Opinion
No. 344173
01-17-2019
In re E. A. MCKINLEY, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED St. Joseph Circuit Court Family Division
LC No. 2016-001012-NA Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court's order terminating his parental rights to the minor child, EAM, under MCL 712A.19b(3)(b)(i) (parent sexually abused the child or a sibling of the child), (3)(j) (likelihood of harm if returned to the parent), and (k)(ii) (parent sexually abused the child involving penetration). We affirm.
The Department of Health and Human Services (DHHS) filed a petition for termination of parental rights on the basis of father's no-contest plea to second-degree criminal sexual conduct, MCL 750.520c(1)(a) (victim under 13 years of age) (CSC-II) for sexual contact with EAM. Father previously pleaded guilty to CSC-II for sexual contact with his stepdaughter in another county. The trial court accepted jurisdiction following a jury adjudication trial at which EAM testified. The trial court subsequently terminated father's parental rights following a termination hearing. This appeal followed.
On appeal, father argues that the trial court failed to advise him of his due-process rights at the preliminary hearing by failing to follow the procedural requirements listed in MCR 3.965(B). Father also contends that the trial court erred in allowing petitioner's counsel to refresh EAM's memory with a preliminary hearing transcript during her testimony at the adjudication trial. Father failed to raise objections regarding either of these issues in the trial court proceedings. Therefore, they are both unpreserved. See In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014).
We review an unpreserved claim of constitutional error for plain error affecting substantial rights. Id. Similarly, we review "unpreserved evidentiary issues to determine whether there was plain error affecting a party's substantial rights." Hilgendorf v St John Hosp and Med Ctr Corp, 245 Mich App 670, 700; 630 NW2d 356 (2001). "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).
A respondent-parent in a child-protective proceeding cannot collaterally attack the trial court's jurisdiction in an appeal from the order terminating parental rights. "Matters affecting the court's exercise of its jurisdiction may be challenged only on direct appeal of the jurisdictional decision, not by collateral attack in a subsequent appeal of an order terminating parental rights." In re SLH, 277 Mich App 662, 668 n 11; 747 NW2d 547 (2008) (quotation marks and citation omitted).
At the preliminary hearing, the trial court found that there was probable cause to believe that the allegations in the petition were true and it authorized the petition. The trial court accepted jurisdiction on the basis of the jury verdict at the conclusion of the adjudication trial. Father did not appeal either of these orders. The trial court terminated father's parental rights following a termination hearing, and he is appealing from the order terminating his parental rights. As a result, father is barred from collaterally attacking the trial court's jurisdictional decision. See id.
At any rate, our review of the record establishes that any failure of the trial court to follow the technical requirements of MCR 3.965(B) did not amount to plain error affecting father's substantial rights. See In re Utrera, 281 Mich App at 9. Further, allowing EAM to refresh her memory with the preliminary hearing transcript during her adjudication trial testimony was permissible under MRE 612. Therefore, father has failed to show any error, much less plain error affecting his substantial rights.
Affirmed.
/s/ Jane E. Markey
/s/ Michael J. Kelly
/s/ Brock A. Swartzle