Opinion
No. 348714
12-26-2019
In re HENDERSON/DIXON, 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 UNPUBLISHED Wayne Circuit Court Family Division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. 15-519449-NA Before: MURRAY, C.J., and SAWYER and GLEICHER, JJ. MURRAY, C. J. (concurring in part and dissenting in part).
I concur with the majority opinion's decision to affirm the termination of respondent mother's rights to KAD, but dissent from its decision to reverse the termination of respondent's parental rights to KMH, KAH, and KRH. Instead, I would affirm the termination of respondent's parental rights to each of these children.
My principal disagreement with the majority opinion comes down to the simple fact that respondent's arguments regarding a deprivation of her substantive due-process rights is an issue which, as the majority notes, is unpreserved. Because it is unpreserved, respondent's argument is subject to plain error review. See In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). The majority also recognizes this fact. But where we depart is in the conclusion that, because respondent has not provided any facts upon which a conclusion can be made that petitioner sought the termination of guardianships for the three older children, or did so improperly, a reversal and remand for further findings is necessary. I would, instead, conclude that respondent has failed to meet her burden of establishing plain error because without the requisite evidence (and no one has suggested that respondent has come forward with any evidence), plaintiff has simply failed to meet her burden of proving that an error occurred. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). It is, after all, respondent's burden to establish all three requirements for proving plain error, and the acknowledgment by the majority that there is no evidence that petitioner filed the petition in the probate court to end the guardianships precludes appellate relief. It was incumbent upon respondent to produce some type of evidence—and not just mere conjecture—to prove that an error occurred, i.e., that the State was the petitioner seeking to end the guardianships over the three older children for the sole purpose of seeking to terminate respondent's parental rights. But as the majority recognizes, respondent has not done so. For this reason, I would simply affirm the trial court's order.
Respondent cites only two pages of the transcript from the July 20, 2018 hearing to support the argument that petitioner sought termination of the guardianships. But the pages cited contain no testimony regarding who sought termination of these children's guardianships. --------
/s/ Christopher M. Murray