Opinion
No. 334781
03-14-2017
In re JIMERSON, Minor.
UNPUBLISHED Gogebic Circuit Court Family Division
LC No. 15-000010-NA Before: RIORDAN, P.J., and METER and FORT HOOD, JJ. PER CURIAM.
Respondent appeals as of right from an order of the trial court terminating her parental rights to her son, DKJ, pursuant to MCL 712A.19b(3)(a)(ii) (desertion for 91 or more days), MCL 712A.19b(3)(g) (failure to provide proper care or custody), and MCL 712A.19b(3)(j) (reasonable likelihood of harm). We affirm.
Respondent first argues that the trial court clearly erred in finding (1) that statutory grounds existed to warrant terminating her parental rights, and (2) that termination is in DKJ's best interests. We disagree.
We review the trial court's determinations regarding the existence of statutory grounds to terminate respondent's parental rights and DKJ's best interests for clear error. In re Trejo Minors, 462 Mich 341, 356-357, 373; 612 NW2d 407 (2000).
In re Trejo Minors was superseded by statute on other grounds as recognized by In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013).
Under MCL 712A.19b(3)(a)(ii), clear and convincing evidence needed to be produced to demonstrate that respondent "has deserted [DKJ] for 91 or more days and has not sought custody of [DKJ] during that period." This Court has defined desertion as "an intentional or willful act." In re B & J, 279 Mich App 12, 18-19 n 3; 756 NW2d 234 (2008). Petitioner filed a petition to terminate respondent's parental rights on June 1, 2016. At the August 24, 2016 termination hearing, respondent testified that she had not seen DKJ since June 8, 2015. Indeed, respondent admitted to being absent from the trial court proceedings, explaining that she "stayed hidden" because she was pregnant and had a history of high risk pregnancies. Respondent also noted that she did not want to risk losing custody of the child that she was pregnant with during the lower court proceedings. There is also nothing in the record to suggest that respondent complied with the court-ordered service plan or attended any trial court proceedings between her release from the Gogebic County jail on June 24, 2015, and the filing of the termination petition. While respondent argues that she mistakenly thought that DKJ's father was cooperating with petitioner and would take custody of the child, we do not find this assertion persuasive. The clear fact remains that respondent did not maintain regular, consistent contact with petitioner or participate in the lower court proceedings or a court-ordered service plan. Therefore, the trial court correctly found that respondent "deserted" and failed to "s[eek] custody" of DKJ "for 91 or more days" before the filing of the termination petition. MCL 712A.19b(3)(a)(ii). Where the trial court need only find one statutory ground to terminate respondent's parental rights, In re Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d 144 (2012), we need not consider the other two statutory grounds relied on by the trial court.
We also reject respondent's assertion that termination was not in DKJ's best interests. The best-interest inquiry is informed and guided by the statutory best-interest factors, as developed by caselaw. Id. at 41-42 In the first eight months of his life, DKJ was cared for by his father, his great-aunt, and then respondent. DKJ was removed from respondent's care when he was approximately eight months old and placed in foster care following an incident where the police found DKJ living with respondent and another man in a hotel room where drugs were being sold. At the time of the termination of respondent's parental rights, DKJ was residing in a foster home and thriving, with all of his needs being met. Respondent argues that she had a fundamental liberty interest in the companionship, care, custody and management of DKJ and that it was in DKJ's best interests to be in the care of a natural parent. However, the statutory scheme governing child protection proceedings recognizes that there will be times when keeping a child with a parent is not in the child's best interests. Such is the case here, where the record evidences respondent's refusal to comply with court-ordered services, an inattentiveness to the process, and a general lack of interest in DKJ's safety and welfare. Where respondent suggests in her brief on appeal that her liberty interest in raising her child has been violated, it is well-settled that once petitioner has successfully presented clear and convincing evidence to support termination under at least one statutory ground, "the liberty interest of the parent no longer includes the right to custody and control of the children." In re Trejo, 462 Mich at 355 (citation omitted). Therefore, the trial court did not err in concluding that termination of respondent's parental rights was in DKJ's best interests.
In her brief on appeal, respondent asserts that the trial court erred in not relying on a series of factors suggested in an August 22, 2013 memorandum from the State Court Administrative Office (SCAO) to judges and court administrators throughout the state. This memorandum clearly suggests that trial courts "may . . . wish to consider" the enumerated factors and emphasizes the fact-specific nature of the best interest inquiry. Under the circumstances of this case, we are satisfied that the trial court undertook a proper best interest analysis.
While respondent claims that there is no record evidence that she was selling the drugs, that she was not convicted for selling drugs, and that her role in this arrangement was unclear, the fact remains that she placed her infant child in an unsafe situation by having him in close physical proximity to the sale of drugs.
Finally, respondent argues that she was deprived of her due process rights throughout the lower court proceedings. Specifically, the thrust of respondent's argument is that (1) that petitioner failed to provide proper notice to respondent during the lower court proceedings and (2) that she was not provided with services and petitioner did not take steps to reunify her with her child. We disagree.
We review this as "an unpreserved claim of constitutional error . . . for plain error affecting substantial rights." In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014).
The Fourteenth Amendment to the United States Constitution and Article I, § 17 of the Michigan Constitution bar the state from depriving persons of life, liberty, or property without due process of law. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009) (CORRIGAN, J.). Parents have a fundamental liberty "interest in the companionship, care, custody, and management of their children[.]" In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003). But a "parent's right to control the custody and care of her children is not absolute." In re Sanders, 495 Mich 394, 409-410; 852 NW2d 524 (2014). "[T]he state has a legitimate interest in protecting the moral, emotional, mental, and physical welfare of [a] minor and in some circumstances neglectful parents may be separated from their children." Id. Throughout child protection proceedings, to comply with procedural due process, parents must be given notice and an opportunity to be heard. In re Rood, 483 Mich at 92 (CORRIGAN, J.). The type of notice due must be " 'reasonably calculated, under all the circumstances, to apprise [parents] of the pendency of the action and afford them an opportunity to present their objections.' " Id. quoting Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950).
Our review of the record confirms that both petitioner and the trial court undertook great effort to provide respondent notice of the progress of the case, but respondent's self-imposed absence undermined those efforts. According to the trial court, respondent essentially absconded from the trial court proceedings, as well as the state of Michigan, during the lower court proceedings. Petitioner attempted to locate respondent on multiple occasions by United States mail, telephone, social media, and by contacting respondent's family members. Additionally, the trial court attempted to provide respondent with notice of hearings. Respondent was provided with notice by way of summons and orders to appear by United States mail on multiple occasions to multiple addresses. The trial court also served respondent by way of publication in two newspapers in two states, Michigan and Wisconsin. Notice was also provided to respondent's counsel. When petitioner filed a petition to terminate respondent's parental rights, she was again served by publication. As noted above, we are cognizant of the fact that respondent conceded in the trial court that she was hiding during these proceedings, and in her brief on appeal in this Court, she acknowledges that she was "willfully absent from her child's life for approximately one year" during the lower court proceedings. Under these circumstances, the record confirms that petitioner acted reasonably to provide respondent with notice and an opportunity to be heard. In re Rood, 483 Mich at 92 (CORRIGAN, J.).
Respondent also claims that the trial court failed to investigate the condition of her home in Wisconsin to determine if she could provide a suitable home for DKJ. However, from the record it is unclear where respondent specifically resided, and there is not a confirmation in the record that the Wisconsin home respondent refers to was indeed her permanent residence. --------
To the extent that respondent also claims that petitioner did not adequately investigate relative placements for DKJ, the record does not support this contention. The child's great-aunt was contacted, but petitioner determined that she was not a suitable placement. Another relative respondent named did not respond to petitioner's inquiries. Therefore, we are not persuaded by respondent's argument that petitioner did not take adequate and reasonable steps to inquire into a relative placement for DKJ. Where respondent also claims that petitioner did not undertake efforts to reunite her with her son before seeking termination, this assertion is also unavailing. Before seeking termination, the petitioner generally must make reasonable efforts to reunite parent and child. MCL 712A.19a(2). Accordingly, petitioner was required to "make reasonable efforts to rectify the conditions that caused [DKJ's] removal by adopting a service plan." In re Fried, 266 Mich App 535, 542; 702 NW2d 192 (2005). Despite numerous attempts made by petitioner and the trial court, respondent failed to participate during the pendency of the lower court proceedings, a period of approximately 14 months. While respondent contends that petitioner ought to have used additional methods to attempt to locate her, the fact that additional methods could have been attempted does not mean that petitioner failed to satisfy its duty to "make reasonable efforts" to reunite respondent and DKJ. Moreover, respondent bears responsibility for her lack of participation in services. A review of the record confirms that respondent was well aware of the lower court proceedings but did not make sustained efforts to contact petitioner or the trial court to pursue needed services and to track the progress of the case involving her infant child. In fact, she chose not to do so to avoid losing custody of the child that she was pregnant with at the time of the lower court proceedings. Further, case law is clear that petitioner and a respondent have complementary responsibilities, with respondent's being to attend and benefit from services. In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012). The record demonstrates that petitioner made reasonable efforts to reunify respondent and DKJ by adopting a service plan tailored to respondent's needs and then repeatedly reaching out to respondent to engage her in services. Respondent simply failed to respond and avail herself of those services. In sum, the trial court found, and we concur, that termination of respondent's parental rights was necessary and that termination was in DKJ's best interests.
Affirmed.
/s/ Michael J. Riordan
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood