Opinion
No. 344208
01-17-2019
In re B. HAMILTON, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Allegan Circuit Court Family Division
LC No. 12-050572-NA Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ. PER CURIAM.
Respondent appeals as of right the termination of his parental rights to BH under MCL 712A.19b(3)(g), MCL 712A.19b(3)(h), MCL 712A.19b(3)(j), and MCL 712A.19b(3)(n). Because respondent was not denied due process, we affirm.
I. BASIC FACTS
In 2004, respondent was convicted of second-degree criminal sexual conduct with a child under 13 years old. After his discharge from prison in 2011, he engaged in a relationship that resulted in BH's birth. During 2015, because BH's mother allowed respondent into the family home while her children were present and allowed him unsupervised time with them, and because respondent was under investigation by state and federal law enforcement for possession of child pornography, petitioner sought removal of the children, including BH. While the case was pending, respondent pleaded guilty to federal child pornography offenses and received a 10-year sentence. He was incarcerated in a federal corrections facility in Ohio. Petitioner amended the petition seeking termination of respondent's parental rights to BH.
Respondent demanded a jury trial, and the trial court issued a writ of habeas corpus to secure his physical presence for the adjudication trial. The federal corrections authorities refused to comply with the writ and declined to transport respondent to the proceedings. Thereafter, arrangements were made for respondent to attend the trial by phone. Just before the trial commenced on October 18, 2017, respondent learned he would only be able to attend by phone, so he refused to participate. Respondent's lawyer moved for an adjournment, which the court granted to allow respondent to decide if he wanted to participate. After several additional adjournments, the court rescheduled the adjudication and termination proceedings for May 8, 2018, and sent respondent notice in the federal prison where he was incarcerated. Respondent's lawyer also received notice of the trial date. Neither respondent nor his lawyer advised the trial court or petitioner that respondent desired to participate in the adjudication and termination proceedings. However, at the adjudication trial and before the termination hearing, respondent's lawyer requested an adjournment to determine whether respondent would participate. The court refused and conducted the proceedings in respondent's absence. The jury found grounds for taking jurisdiction over BH, and the trial court terminated respondent's parental rights to BH.
II. DUE PROCESS
A. STANDARD OF REVIEW
Respondent does not challenge the jury's adjudication trial verdict, the trial court's ruling that statutory grounds existed for termination, or the trial court's best-interest ruling. Instead, he argues that his due-process rights were violated because the trial court proceeded without his physical attendance or appearance by telephone. We review de novo whether a child protective proceeding complied with a respondent's right to due-process. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009). Constitutional due-process principles require that a parent receive notice of a hearing potentially affecting his liberty interest in a child and have an opportunity to participate in the hearing, either personally or through his lawyer. In re AMB, 248 Mich App 144, 213; 640 NW2d 262 (2001). This Court has held that an incarcerated parent does not have the "absolute right to be present at the dispositional hearing." In re Vasquez, 199 Mich App 44, 48; 501 NW2d 231 (1993). A parent's right to be present at or participate in the hearing is determined by the three-part balancing test set forth in Mathews v Eldridge, 424 US 319; 96 S Ct 893; 47 L Ed 2d 18 (1976). In re Vasquez, 199 Mich App at 50.
B. ANALYSIS
In Eldridge, the United States Supreme Court stated:
More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Eldridge, 424 US at 334-335.]
In this case, consideration of the Eldridge factors leads to the conclusion that respondent's due-process rights were not violated by his absence from the May 2018 proceedings. Respecting the first Eldridge factor, respondent's private interest to retain his parental rights was affected by the trial court's official action by conducting the adjudication and termination proceedings. See In re Vasquez, 199 Mich App at 47.
Analysis of the second Eldridge factor, however, does not support respondent's due-process violation claim. The record reflects that the trial court conducted the adjudication and termination proceedings properly, and respondent had representation by a lawyer who cross- examined petitioner's witnesses and had opportunity to present evidence on respondent's behalf. Respondent's lawyer knew that respondent opposed termination, and he argued against it. Furthermore, the risk of an erroneous deprivation of respondent's parental rights was not increased by his absence from the May 2018 proceedings. The evidence presented by petitioner overwhelmingly supported the jury's verdict and the trial court's findings and conclusions. On appeal, respondent has provided no argument indicating the existence of any evidence that his lawyer could have presented to impact the adjudication trial or the trial court's findings and legal conclusions regarding the existence of statutory grounds for termination of his parental rights and the trial court's best-interest decision. Indeed respondent presents nothing to indicate that an erroneous deprivation of his parental rights occurred or might have occurred.
The record also reflects that petitioner and the trial court made efforts to obtain respondent's attendance by issuing a writ of habeas corpus, but the federal prison authorities refused to transport respondent to the adjudication and termination proceedings. Petitioner and the trial court also provided respondent the opportunity to attend the October 2017 adjudication and termination proceedings via phone. Respondent, however, refused to participate after he learned that he could not physically attend. The trial court adjourned those proceedings so that respondent could decide if he desired to participate and the lengthy delay between October 2017 to May 2018 gave him and his lawyer ample time to inform the trial court and petitioner if he desired to participate via phone in the upcoming proceedings.
Yet, respondent and his lawyer made no efforts from October 2017 to May 2018 to secure respondent's presence either physically or via phone for the May 2018 adjudication and termination proceedings. Respondent had notice of the adjournment of the October 2017 proceedings and knew that the proceedings would recommence on May 8, 2018. Nevertheless, respondent's lawyer did nothing. The record reflects that respondent's lawyer never shared with petitioner or the trial court respondent's March 2018 letter that demanded physical attendance. The record does not indicate why respondent's lawyer made no effort to inform the trial court or to procure respondent's presence or participation by telephone in the May 2018 adjudication and termination proceedings despite knowing that his client desired to attend. Overall, consideration of the procedure and facts of this case under the second Eldridge factor does not support respondent's argument that the trial court deprived him of due process.
Analysis of the third Eldridge factor also leads to the conclusion that respondent's due-process rights were not violated in this case. Petitioner had an important governmental interest in obtaining the termination of respondent's parental rights to protect BH from harm and secure for BH permanency and stability. The evidence presented by petitioner compellingly supported termination of respondent's parental rights. Respondent had opportunity through his lawyer to present evidence to support his opposition to termination. Further, the record reflects that the trial court adjourned the adjudication and termination proceedings a number of times during the pendency of this case including because of respondent's refusal to participate by phone when given the opportunity in October 2017. Each adjournment delayed the proceedings. Such delays created unnecessary financial and administrative burdens for petitioner and the trial court.
In sum, based on consideration of the Eldridge factors in this case, the trial court did not violate respondent's due-process rights in this case.
Nevertheless, respondent asserts that the trial court could not terminate his rights because it and petitioner failed to comply with MCR 2.004 by refusing to give him the opportunity to participate in the proceedings by phone. Respondent's argument fails as a matter of law. MCR 2.004 is not applicable in cases where the respondent is incarcerated in a prison that is not under the jurisdiction of the Michigan Department of Corrections (MDOC). In re BAD, 264 Mich App 66, 71; 690 NW2d 287 (2004). Here, respondent was incarcerated in a federal prison in Ohio and not in a prison under the MDOC, so respondent's argument lacks merit and reversal is not warranted on this ground.
Respondent also relies on In re Mason, 486 Mich 142; 782 NW2d 747 (2010). In that case, our Supreme Court stated:
Each proceeding [in a child protective action] generally involves different issues and decisions by the court. Thus, to comply with MCR 2.004, the moving party and the court must offer the parent the opportunity to participate in each proceeding in a child protective action. For this reason, participation through a telephone call during one proceeding will not suffice to allow the court to enter an order at another proceeding for which the parent was not offered the opportunity to participate. [Id. at 154 (quotation marks omitted).]Thus, the ruling in Mason related to whether the court complied with MCR 2.004, not to whether the failure to comply with the court rule violated the respondent-parent's due-process rights. And, as explained above, MCR 2.004 does not apply when a respondent-parent is incarcerated in federal prison. Accordingly, respondent's reliance is misplaced.
Respondent's due-process rights were not violated.
Affirmed.
/s/ Jane E. Markey
/s/ Michael J. Kelly
/s/ Brock A. Swartzle