Opinion
No. 333662
02-21-2017
In re MAUTI, Minors.
UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2015-831882-NA Before: JANSEN, P.J., and BECKERING and GADOLA, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating his parental rights to his minor children under MCL 712A.19b(3)(g) (failure to provide proper care and custody) and (j) (reasonable likelihood of harm). We affirm.
Respondent has a history of mental health issues and domestic violence. In 2014, respondent assaulted his wife while she was holding their infant daughter. He pleaded guilty to a charge of domestic violence as a result of the incident and was sentenced to 18 months' probation. The following year, respondent murdered his wife and killed the family dog while the children were present in the home. Respondent admitted to the police that he murdered his wife after they came to the house and found her body in the garage. Thereafter, the Department of Health and Human Services (DHHS) filed a petition for permanent custody of respondent's two children. Following a termination hearing, the trial court found that sufficient evidence supported terminating respondent's parental rights, and that termination was in the best interests of the children. Respondent now appeals that decision.
"In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). A trial court must also find by a preponderance of the evidence that termination is in a child's best interests before it can terminate parental rights. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). We review a trial court's findings of fact for clear error. In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). "A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made." Id.
The trial court terminated respondent's parental rights under MCL 712A.19b(3)(g) and (j), which provide the following:
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
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(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.
Termination of respondent's parental rights was proper under MCL 712A.19b(3)(g) because respondent was unable to care for his children due to his mental health issues and incarceration. Further, termination of parental rights was proper under MCL 712A.19b(3)(j) because respondent's history of committing violent and criminal acts demonstrates that the children would be at a significant risk of harm in his care. Respondent had a history of substance and alcohol abuse and severe mental health issues, which led him to screw the front door of his home shut and murder the children's mother in the family home while the children were in bed. He also admitted to killing the family dog. Respondent never benefited from the services he was provided while he was on probation following the 2014 domestic violence incident with the children's mother and is now unavailable to parent his children because of his most recent arrest and incarceration.
Respondent argues that the trial court disregarded the fact that the children's extended family was willing to provide them with a stable home. He argues that, if the trial court had granted either of the guardianship requests made by the children's grandparents, the children would have been provided with proper care and custody without needing to terminate his parental rights. This argument is unpersuasive. The court explained in a lengthy opinion why it was necessary to terminate respondent's parental rights to safeguard the children in this case. The children needed more than an impermanent, unstable guardianship, given the trauma they had already endured. Only termination of respondent's parental rights could guarantee the children's permanent separation from respondent, who was a violent and depraved man.
Respondent argues that the trial court's decision was premature because he had not yet been tried or convicted of the underlying offense at the time the court terminated his parental rights. However, given the fact that respondent repeatedly admitted that he brutally battered and killed his wife and the family dog, and then dragged his wife's body into the garage, no criminal conviction was necessary to support the trial court's termination decision. Even if respondent was never convicted of the criminal offenses for which he was charged there was clear and convincing evidence to terminate respondent's parental rights based on his admissions.
Respondent also claims that termination of his parental rights was improper because the trial court did not explore his potential for rehabilitation through mental health treatment. This claim is unsupported, as is respondent's claim that there was no evidence that he was unwilling or unable to comply with services. It is clear that rehabilitation was not feasible for respondent, considering his history of domestic violence, substance abuse, and mental illness, and the fact that he was already prescribed antipsychotic drugs to treat his mental illness, yet still committed a heinous crime that destroyed his family. Moreover, the evidence showed that respondent committed the crime that precipitated the children's removal while he was on probation and receiving services for an earlier domestic violence incident. While on probation, respondent completed only 21 of 40 domestic violence sessions, and he never participated in family counseling that was offered by DHHS. Most importantly, respondent lacked insight about his issues, admitting that he only participated in services because they were required of him and not because he believed they were necessary. Therefore, termination of parental rights was proper under MCL 712A.19b(3)(g) and (j).
Respondent also asserts that termination of his parental rights was not in the children's best interests. "Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5). Termination of respondent's parental rights was in the children's best interests given respondent's inability to manage his mental health issues and his violent tendencies. Respondent argues that he could have complied with services while incarcerated, but his history shows that he did not benefit from services that were previously offered, and there is no reason to believe that this would change with additional services. Respondent's mental health issues were too severe and not the type from which he could recover within a reasonable time. To assume that respondent would benefit at this time from additional services would be pure speculation.
Respondent argues that he still had a home and that his children could be cared for by his family. Although not specifically raised by respondent on appeal, the trial court was "required to consider the best interests of each child individually" and to explicitly address each child's placement with relatives at the time of the termination hearing, if applicable. Olive/Metts, 297 Mich App at 44. Generally, "[a] trial court's failure to explicitly address whether termination is appropriate in light of the children's placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal." Id. at 43.
In this case, the trial court met its obligations under Olive/Metts. In its written findings, the court determined that termination of respondent's parental rights was in the children's best interests because they needed safety, stability, and finality. Although the trial court did not specifically address the children's placement with their maternal grandmother, their placement was part of the court's record since the pretrial hearing when placement was addressed. The court specifically noted that it formed its best-interest decision in light of the testimony presented during the best-interest hearing, as well as the testimony and exhibits proffered during prior proceedings. Although the paternal grandparents had filed for guardianship of the children, the trial court indicated it would not consider their request, deferring to the caseworker on issues of the children's placement. The court was aware of the children's placement when making its best-interest determination and was unwilling to modify that placement or consider alternatives to termination of parental rights. Therefore, it is clear from the record that the safe, stable, and loving environment the court referred to in its opinion was with the children's maternal grandmother. The trial court's best-interest findings are also sufficient in that they equally applied to both children, who were suffering from the loss of their mother at their father's hands.
Respondent's claim that the court gave no weight to his bond with the children or the emotional effect termination would have on the children is likewise unpersuasive. The children's safety must be a priority over any bond respondent shared with them. Moreover, the evidence showed that the older child knew that respondent caused his mother's death, which would have allowed him to understand why separation from his father was necessary. The emotional difficulty the children could face as a result of their separation from respondent cannot be more important than their need for protection. Therefore, the trial court did not err in its best-interest determination.
Finally, respondent claims that the trial court violated his constitutional right to be present when the court removed him from the courtroom on December 15, 2016, following his disruptive behavior. Respondent argues that the court's offer for him to view the proceedings by video conference did not safeguard his right to participate in the proceedings because he could not interact with his lawyer or assist his guardian ad litem (GAL). He argues that there were no assurances he would be able to hear or see all of the witnesses. This argument is unpersuasive.
The constitutional right of confrontation does not apply to civil proceedings, including child protective proceedings. In re Brock, 442 Mich 101, 108; 499 NW2d 752 (1993). Nevertheless, "[t]he United States and Michigan constitutions preclude the government from depriving a person of life, liberty, or property without due process of law." Hinky Dinky Supermarket, Inc v Dep't of Community Health, 261 Mich App 604, 605; 683 NW2d 759 (2004), citing US Const, Am XIV; Const 1963, art 1, § 17. "A procedural due process analysis requires a dual inquiry: (1) whether a liberty or property interest exists which the state has interfered with, and (2) whether the procedures attendant upon the deprivation were constitutionally sufficient." Brock, 442 Mich at 606 (quotation marks and citation omitted).
In a termination proceeding, "parents stand to lose their constitutional right to the care and custody of the child forever[.]" HRC, 286 Mich App at 455. Constitutionally sufficient procedures "generally require[] notice of the nature of the proceedings, an opportunity to be heard in a meaningful time and manner, and an impartial decisionmaker." Cummings v Wayne Co, 210 Mich App 249, 253; 533 NW2d 13 (1995). To determine when the court is obligated to assure a parent's presence at a court hearing so as not to violate due process, this Court applies the three-part balancing test set forth in Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976). See In re Vasquez, 199 Mich App 44, 47; 501 NW2d 231 (1993). This test balances the private interest at stake, the risk of an erroneous deprivation of that interest in the absence of the parent's physical presence, and the government's interest in avoiding the burden of physically producing the parent for the termination hearing. Id.
Respondent has failed to show how his absence denied him due process. Respondent had an opportunity to be heard at the termination hearing until he began disrupting the proceedings and his attorney and GAL remained in the courtroom to make sure that his interests were heard by the court. Further, it is unlikely that respondent's absence increased any risk that he would be erroneously deprived of a private interest. There is little chance that respondent's physical presence at his lawyer's side during the hearing would have changed the result, considering the evidence of respondent's mental health issues, history of domestic violence, incarceration, and admission that he killed the children's mother. Moreover, even assuming that an adjournment to allow respondent time to control his disruptive behavior would not have been an onerous burden on the court, given the minimal likelihood that respondent's testimony would have altered the outcome the lack of an adjournment did not constitute a denial of due process. Respondent received timely notice and was free to attend the hearing. Under the circumstances, the court was not obligated to take further measures to secure respondent's presence.
In addition to due process protections, MCR 3.973(D)(2) provides that a respondent in a child protective proceeding has a right to be present or to be represented by an attorney. However, the trial court may proceed in a respondent's absence if he or she was provided proper notice of the proceeding. MCR 3.973(D)(2) and (3). Respondent does not assert that he lacked proper notice of the termination hearing, and his counsel appeared at the hearing on his behalf. Further, the court rule does not require the court to secure the physical presence of a parent, but only implies that the court shall not deny a parent's right to be present at the hearing. See Vasquez, 199 Mich App at 49. In Vasquez, this Court rejected the notion "that an incarcerated parent is entitled as a matter of absolute right to be present at the dispositional hearing," instead reasoning that, "[i]n light of present-day telecommunications, other means that fall short of securing the physical presence of a parent are available to ensure that an incarcerated prisoner receives due process at a dispositional hearing." Id. at 48-49. In this case, respondent's physical absence from the termination hearing did not amount to a violation of his due process rights. Although respondent was not physically present during the entire hearing, he was offered the opportunity to participate in the hearing by video conference. This conclusion is also supported by MCR 2.004, which specifically contemplates that an incarcerated parent might participate in a termination hearing by telephone or video conference. Therefore, the trial court did not err by removing respondent from the courtroom.
Affirmed.
/s/ Kathleen Jansen
/s/ Jane M. Beckering
/s/ Michael F. Gadola