mother and stepfather.
The Michigan Department of Health and Human Services (DHHS) filed an initial petition during the fall of 2017 seeking removal of AMD from his mother's care. Most of the allegations in the petition related to W. Denham, but it identified respondent as AMD's legal father. The petition identified Camden, Mississippi, as respondent's last known location, but did not provide a specific address. At a pretrial hearing, the DHHS indicated that Mississippi constituted respondent's last known address, and that W. Denham had produced documents from Indiana establishing respondent as AMD's father. It does not appear that the documents were provided to the trial court until later in this case.
After a pretrial hearing, and because respondent's actual whereabouts were unknown, the trial court authorized publication of notice for an adjudication and dispositional hearing. The Detroit Legal News published notice of the hearing in mid-November 2017. At the joint adjudication and dispositional hearing, the trial court exercised jurisdiction over AMD. That same day, the trial court entered an order of adjudication that included findings that respondent was AMD's legal father and that he had failed to provide financial support and had abandoned AMD. The trial court found that the DHHS had made several efforts to contact respondent. The trial court also ordered services for W. Denham.
Throughout 2018 and 2019, the trial court held various hearings and entered orders mostly related to W. Denham. At a dispositional review hearing in July 2019, a DHHS foster care worker testified that she believed that respondent had signed over his rights, that AMD had no legal father. After this, the trial court began entering orders stating respondent had "previously released his parental rights." At the end of 2019, the trial court came close to ordering the filing of a petition to terminate W. Denham's parental rights to AMD, but it indicated that it would allow the parties time to work toward a guardianship with W. Denham's mother, with whom AMD had been placed throughout this case.
At a dispositional review hearing in July 2020, however, the trial court found W. Denham noncompliant with her parent-agency agreement and that she lacked readiness to have AMD returned to her care and custody. The trial court, therefore, ordered the filing of a petition for permanent custody. In mid-November 2020, the DHHS filed a supplemental petition to terminate both respondent-parents' respective parental rights. At a pretrial hearing, the trial court indicated that notice of the hearing in the petition would be made by publication.
On January 6, 2021, respondent appeared for the first time via Zoom to attend the supplemental permanent custody hearing. The trial court appointed respondent legal counsel and then indicated that before commencing the hearing it had the court's clerk e-mail a copy of the petition to respondent. Respondent acknowledged on the record receipt of the petition and his counsel provided the trial court respondent's Camden, Mississippi address. The trial court advised respondent to contact the DHHS foster care worker respecting services available to him. Five days later, on January 11, 2021, the trial court entered an order that respondent could have supervised visits with AMD in Michigan and the DHHS would refer respondent for services, including parenting classes and individual and family counseling. A little over a month later, at a hearing on February 4, 2021, the trial court terminated respondent's parental rights to AMD. The trial court entered an order consistent with its ruling at the February 4, 2021 hearing on March 9, 2021. This appeal followed.
II. DUE PROCESS
Respondent argues that the DHHS failed to adequately notify him of the proceedings which deprived him of his right to minimal procedural due process. He asserts that the trial court's decision to terminate his parental rights should be reversed. The lawyer-guardian ad litem for AMD agrees with respondent. We disagree.
"A court may terminate a respondent's parental rights if one or more of the statutory grounds for termination listed in MCL 712A.19b(3) have been proven by clear and convincing evidence. Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts Minors, 297 Mich.App. 35, 40-41; 823 N.W.2d 144 (2012). "[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence." In re Moss, 301 Mich.App. 76, 90; 836 N.W.2d 182 (2013). We review for clear error the trial court's factual findings and ultimate determination on the statutory grounds for termination. In re White, 303 Mich.App. 701, 709-710; 846 N.W.2d 61 (2014). The trial court's ruling regarding best interests is reviewed for clear error. In re Schadler, 315 Mich.App. 406, 408; 890 N.W.2d 676 (2016). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." In re Ellis, 294 Mich.App. 30, 33; 817 N.W.2d 111 (2011) (citation omitted). We review de novo whether child protective proceedings complied with a parent's right to procedural due process which presents a question of constitutional law. In re Sanders, 495 Mich. 394, 403-404; 852 N.W.2d 524 (2014) (citation omitted).
Parents have a constitutionally protected liberty interest in the right "to make decisions concerning the care, custody, and control of their children." Id. at 409. Thus, parents are entitled to due process before the government can interfere with their parental rights. Id. Due process requires fundamental fairness and a meaningful opportunity to be heard. In re Rood, 483 Mich. 73, 92; 763 N.W.2d 587 (2009). In In re Rood, 483 Mich. at 122, our Supreme Court discussed the due process concerns present in termination proceedings:
[A] parent is entitled to procedural due process if the state seeks to terminate his parental rights. The state must make reasonable efforts to notify him of the proceedings and allow him a meaningful opportunity to participate. We evaluate whether a particular parent was afforded minimal due process on a case-by-case basis. Statutory requirements, court rules, and agency policies provide an important point of departure for this inquiry.
When a parent is absent from the proceedings, the caseworkers must make efforts to locate the parent. Id. at 97. Additionally, under MCL 712A.13, a trial court can order service by registered mail to the respondent's last known address, or by publication, if the trial court concludes personal service is impracticable.
In this case, the trial court did not clearly err by terminating respondent's parental rights to AMD nor did the trial court deprive respondent of due process. As set forth above, the record reflects that when the case first began several efforts were made to contact respondent without success. In mid-November 2017, the trial court entered an order authorizing publication of a notice to respondent regarding the adjudication hearing because his address was unknown at the time. The next day, the trial court ordered W. Denham and respondent to appear at the adjudication hearing. In late November 2017, an affidavit of publication was filed with the Wayne Circuit Court Clerk indicating that the notice of hearing had been published in the Detroit Legal News earlier that month. Because respondent's whereabouts were unknown and personal service would be impracticable, the trial court properly found it appropriate to provide respondent notice by publication. See MCL 712A1.13.
After the adjudication and dispositional review hearing in December 2017, which respondent did not attend, the trial court entered an order of adjudication in which the trial court found that respondent failed to provide consistent financial support for his child, that the DHHS made reasonable efforts to contact respondent to no avail, and that respondent had abandoned AMD. Additionally, the record reflects that throughout 2018 and 2019 the DHHS continued to make reasonable efforts to locate respondent, including performing a "statewide MiBridges search, a Wayne County Inmate Search, a search in OTIS," and conducting interviews with W. Denham. From the outset of this case, respondent had been given notice and opportunity to appear and participate in the proceedings. Although respondent appeared for the first time at the January 6, 2021 permanent custody hearing and testified that he first learned of the proceedings on that day, he admitted that he had been notified by Child Protective Services (CPS) three years prior to the permanent placement hearings that a petition had been filed regarding AMD but he did nothing in response to that information. The record, therefore, indicates that respondent had been accorded adequate notice satisfying his right to procedural due process.
III. REASONABLE EFFORTS TOWARD REUNIFICATION
Respondent also argues that the DHHS failed to make reasonable efforts to provide him a treatment plan and allow him a meaningful opportunity to participate in that plan. We disagree.
"Reasonable efforts to reunify the child and family must be made in all cases except those involving aggravated circumstances under MCL 712A.19a(2)." In re Rippy, 330 Mich.App. 350, 355; 948 N.W.2d 131 (2019), citing In re Mason, 486 Mich. 142, 152; 782 N.W.2d 747 (2010). MCL 712A.19a states, in relevant part:
(1) Subject to subsection (2), if a child remains in foster care and parental rights to the child have not been terminated, the court shall conduct a permanency planning hearing within 12 months after the child was removed from his or her home. . . .
(2) The court shall conduct a permanency planning hearing within 30 days after there is a judicial determination that reasonable efforts to reunite the child and family are not required. Reasonable efforts to reunify the child and family must be made in all cases except if any of the following apply:
(a) There is a judicial determination that the parent has subjected the child to aggravated circumstances as provided in section 18(1) and (2) of the child protection law, 1975 PA 238, MCL 722.638.
Accordingly, reunification efforts need not be made if there is a judicial determination that the parent subjected the child to an aggravated circumstance listed in MCL 722.638. MCL 722.638 states, in relevant part:
(1) The department shall submit a petition for authorization by the court under section 2(b) of chapter XIIA of 1939 PA 288, MCL 712A.2, if 1 or more of the following apply:
(a) The department determines that a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child's home, has abused the child or a sibling of the child and the abuse included 1 or more of the following:
(i) Abandonment of a young child.
In its order of adjudication, the trial court determined that respondent had abandoned AMD. Thus, under MCL 712A.19a(2)(a), because the trial court found that aggravating circumstance of abandonment existed, the DHHS had no obligation to make reasonable efforts to reunify respondent with AMD. See MCL 712A.19a(2)(a); In re Rippy, 330 Mich.App. at 355.
The record also indicates that this case commenced in October 2017 and the DHHS made numerous efforts to contact respondent to obtain his participation in the proceedings. Three years later respondent appeared for the first time on January 6, 2021, at the permanent custody hearing. The trial court provided that respondent could have supervised visits with AMD if he came to Michigan or otherwise have supervised visits remotely via Zoom or by some other electronic means. The trial court adjourned the proceedings until January 25, 2021, at which respondent appeared. During the hearing the DHHS foster care worker testified that the court had made a finding that respondent had abandoned AMD. She testified that respondent had not involved himself in this case since its commencement and he had never visited AMD, never provided AMD any support, and never sought custody of AMD during the history of AMD's wardship. She stated that respondent remained in Mississippi where he resided. She advised the trial court, however, that respondent had contact with AMD before the wardship and she observed respondent have an appropriate telephone conversation with AMD after the January 6, 2021 hearing. She reported that respondent, however, had not been active or present to complete a Parent-Agency Treatment Plan or available for the agency to evaluate his ability to provide proper supervision to AMD.
During cross-examination, the foster care worker affirmed that she learned that respondent had phone contact with AMD in the past. She also affirmed that an Indiana court had ordered respondent to provide child support. She testified that AMD appeared to be acquainted with respondent and AMD indicated that he desired a relationship with respondent. Nevertheless, she testified that she believed that the trial court should move forward with deciding the termination petition because AMD needed permanency.
W. Denham testified that respondent last provided child support in 2016. She stated that respondent's parental rights had been terminated in Indiana but she initiated contact with respondent so that AMD might have some contact with respondent. She testified that respondent never contacted AMD on his own initiative. She denied, however, that respondent had any relationship with AMD and asserted that respondent abandoned AMD from his birth.
The trial court continued the proceedings until February 4, 2021, at which respondent testified. He affirmed that an Indiana court ordered him to pay child support and stated that since 2011 he paid when he had a job. He affirmed that he had a job before the Covid-19 virus struck but he had no idea how much child support his employer automatically took from his checks. Respondent testified that he had not been able to visit AMD because of the distance, but he stated that he had contact with AMD by phone and FaceTime. He admitted that he had not indicated an interest in visiting AMD and that he had not made any arrangements to do so. He admitted that he never sent AMD gifts or money but stated that he lacked the financial ability to do so. He affirmed that he did not want the trial court to terminate his parental rights. He admitted, however, that he lacked the ability to care and provide for AMD. He affirmed that he desired that AMD stay in his current placement with his maternal grandmother. Respondent testified that he desired a relationship with AMD and felt mentally able but denied that he had the financial ability to do so.
On cross-examination, respondent admitted that he had been contacted by CPS in 2016 asking him about this case. He admitted that he told the CPS caseworker that he had not seen AMD in four years. He admitted that he had been in arrears on his child support obligation and had been ordered to pay a certain amount per week to pay off his arrearage and also pay child support. He admitted further that he had not paid his child support arrearage and had not paid any child support within the last year. The trial court asked respondent how much child support he had paid since the court became involved in AMD's life in 2017. Respondent did not know and declined to estimate the amount for lack of certainty.
The trial court found that respondent had been notified by CPS three years prior to the permanent placement hearings that a petition had been filed regarding AMD and that respondent indicated that he had no relationship with AMD and had not provided any support. The trial court observed that respondent-parents had three years to put themselves in a position to plan for AMD. The trial court found that respondent had not in any way provided meaningful support financially or otherwise for AMD. The trial court also found that respondent had not had any in-person visits with AMD. The trial court recognized respondent's good intentions but found that clear and convincing evidence established that respondent had deserted AMD for 91 days or more and had not sought custody of him for that period. The trial court found that clear and convincing evidence established grounds for termination under MCL 712A.19b(3)(a), (c), and (j). The trial court next addressed AMD's best interests and found that termination of respondent's parental rights served AMD's best interests. The trial court explained that AMD needed permanence and stability that neither respondent-parent could provide.
The record in this case clearly establishes that respondent abandoned AMD and failed to provide for him financially or otherwise for many years. Clear and convincing evidence in the record established grounds for termination under MCL 712A.19b(3)(a), (c), and (j) and the record supports the trial court's best-interest determination. The trial court, therefore, did not err by terminating respondent's parental rights.
Affirmed.