Opinion
No. 334284
02-21-2017
In re W. JAGODZINSKI, Minor.
UNPUBLISHED Sanilac Circuit Court Family Division
LC No. 16-035990-NA Before: JANSEN, P.J., and BECKERING and GADOLA, JJ. PER CURIAM.
Respondent, D. Jagodzinski, appeals as of right the trial court's order terminating his parental rights to his minor son based on his voluntary release of his rights. We affirm.
Petitioner, the Department of Health and Human Services, filed a petition alleging that respondent sexually abused his son and requested termination of respondent's parental rights at the initial dispositional hearing. Criminal sexual conduct charges were also filed against respondent. The trial court took jurisdiction over the child after respondent pleaded no contest to certain allegations in the petition.
At the scheduled dispositional hearing, respondent agreed to voluntarily release his parental rights. In response to questioning by the trial court, respondent confirmed that he was acting of his own free will and understood that he could not be forced to sign the release. He acknowledged that no one had threatened him or promised him anything in exchange for signing the release. In response to the court's statement that he was giving up his rights voluntarily and permanently, respondent stated, "Okay." After the court accepted the release, it signed an order terminating respondent's parental rights on the basis of the release.
Respondent then moved for rehearing, arguing that, although he stated that no one promised him anything in exchange for the release, he in fact released his parental rights in exchange for a reduced sentence in his pending criminal case. In addition, respondent alleged that he was not aware that if he released his parental rights to his son, the release could be used as a basis for terminating his parental rights to his other child. Respondent also argued that he was not properly informed of his rights, citing the fact that he responded, "Okay," and "No," to some questions and the fact that the trial court once told respondent that he had to verbally say, "Yes." Respondent contended that validating the release would result in manifest injustice because the allegations in the petition and the criminal case were untrue. The trial court denied the motion, concluding that respondent knowingly and voluntarily released his parental rights and that the release complied with the applicable statutes and court rule.
We review de novo the issue of the validity of a release of parental rights. In re Buckingham, 141 Mich App 828, 836-837; 368 NW2d 888 (1985). During a child protective proceeding, a parent may voluntarily release his or her parental rights to a child pursuant to the Adoption Code, MCL 710.21 et seq. Id. at 834. To be valid, such a release must comply with the Adoption Code, which provides the following:
A release by a parent or a guardian of the child shall not be executed until after the investigation the court considers proper and until after the judge, referee, or other individual authorized in subsection (2) has fully explained to the parent or guardian the legal rights of the parent or guardian and the fact that the parent or guardian by virtue of the release voluntarily relinquishes permanently his or her rights to the child; and, if the child is over 5 years of age, the court has determined that the child is best served by the release. [MCL 710.29(7).]
On appeal, respondent argues that he did not knowingly and voluntarily release his parental rights because he executed the release in exchange for a plea deal in his pending criminal case, his rights were not sufficiently explained to him, and the referee provided incorrect and misleading information about his rights. Respondent's arguments lack merit.
The record discloses that the trial court began its inquiry by informing respondent that no one could force him to release his parental rights. When the court asked if he was acting of his own free will, respondent answered, "Yes." Respondent said nothing about an alleged plea deal in his pending criminal case. The court explained that by releasing his parental rights, respondent would be relinquishing his legal right to visit the child and his ability to participate in and make decisions concerning the child, including decisions regarding the child's education, discipline, medical care, and whereabouts. Respondent indicated that he understood. Respondent answered in the affirmative when asked if he had had an adequate chance to speak with counsel before making the decision to release his parental rights. Respondent then denied that he had been threatened or promised anything in exchange for the release, again saying nothing about an alleged plea deal with the prosecution. Thereafter, the court reviewed the statements on the release form. When asked if he understood the statement that his signature meant that he was voluntarily and permanently giving up his parental rights respondent replied, "Okay." Contrary to respondent's assertions, this response does not suggest that respondent was confused or did not understand that he was voluntarily and permanently giving up his parental rights. Indeed, respondent did not ask for further clarification of that statement. Although respondent initially replied, "No," when asked if he understood the statement that he had the right to request rehearing within 21 days of entry of an order terminating his parental rights, respondent's counsel and the court then explained the provision, and respondent indicated that he understood. Respondent does not argue that he still did not understand the statement after it was explained to him. We also reject respondent's suggestion that the court attempted to coerce him into signing the release by once telling him that he had to say, "Yes." The record shows that the court made this statement after respondent nodded in response to a question; the court was advising respondent that he had to answer verbally so that his answer could be recorded.
Although respondent contends that he agreed to release his parental rights in exchange for a plea agreement in his criminal case, he did not inform the trial court of any alleged agreement, in spite of being asked on two occasions if he had been promised anything in exchange for executing the release. Further, although respondent correctly points out that the voluntary release of his parental rights could have future consequences if he faces termination of his parental rights to his other child because MCL 712A.19b(3)(m) authorizes termination if a parent voluntarily terminates his or her rights to another child and any of several aggravating circumstances exist, respondent was not at risk for termination of his parental rights to his other child when he signed the release. Accordingly, the trial court was not obligated to inform him of a consequence that was only theoretical at the time.
The trial court made the inquiry required by the Adoption Code, and respondent's answers indicate that he understood the nature of his actions. Respondent has pointed to nothing that calls into question the validity of his release of his parental rights.
Next, respondent argues that the trial court abused its discretion by denying his motion for rehearing. Respondent contends that the trial court should have granted the motion for rehearing to consider his allegation that he agreed to release his parental rights as part of a plea agreement in his criminal case. We disagree.
We review a trial court's decision regarding a motion for rehearing for an abuse of discretion. Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000). MCR 3.806(B) provides the following:
The court must base a decision on whether to grant a rehearing on the record, the pleading filed, or a hearing on the petition. The court may grant a rehearing only for good cause. The reasons for its decision must be in writing or stated on the record.
Respondent's motion for rehearing relied nearly exclusively on the allegation that the trial court had not considered the alleged plea deal before accepting the release of respondent's parental rights. However, the trial court correctly noted that the record made no mention of the alleged agreement and respondent did not mention the agreement despite being asked on two occasions if anyone had promised him anything to persuade him to sign the release. Respondent had the opportunity and obligation to raise the alleged agreement if he wanted the trial court to consider it. Had respondent done so, the prosecutor could have addressed the existence of any agreement, and the trial court could have resolved the matter at that time. Respondent states no reason for his failure to raise the issue before the trial court at the hearing. Therefore, the trial court did not abuse its discretion by concluding that respondent failed to show good cause for granting the motion for rehearing. MCR 3.806(B).
Affirmed.
/s/ Kathleen Jansen
/s/ Jane M. Beckering
/s/ Michael F. Gadola