Opinion
No. 348043
12-26-2019
In re MARTAIN, 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 UNPUBLISHED Wayne Circuit Court Family Division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. 18-001015-NA Before: RIORDAN, P.J., and JANSEN and STEPHENS, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to her minor children, GM and MM, under MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), (k)(iii), (k)(iv), and (k)(v). We affirm.
I. RELEVANT FACTUAL BACKGROUND
In July 2018, petitioner filed a petition seeking termination of respondent's parental rights at the initial dispositional hearing. Shortly thereafter, for purposes of jurisdiction and statutory grounds for termination, respondent pleaded no contest to the allegations in the petition. Thereafter, the trial court assumed jurisdiction of the children and found that there existed statutory grounds to terminate her parental rights. It then concluded a hearing to determine the children's best interests, following which it found that termination of respondent's parental rights was in the children's best interests. Accordingly the trial court terminated respondent's parental rights in December 2018. This appeal followed.
II. VALIDITY OF NO CONTEST PLEA
Respondent first argues that the trial court violated her due-process rights by accepting her no-contest plea. She asserts that the plea was invalid because the trial court failed to confirm that it was knowingly made, and failed to ascertain the accuracy of the plea. We disagree.
Because respondent did not challenge the validity of her no-contest plea in the trial court, this issue is unpreserved and our review is limited to plain error affecting substantial rights. In re Ferranti, ___ Mich ___, ___; ___ NW2d ___ (2019) (Docket No 157907); slip op at 18, 22. "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008). After reviewing the record, we conclude that the alleged irregularities in the plea proceedings did not deny respondent due process or render her plea invalid.
A respondent may plead no contest to the original allegations in a petition. MCR 3.971(A). Before accepting a plea, a trial court must advise a respondent of her rights. MCR 3.971(B). Then, the trial court is required to ensure that the plea is voluntary and accurate. MCR 3.971 provides, in pertinent part:
(B) Advice of Rights and Possible Disposition. Before accepting a plea of admission or plea of no contest, the court must advise the respondent on the record or in a writing that is made a part of the file:
(1) of the allegations in the petition;
(2) of the right to an attorney, if respondent is without an attorney;
(3) that, if the court accepts the plea, the respondent will give up the rights to
(a) trial by a judge or trial by a jury,
(b) have the petitioner prove the allegations in the petition by a preponderance of the evidence,
(c) have witnesses against the respondent appear and testify under oath at the trial,
(d) cross-examine witnesses, and
(e) have the court subpoena any witnesses the respondent believes could give testimony in the respondent's favor;
(4) of the consequences of the plea, including that the plea can later be used as evidence in a proceeding to terminate parental rights if the respondent is a parent.
(5) if parental rights are subsequently terminated, the obligation to support the child will continue until a court of competent jurisdiction modifies or terminates the obligation, an order of adoption is entered, or the child is emancipated by operation of law. Failure to provide required notice under this subsection does not affect the obligation imposed by law or otherwise establish a remedy or cause of action on behalf of the parent.
(C) Voluntary, Accurate Plea.
(1) Voluntary Plea. The court shall not accept a plea of admission or of no contest without satisfying itself that the plea is knowingly, understandingly, and voluntarily made.If the trial court violates the provisions of MCR 3.971(C), then assumption of jurisdiction over a child on the basis of a plea may violate due process. In re Wangler/Paschke, 498 Mich 911, 911; 870 NW2d 923 (2015).
(2) Accurate Plea. The court shall not accept a plea of admission or of no contest without establishing support for a finding that one or more of the statutory grounds alleged in the petition are true, preferably by questioning the respondent unless the offer is to plead no contest. If the plea is no contest, the court shall not question the respondent, but, by some other means, shall obtain support for a finding that one or more of the statutory grounds alleged in the petition are true. The court shall state why a plea of no contest is appropriate.
Respondent first argues that her rights were violated because the trial court did not ensure that her plea was knowingly made. The record does not support this assertion. Respondent's appointed counsel informed the court that respondent would make certain stipulations and admissions. The court then advised respondent of her rights as required under MCR 3.971(B) and asked respondent whether she understood each of her rights. In response to the court's questioning, respondent indicated that she had reviewed the petition and understood that petitioner was seeking to terminate her parental rights, and that she understood that by admitting to certain facts, the court would take jurisdiction of the children and would find that there existed grounds for termination of her parental rights. Respondent also signified that she understood that she would be giving up her right to a trial. Respondent agreed that she was reserving her right to contest termination of her parental rights on the basis that termination was not in her children's best interests. Respondent then, in response to the court's questioning, indicated that she understood that she was giving up the right to contest jurisdiction and the existence of grounds to terminate her parental rights.
The trial court went on to ask respondent if she understood that she was giving up the right to a trial on jurisdiction and the existence of statutory grounds, to which respondent replied that she did. Respondent indicated that she understood she was giving up the right to have petitioner prove the allegations in the petition for jurisdiction by a preponderance of the evidence. Similarly, she indicated that she understood that she was giving up the right to have petitioner prove grounds for termination of her parental rights by clear and convincing evidence. Respondent also agreed that she understood that she was giving up the right to have witnesses appear and testify under oath. When the court asked respondent if she understood that her plea would be used in the request to terminate her parental rights, respondent replied in the affirmative. Respondent then agreed that she had not been promised anything and that no one had threatened her into offering the plea.
Notwithstanding the foregoing, respondent asserts that because the plea was premised on the content of GM's medical records, and she had not reviewed those records, her plea could not have been knowingly made. Respondent's argument is disingenuous. Although the medical records were not available in the court room on August 6, 2018, when respondent tendered her plea, she was clearly aware of the relevant content of those records. The petition specifically referenced the medical records and notations made therein. At the July 13, 2018 preliminary hearing, the foster care worker testified with specificity to the events at both Children's Hospital of Michigan and the University of Michigan, and the opinions of the medical professional that GM's injuries were the result of nonaccidental trauma, i.e., abuse. Finally, at the actual plea hearing, respondent's attorney acknowledged the content of the medical records. When respondent entered her no-contest plea, she clearly knew the content of the medical records despite the fact that they were unavailable at the August 6, 2016 hearing.
Moreover, at the time the court took respondent's plea, it was respondent and her counsel who suggested that they would stipulate to the medical records once they were available. Counsel acknowledged that the records contained statements by the doctors finding intentional abuse and then stated: "Whatever the medical records are from Children's Hospital, we are prepared to stipulate to, and I believe that's enough to give the Court jurisdiction on grounds and jurisdiction (sic)." Then, the court advised respondent that she would have the opportunity to withdraw her "preliminary plea" after she reviewed the records. By the time the matter resumed on November 2, 2018, the records were clearly available. During that hearing, the court briefly went off the record. When the matter resumed on the record minutes later, the court indicated that while off the record, the parties had discussed events at prior proceedings and, on that day, the parties were present for the best-interest hearing. The court indicated that it had previously found jurisdiction and statutory grounds for termination. Shortly thereafter, the court and the parties discussed the fact that a no-contest plea had been entered that covered both jurisdiction and statutory grounds for termination. At no time did respondent or her counsel object or express a desire for respondent to withdraw her plea after having had an opportunity to review the medical records.
Based on our review of the record, we conclude that the events unfolded in a manner suggested and formulated by respondent. Then, when given the opportunity, respondent declined to pursue an alternative path. "A party may not take a position in the trial court and subsequently seek redress in an appellate court that is based on a position contrary to that taken at trial." Holmes v Holmes, 281 Mich App 575, 587-588; 760 NW2d 300 (2008) (quotation marks and citation omitted). In other words, a "[r]espondent may not assign as error on appeal something that she deemed proper in the lower court because allowing her to do so would permit respondent to harbor error as an appellate parachute." In re Hudson, 294 Mich App 261, 264; 817 NW 2d 115 (2011). On this record, there is no support for respondent's claim that her plea was not knowingly made because the medical records were not available at the August 6, 2018 hearing. Accordingly, respondent has not shown a plain error affecting her substantial rights.
Respondent next argues that the trial court erred by accepting her no-contest plea because the court did not establish a factual basis for the plea. We again disagree. Under MCR 3.971, a court is charged with the responsibility of ascertaining the accuracy of a plea. That is, the court cannot accept a plea without first establishing support for a finding that one or more of the statutory grounds alleged in the petition are true. MCR 3.971(C)(2). Pursuant to MCR 3.971(C)(2), when a respondent enters a no-contest plea, the trial court is not to question the respondent, but should obtain support for its acceptance of the plea "by some other means." In this case, respondent stipulated to using GM's medical records for purposes of establishing the factual basis for the plea. These medical records indicated that GM had sustained multiple fractures, that respondent was unable to explain the injuries, and that, in the opinion of medical personnel, the fractures were the result of nonaccidental trauma. These records, which were agreed to by respondent, provided the necessary factual support for finding "that one or more of the statutory grounds alleged in the petitioner [were] true." MCR 3.971(C)(2).
Respondent contends that because the medical records were unavailable at the August 6, 2018 plea hearing, the court did not comply with the requirements of MCR 3.971(C)(2). However, the court did not formally accept the plea on that day. Instead, the court indicated that it was preserving the preliminary matters, i.e., the advice of rights, at the August 6, 2018 hearing. By the November 2, 2018 hearing, the medical records were available and admitted into evidence. Then, the court formally accepted the plea in its December 5, 2018 order, wherein it acknowledged that the parties had stipulated that the records were sufficient to substantiate the accuracy of respondent's plea.
Respondent suggests that the admission of the medical records during what was characterized as the best-interest phase was improper and, somehow, rendered the records "unavailable" for purposes of the jurisdictional phase. We find no merit to this position. There are two primary phases to a child protective proceeding, adjudication and disposition. A trial court must first determine whether it can exercise jurisdiction. In re Sanders, 495 Mich 394, 405; 852 NW2d 524 (2014). If jurisdiction is proper, then the court has the authority to determine what further action is necessary to ensure the well-being of the child during the dispositional phase. Id. at 406. Although the court went through the preliminary matters related to the plea, orally found jurisdiction and statutory grounds, then moved into taking best-interest evidence, it did not formally accept the plea and make the relevant findings until December 5, 2018. In that December order, the court first found grounds for jurisdiction before moving to disposition. Consequently, the trial court did not improperly combine the adjudication and dispositional phases. That is, it did not move to disposition before acquiring jurisdiction. Moreover, that the medical records were formally admitted while taking best-interest testimony did not render them unavailable for purposes of deciding jurisdiction. It can be presumed that the court would use the evidence for a proper purpose and not use it for an improper purpose. People v Parker, 319 Mich App 664, 672-673; 903 NW2d 405 (2017).
In sum, the trial court did not err by accepting respondent's no-contest plea. There were sufficient indicia for the court to satisfy itself that the plea was knowingly, understandingly, and voluntarily made. Moreover, the court properly accepted the plea after establishing factual support for the plea. Under these circumstances, respondent has failed to demonstrate that her no-contest plea was invalid.
III. STATUTORY GROUNDS
Next, respondent argues that because her plea was invalid, the trial court erred by exercising jurisdiction over the children and, thereafter, finding statutory grounds to terminate her parental rights. As indicated earlier, there were no fatal flaws in the plea proceedings that rendered respondent's plea invalid and thereby precluded the court from assuming jurisdiction and proceeding to disposition.
Because petitioner sought termination of respondent's parental rights at the initial dispositional hearing, MCR 3.977(E) applied to the proceedings. This court rule provides, in pertinent part:
The court shall order termination of the parental rights of a respondent at the initial dispositional hearing held pursuant to MCR 3.973, and shall order that additional efforts for reunification of the child with the respondent shall not be made, if
(1) the original, or amended, petition contains a request for termination;
(2) at the trial or plea proceedings, the trier of fact finds by a preponderance of the evidence that one or more of the grounds for assumption of jurisdiction over the child under MCL 712A.2(b) have been established;
(3) at the initial disposition hearing, the court finds on the basis of clear and convincing legally admissible evidence that had been introduced at the trial or plea proceedings, or that is introduced at the dispositional hearing, that one or more facts alleged in the petition:
(a) are true, and
(b) establish grounds for termination of parental rights under MCL 712A.19b(3)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), or (n);
(4) termination of parental rights is in the child's best interests.
The petition sought jurisdiction under MCL 712A.2(b)(1) and (2), which permit a trial court to exercise jurisdiction over a minor child in the following circumstances:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. . .The medical records, to which respondent stipulated, contained information concerning GM's injuries and the medical diagnosis that the injuries were caused by nonaccidental trauma. Specifically, the records established that GM had experienced a fracture of the left clavicle and three fracture ribs. Moreover, examining physicians concluded that these injuries were indicative of physical abuse because of the child's age, level of development, and that no history had been provided to explain the injuries. The medical records established factual support for a finding that respondent had not provided proper care and custody for her infant child. And considering that respondent had denied any knowledge of the manner in which GM was injured and was unable to fathom the possibility that a family member injured the child, there was factual support for the conclusion that the children would be at substantial risk of harm in respondent's care. The court considered the nature of the injuries, respondent's assertion that she had no idea how the injuries occurred, and the opinions of the medical professionals to conclude that the children came within the court's jurisdiction pursuant to MCL 712A.2b(1) and (2). The trial court did not err when it asserted jurisdiction over the children.
(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.
Furthermore, the court did not err by finding statutory grounds to terminate respondent's parental rights. Respondent's parental rights were terminated pursuant to MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), (k)(iii), (k)(iv), and (k)(v). To begin with, respondent pleaded no contest to the existence of a statutory ground for termination. Given her no-contest plea, she may not now argue on appeal that there was not clear and convincing evidence to support termination of her parental rights. In re Hudson, 294 Mich App at 264. Even if this argument were not waived, a factual basis existed to terminate respondent's parental rights.
Although respondent pleaded no contest, the trial court was still required to establish factual support for a finding that one or more of the statutory grounds in the petition were true and established grounds for termination of parental rights under MCL 712A.19b(3). See MCR 3.971(C)(2) and MCR 3.977(E)(3). The factual support for respondent's plea was established through the stipulated medical records. Again, these records established that four-month-old GM suffered three fractured ribs and a fractured clavicle. Moreover, the rate of healing indicated that the fractures were at least 10 to 14 days old at the time of the May 8 and May 9, 2018 imaging. On May 8, 2018, respondent reported to her pediatrician's office that GM had a bump on his right shoulder and that he screamed in pain when touched. Testing and evaluation ruled out birth trauma, metabolic bone disease, and genetic bone disorder as sources of GM's fractures. Indeed, the medical professionals concluded that the child's injures were indicative of abuse. While GM had been left in the care of two other family members, respondent and the child's father were the primary care givers. Neither parent was able to provide an explanation for GM's severe injuries.
The foregoing evidence of abuse and neglect was sufficient to enable the court to find statutory grounds to terminate respondent's parental rights. Moreover, it is inconsequential that the medical records did not establish the identity of the perpetrator of the abuse. In In re Ellis, 294 Mich App 30, 33-34; 817 NW2d 111 (2011), this Court held that "[w]hen there is severe injury to an infant, it does not matter whether respondents committed the abuse at all, because under these circumstance there was clear and convincing evidence that they did not provide proper care." Accordingly, the Court held in that case that "termination of parental rights under MCL 712A.19b(3)(b)(i), (b)(ii), (j), and (k)(iii) [was] permissible even in the absence of definitive evidence regarding the identity of the perpetrator when the evidence [did] show that the respondent or respondents must have either caused or failed to prevent the child's injuries." Id. at 35-36.
Further, the fact that GM was also left in the care of two other relatives besides his parents did not preclude the trial court from finding factual support for a statutory ground for termination. The Court in In re Ellis found persuasive and adopted the reasoning of this Court's unpublished decision in In re Armstrong, unpublished per curiam opinion of the Court of Appeals, issued August 15, 2006 (Docket No. 266856). In re Ellis, 294 Mich App at 34-35. In In re Armstrong, the abused infant had several caregivers and the actual perpetrator was unknown. This Court, nevertheless, "found that termination of the respondents' parental rights was appropriate, reasoning that the multitude of injures over an extended period showed that the parents could have prevented the abuse but failed to do so and that the child would likely be injured again if returned to the care of either." In re Ellis, 294 Mich App at 34-35. In this case, when initially imaged, GM's clavicular fracture did not demonstrate the same amount of healing as the rib fractures. Consequently, the injuries may or may not have occurred at the same time. Thus, the evidence supported the possibility that GM was subject to more than one assault and that respondent was either the perpetrator or that she failed to protect her child. Id. at 35. To the extent that the evidence could be subject to different interpretations, a factual basis for a plea exists if an inculpatory inference can be drawn from the evidence offered in support of a plea. See People v Fonville, 291 Mich App 363, 377; 804 NW2d 878 (2011).
Finally, we note that there was evidence that respondent delayed in obtaining medical treatment for GM. Respondent reported on May 8, 2018 a bump on GM's shoulder that, when touched, caused the infant to scream in pain. The evidence further established that the fractures were at least two weeks old. Consequently, it can be inferred that respondent delayed at least two weeks seeking treatment for her child despite that the infant was in a great deal of pain.
In light of the foregoing, the trial court did not clearly err when it exercised jurisdiction over the children and, thereafter, found clear and convincing evidence to support the existence of the statutory grounds for termination.
IV. BEST INTERESTS
Finally, respondent argues that the trial court erred by finding that termination of her parental rights was in the children's best interests. Again, we disagree.
"If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of the parental rights and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). The court may consider several factors when deciding if termination of parental rights is in a child's best interests, including the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability and finality, and the advantages of a foster home over the parent's home. In re Olive/Metts, 297 Mich App 35, 42; 823 NW2d 144 (2012). The court may also consider psychological evaluations, the child's age, continued involvement in domestic violence, and a parent's history. In re Jones, 286 Mich App 126, 131; 777 NW2d 728 (2009). Whether termination of parental rights is in a child's best interests must be proven by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). This Court reviews for clear error a trial court's finding that termination of parental rights is in a child's best interests. In re Jones, 286 Mich App at 129.
Initially, respondent argues that the trial court improperly considered hearsay evidence during the best-interest phase of the proceedings. Again, this assertion grows out of respondent's initial premise that her plea was invalid. Because we have concluded that there were no fatal irregularities in the plea proceedings, the trial court clearly did not err when it admitted hearsay testimony. A trial court is not limited to legally admissible evidence when deciding whether termination is in a child's best interests. MCR3.977(E)(4).
When termination of parental rights is sought at the initial disposition, legally admissible evidence is required to establish statutory grounds to terminate parental rights. MCR 3.977(E)(3). But the court rules contain no similar requirement for determining best interests under MCR 3.977(E)(4). --------
We conclude that the trial court did not clearly err when it found that termination of respondent's parental rights was in the children's best interests. GM suffered multiple fractures that were indicative of abuse. All other alternative causes for the fractures were ruled out and respondent was unable to provide an explanation for the child's injuries. During her psychological evaluation, respondent still had no suspicions and could not imagine that any of the family members who cared for GM were capable of injuring the child. Moreover, there was evidence that respondent waited at least two weeks, during which time the child would have been exhibiting pain, to seek medical care for GM's injuries. Under the foregoing circumstances, it is clear that respondent was not capable of protecting her children and that they would be at risk of further harm in her care.
At the time of the termination hearing, the children were in the care of their maternal grandmother. Even though placement with a relative weighs against termination, and the fact that a child is living with relatives must be considered, a trial court may terminate parental rights in lieu of placement with relatives if it finds that termination is in the child's best interests. In re Olive/Metts, 297 Mich App at 43. In this case, the trial court acknowledged the relative placement, but still found that termination of respondent's parental rights was in the children's best interests. The court considered respondent's history of mental illness and her lack of candor regarding this history. The court also acknowledged that MM had lived most of her life with the maternal grandmother. The court specifically found that despite the placement with relatives, termination of parental rights was in the children's best interests. It concluded that this was the best avenue by which these two very young children would be afforded the greatest opportunity to achieve permanency and long-term stability. Considering this, the trial court did not clearly err when it determined that termination of respondent's parental rights was in the children's best interests despite that they were in relative placement with their maternal grandmother.
Affirmed.
/s/ Michael J. Riordan
/s/ Kathleen Jansen
/s/ Cynthia Diane Stephens