Opinion
No. 339067
11-21-2017
In re L. A. A. HAMMOND, Minor.
UNPUBLISHED Kalamazoo Circuit Court Family Division
LC No. 16-000606-NA Before: HOEKSTRA, P.J., and STEPHENS and SHAPIRO, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor child under MCL 712A.19b(3)(g) (failure to provide proper care and custody) and (j) (reasonable likelihood of harm). We affirm.
The trial court also terminated the parental rights of the father, who consented to have his rights terminated. However, father is not a party to this appeal. The father was established as the legal father by an affidavit of parentage.
On December 21, 2016, the Department of Health and Human Services (DHHS) filed a petition to take jurisdiction and to request termination. The referee conducted a preliminary hearing, and authorized the petition. The grounds were that the minor child was born with methamphetamine, amphetamine, and marijuana in her meconium, and because respondent and the biological father had previously had their parental rights to another child terminated.
Both respondent and the father did not appear during the preliminary hearing, but was represented by counsel. The court noted that respondent contacted the court to inform it that she could not attend due to outstanding warrants, and had asked to appear by phone. However, the court declined to allow respondent to appear by phone noting that it was the court's policy to disallow individuals with outstanding warrants to appear by phone.
MCL 712A.19a(2) provides several circumstances allowing for immediate termination of parental rights.
Testimony revealed that the parental rights of the parents were previously terminated due to substance abuse, and the police reports showed that there was ongoing domestic violence.
On April 11, 2017, the court conducted a combined jurisdiction and dispositional hearing. The identity of the child's father was not known for certain at that time. The court ordered DNA testing to confirm paternity as to the father, and adjourned the jurisdictional trial as to the father for 60 days. Respondent's counsel requested that the court adjourn respondent's case as well so that the entire matter could be heard together. The trial court declined to adjourn respondent's case and took her plea in which she stated that for the good of her child and her inability to provide care, she agreed to the court taking jurisdiction and terminating her parental rights. After plaintiff's testimony, the court concluded that respondent "knowingly and voluntarily entered into a plea." It stated that it was taking jurisdiction over the child, and found that respondent's plea and testimony provided a preponderance of the evidence that termination of her parental rights was in the best interests of the child.
The paragraph to which respondent pleaded stated:
That [respondent] respectfully acknowledges that she is unable to provide a safe, stable, nonneglectful home environment for her child, and will be unable to do within a reasonable amount of time. She has come to the difficult and loving conclusion that the best interests of her child would be served through adoption. Therefore, she consents to the Court taking jurisdiction of her child above and termination of her parental rights.
However, rather than enter an order, the court stated that it was taking the matter under advisement, and at the hearing to address the father's rights, he would be willing to hear additional evidence regarding respondent's case and perhaps reconsider the termination. During the plea proceeding, the court stated:
Mom—mom's had some issues. Mom is here. I'm grateful for that. We'll go forward with mom. What I did say, is I will preserve her testimony today, and when we come back in at least 60-days to get the DNA done, mom has every right to go testify that things have changed in 60-days or if she can care for the child. . . .The prosecutor similarly advised respondent:
* * *
I will preserve the proofs—if we come back in 60 or 75 days and you want to testify, I still have to look at the entirety of all the testimony, but I've given you that option. But, it sounds like as of today this is the decision you want to make. (Emphasis added).
You understand that the court's taking this under advisement and we'll come back again, and you may in fact tell the judge that either you've done nothing or you finally got with the program, you're clean, you're testing. You understand—but—but that doesn't mean the judge is going to reverse his findings today. . . .
Some days later, respondent attempted to exercise the parenting time that was permitted to her under the prior orders of the court. Petitioner did not permit visitation based on its view that respondent's parental rights had been terminated at the April 11, 2017 hearing. On April 18, 2017, a referee heard oral argument on a motion regarding respondent's parenting time. The parties, except petitioner who was absent, disagreed on whether the April 11, 2017 proceeding in which the court took the matter under advisement, meant that services for respondent were to stop or were to continue until the continued hearing scheduled for June 16, 2017. The referee, expressed confusion as to what the trial judge had intended and referred the matter to the judge, who issued an order that parenting time was suspended until further order.
At the June 16, 2017 hearing, the trial court noted that the respondent father had signed an affidavit of parentage and was going to plead to the same paragraph as respondent mother had pled. After taking jurisdiction as to the father and finding grounds to terminate his rights, the court restated the statutory basis for termination of respondent's rights, found that termination was in the best interests of the minor child, and issued an order terminating respondent's rights.
During this hearing, the court was informed that the potential father did not show up for DNA testing.
On appeal, respondent first argues that she is entitled to withdraw her plea because it was not made knowingly, voluntarily, or intelligently. Respondent contends that the statements of the court on April 11, 2017, led her to believe that despite her admissions on that day, she would have an opportunity to again testify and/or argue at the June 16, 2017, and that the court would consider changing its findings and oral order. Based on this, she asserts that she did not understand the import of the April 11, 2017 plea and that she should be permitted to withdraw it. We disagree.
Because respondent did not move to withdraw her plea in the lower court, we review for plain error affecting her substantial rights. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). "[A]n error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Id. at 9.
First, there was no defect in the plea proceeding itself and the court properly advised respondent of her rights per MCR 3.971(B). The trial court advised respondent of the right to counsel, the right to a trial, the burdens of proof required for jurisdiction and the statutory grounds for termination, respondent's right to testify, the right to have witnesses appear and testify on her behalf, and the right to have witnesses subpoenaed by the court. Respondent stated that she understood those rights and that it was her choice to enter a plea in the case. The court also satisfied itself that respondent's plea was voluntary, knowing, and intelligent under MCR 3.971(C). The court asked respondent if she understood what she was doing and whether she understood the court and her attorney. Respondent stated that she did. The court also asked respondent if she was under the influence of illegal substances that could affect her judgment, and if any threats had been made to affect her decision. She responded "no' to both questions. Respondent clearly and unambiguously admitted to the petition and stated her agreement with termination.
Second, while we agree that the precise nature of the outcome on April 11, 2017 was unclear, the only issue was whether the termination decision was final at that time or whether the court would again consider respondent's parental rights at the continued hearing. However, to the degree that there was any question about the nature of the court's order, that was fully resolved at the June 16, 2017 hearing during which neither respondent nor her counsel asked to introduce any new evidence or make argument as to the termination. When the court ordered termination on that date and signed an order to that effect, there was no objection nor was there a motion for reconsideration. Thus, to the degree respondent pleaded with the belief that she could ask the court to continue her parental rights at the later hearing, her failure to do so demonstrated the continued validity of her plea. Respondent never sought to withdraw her plea at the trial level, instead raising it only on appeal. If she had not understood the nature of her plea, she surely had every opportunity to so advise the court on June 16, 2017, and her failure to do so demonstrate that the plea was understanding and voluntary. In other words, to the degree that respondent actually believed that on April 11, 2017, the court was leaving her an option to withdraw her plea, her failure to attempt to employ that option on the date she understood she could do so, demonstrates that to the degree there was any defect in the plea proceeding, it did not lead to a plea that was not knowing and voluntary.
Respondent also argues that the trial court abused its discretion in denying her motion to adjourn the entire case. Specifically, respondent argues that by denying her motion, "the trial court set in motion a confusing and irregular events regarding respondent's plea." We agree that confusion would have been avoided had the court granted the adjournment, but we do not find that the trial court abused its discretion in declining the request nor, for the reasons discussed above, that the refusal to adjourn resulted in a deprivation of respondent's procedural or constitutional rights. Thus, no relief is indicated.
MCR 3.923(G) governs adjournment of trials or hearings in child protective proceedings, and provides as follows:
(G) Adjournments. Adjournments of trials or hearings in child protective proceedings should be granted only
(1) for good cause,
(2) after taking into consideration the best interests of the child, and
(3) for as short a period of time as necessary.
We review a trial court's decision on a motion to adjourn for an abuse of discretion. In re Jackson, 199 Mich App 22, 28; 501 NW2d 182 (1993). "An abuse of discretion occurs when the trial court chooses an outcome that falls outside the range of principle outcomes." In re Utrera, 281 Mich App at 15 (quotation marks and citation omitted). --------
Affirmed.
/s/ Joel P. Hoekstra
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro