Opinion
No. 349629
02-25-2020
In re MDM, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ingham Circuit Court Family Division
LC No. 19-000348-NA Before: BORRELLO, P.J., and METER and RIORDAN, JJ. PER CURIAM.
Respondent-father appeals by right an order terminating his parental rights to his child, MDM, pursuant to MCL 712A.19b(3)(f) (failure to regularly and substantially provide support for a two-year period or, if there is a support order, failure to substantially comply with a support order, and failure to regularly and substantially communicate). We affirm.
Petitioner argues that this Court does not have jurisdiction over respondent's appeal. We conclude that jurisdiction is proper because respondent complied with MCR 3.977(J)(1)(c). --------
I. FACTS & PROCEDURAL HISTORY
Petitioner, MDM's maternal grandmother and guardian, filed a private petition for termination of the parental rights of MDM's mother and respondent under the jurisdictional ground MCL 712A.2(b)(6) and the statutory ground 712A.19b(3)(f). A preliminary hearing was held before a referee. Respondent was not present for the hearing. However, petitioner testified that she made attempts to notify both of MDM's parents of the proceeding. The petition was authorized and the trial court held a pretrial hearing. Again, respondent was not present at the proceeding. During the hearing, MDM's mother agreed to voluntarily release her parental rights to MDM.
The trial court held a termination hearing for respondent's parental rights, and again, respondent did not appear at the hearing. The trial court determined that respondent had been served after multiple failed attempts and noted that there was an order for alternate service providing service by publication, and a proof of service was filed with the court. The trial court heard testimony that respondent had not supplied clothing, had not paid for MDM's food or medical needs, and had not provided any financial support for MDM. Additionally, the trial court took judicial notice of the domestic file containing a judgment of divorce entered five years prior to the termination hearing. Attached to the judgment was a support order directing respondent to pay $96 monthly to MDM's mother. Petitioner testified that she had not receive any payments since she became MDM's guardian. Respondent was granted supervised visitation, but had only visited MDM once, and at the time of the termination hearing, accordingly to petitioner, respondent had not spoken to MDM on the phone in over a year.
The trial court found that it had jurisdiction under MCL 712A.2(b)(6), that the statutory grounds under MCL 712A.19b(3)(f) were satisfied by clear and convincing evidence, and that termination was in MDM's best interests. Respondent now appeals.
II. ANALYSIS
Respondent first argues that the trial court erred by finding by clear and convincing evidence that statutory grounds existed under MCL 712A.19b(3)(f). We disagree.
"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). The trial court's factual findings, determination of best interests, and findings that a ground for termination has been established are reviewed for clear error. MCR 3.977(K); In re White, 303 Mich App 701, 709, 713; 846 NW2d 61 (2014). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).
MCL 712A.19b(3)(f) provides that the court may terminate parental rights when a child has a legal guardian and both of the following have occurred:
(i) The parent, having the ability to support or assist in supporting the minor, has failed or neglected, without good cause, to provide regular and substantial support for the minor for a period of 2 years or more before the filing of the petition or, if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the petition.
(ii) The parent, having the ability to visit, contact, or communicate with the minor, has regularly and substantially failed or neglected, without good cause, to do so for a period of 2 years or more before the filing of the petition.
In this case, respondent failed to provide regular and substantial support for a period of two years or more despite having the ability to do so. The evidence showed that respondent had the ability to provide support for MDM as evidenced by the child support order directed that respondent pay $96 per month to MDM's mother for the support of two children, including MDM. Respondent failed to supply MDM with clothing, or pay for MDM's food and medical needs, or provide financial support for MDM while he was in petitioner's care. Given the facts presented, the trial court correctly held that respondent had failed to provide regular and substantial support to MDM for two years before the petition for termination was filed.
In addition, respondent "regularly and substantially failed or neglected, without good cause," to visit, contact, or communicate with MDM for a period of two or more years before the petition was filed. See MCL 712A.19b(3)(f)(ii). Respondent argues that petitioner only "allowed" some contact between respondent and MDM. However, this assertion is unsupported by the record. Petitioner testified that respondent had not spoken to MDM on the phone in over a year and any phone calls that occurred were not regular or substantial. Moreover, petitioner testified that respondent had a parenting visitation schedule in place from prior to the divorce judgment, but that respondent did not pursue regular visitation. One visit occurred after respondent sought to have his parents supervise visitation instead of a court-appointed supervisor. While the trial court acknowledged this visitation occurred, it emphasized that sporadic contact is distinguishable from substantial contact. We agree that sporadic visitation or phone calls do not amount to substantial contact under MCL 712A.19b(3)(f)(ii). Therefore, the trial court did not err by finding by clear and convincing evidence that respondent did not have substantial contact with MDM between 2016 and the filing of the petition in 2019. Accordingly, the trial court did not commit error requiring reversal when it found that statutory grounds for termination of respondent's parental rights existed under MCL 712A.19b(3)(f).
Respondent next argues that the trial court erred by failing to sua sponte appoint an attorney to represent him during the child protective proceedings. We disagree.
"Whether child protective proceedings complied with a parent's right to procedural due process presents a question of constitutional law, which we review de novo." In re Sanders, 495 Mich 394, 403-404; 852 NW2d 524 (2014). A respondent has the right to appointed counsel in parental rights termination proceedings. See In re Williams, 286 Mich App 253, 275; 779 NW2d 286 (2009); see also MCL 712A.17c(5) and MCR 3.915(B)(1)(b). However, the right to appointed counsel in termination proceedings is not absolute. This Court has recognized that "affirmative action [is required] on the part of a respondent in order to have an attorney appointed" at a child protective proceeding. See In re Hall, 188 Mich App 217, 222; 469 NW2d 56 (1991). Moreover, a trial court is not required to appoint counsel for a parent in a child custody proceeding on "the court's own motion." Id. (quotation marks omitted).
In this case, the trial court was not required to sua sponte appoint counsel for respondent. According to MCL 712A.17c(5) and MCR 3.915(B)(1)(b), the trial court is mandated to appoint counsel for a respondent only if it appears to the court that the respondent wants an attorney and is financially unable to retain one. The trial court determined that respondent had been aware of the termination proceedings, but nonetheless was absent throughout the entirety of them. Because respondent had notice of the proceedings, he was required to take some affirmative action in order to avail himself of his right to counsel and failed to do so. Therefore, the trial court did not violate respondent's due-process rights by failing to appoint an attorney.
III. CONCLUSION
The trial court did not commit error requiring reversal when it terminated respondent's parental rights to MDM pursuant to MCL 712A.19b(3)(f), and when it declined to sua sponte appoint counsel for respondent. Accordingly, we affirm.
/s/ Stephen L. Borrello
/s/ Patrick M. Meter
/s/ Michael J. Riordan