Opinion
No. 338896 No. 338907
01-23-2018
In re PORTER, Minor. In re PORTER, Minors.
UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2016-845873-NA Oakland Circuit Court Family Division
LC No. 2016-845872-NA Before: JANSEN, P.J., and FORT HOOD and RIORDAN, JJ. PER CURIAM.
In these consolidated appeals, respondent appeals as of right from the circuit court's orders terminating his parental rights to the minor children pursuant to MCL 712A.19b(3)(b)(i), (g), and (j). We affirm.
Petitioner filed two petitions requesting termination of respondent's parental rights to his three children by two different mothers. On December 15, 2016, an adjudicative hearing was held and the court asserted jurisdiction over the youngest child, RMP, through her mother. On February 2, 2017, respondent entered a no contest plea and the trial court asserted jurisdiction over RMP as well as her older half siblings, AMP and ZAP, through respondent. The trial court then entered an order concluding that petitioner had established the necessary statutory grounds to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(b)(i), (g) and (j). After a best-interest hearing, the trial court found that termination of respondent's parental rights was in the children's best interests.
Respondent first argues that the trial court erred by accepting his no contest plea to assume jurisdiction over the minor children because the trial court did not rely on legally admissible evidence to support its decision. Because respondent did not raise this issue in the trial court, our review is limited to plain error affecting substantial rights. In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011).
The trial court's jurisdiction may be established either by a respondent's plea of admission or no contest "to the original allegations in the petition[,]" MCR 3.971(A), or following trial, MCR 3.972. In re SLH, 277 Mich App 662, 669; 747 NW2d 547 (2008). During a trial, at least one statutory basis for jurisdiction under MCL 712A.2(b) must be proven by a preponderance of the legally admissible evidence. MCR 3.972(C)(1), (E). However, in this case the trial court assumed jurisdiction pursuant to MCL 712A.2(b)(1) and (2) on the basis of respondent's no contest plea. MCR 3.971(C)(2) provides as follows with regard to pleas of no contest:
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.
The trial court found sufficient factual support for accepting respondent's no contest plea on the basis of the testimony of Child Protective Services (CPS) caseworker Emily Nichols. Nichols indicated that she filed a petition alleging that respondent sexually molested a 10-year-old neighborhood girl. She testified that respondent's daughter AMP later came forward indicating that respondent had also sexually abused her. Respondent had been charged with criminal sexual conduct arising from these allegations and was awaiting trial at the time of his no contest plea. Therefore, the trial court accepted respondent's no contest plea and asserted its jurisdiction over the minor children as to respondent.
Respondent was ultimately convicted, following guilty pleas, of two counts of criminal sexual conduct, second degree, MCL 750.520c, and one count of criminal sexual conduct, first degree, MCL 750.520b.
Contrary to respondent's claim, there is nothing in the plain language of MCR 3.971(C)(2) that precluded the trial court from taking jurisdiction on the basis of Nichols's testimony. Specifically, the trial court acted in conformance with the court rule, which states that 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 our view, the phrase "by some other means" cannot reasonably be interpreted to exclude testimony such as that offered by Nichols. This Court has also recognized, in the context of citing MCR 3.972(C)(1), that "[i]f a trial is held [on the issue of jurisdiction], . . . the rules of evidence for a civil proceeding apply[.]" In re AMAC, 269 Mich App 533, 536; 711 NW2d 426 (2006) (emphasis added). There is no counterpart in the court rules with respect to a plea of no contest. Notably, respondent does not cite any authority in his brief on appeal to support his contention that MCR 3.971(C)(2), governing no contest pleas, precluded the trial court from taking jurisdiction over the minor children on the basis of Nichols's testimony. As petitioner points out, respondent knowingly and voluntarily chose to enter a plea of no contest and to waive his right to trial. Had respondent wanted petitioner to prove its case in accordance with the rules of evidence, MCR 3.972(C)(1), he could have requested a trial. Respondent may not harbor error as an appellate parachute by objecting to something on appeal deemed proper at trial. Dresselhouse v Chrysler Corp, 177 Mich App 470, 477; 442 NW2d 705 (1989). In any event, because respondent has failed to show plain error, reversal is not required. VanDalen, 293 Mich App at 135.
We review the language of the court rules using the same principles of interpretation applicable to statutes. Reed v Breton, 279 Mich App 239, 242; 756 NW2d 89 (2008). Like a statute, where the language of the court rule is clear and unambiguous, we will apply the language of the court rule as written. See Nickola v MIC Gen Ins Co, 500 Mich 115, 123; 894 NW2d 552 (2017) (recognizing that clear and unambiguous statutes are applied as written).
While respondent offers this Court's decision in In re Dearmon, 303 Mich App 684, 696; 847 NW2d 514 (2014), as support for his argument that the trial court erred in considering Nichols's testimony before taking jurisdiction, In re Dearmon is distinguishable. In that case, the Court observed that MCR 3.972(C)(1) provides that the rules of evidence will apply at a trial held to determine jurisdiction. As noted above, the court rules make no such directive with regard to plea proceedings where a respondent tenders a no contest plea.
Respondent also challenges the trial court's determination that statutory grounds to warrant termination of his parental rights existed on the basis of the same evidence.
To terminate parental rights, the trial court must find that at least one of the statutory grounds for termination set forth in MCL 712A.19b(3) has been met by clear and convincing evidence and that termination is in the best interest of the children. MCL 712A.19b(5); In re Sours, 459 Mich 624, 632; 593 NW2d 520 (1999). We review for clear error a trial court's decision that statutory grounds for termination have been established by clear and convincing evidence. MCR 3.977(K); In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009). The trial court's decision "is clearly erroneous if, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003) (citation omitted). To the extent that respondent challenges the evidence that the trial court relied on in finding statutory grounds to warrant termination of his parental rights, we review this unpreserved claim for plain error. In re VanDalen, 293 Mich App at 135.
The trial court found statutory grounds to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(b)(i), (g) and (j), which provide, in pertinent part, as follows:
The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
* * *
(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
(i) The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent's home.
* * *
(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.
* * *
(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.
The February 2, 2017 hearing where respondent tendered his no contest plea followed the December 15, 2016 bench trial where the trial court ultimately took jurisdiction over RMP relating to the petition filed against her mother. During that hearing, AMP clearly testified that respondent touched her inappropriately in a sexual manner, and that she told her sister, as well as RMP's mother, about the sexual abuse. After hearing AMP's testimony, the trial court characterized her as a very credible witness. Accordingly, where the record evidence, in addition to Nichols's testimony at the February 2, 2017 plea hearing, amply supported the trial court's conclusion that statutory grounds to terminate respondent's parental rights existed, we are not persuaded that plain error affecting respondent's substantial rights occurred. In re VanDalen, 293 Mich App at 135.
To the extent that respondent directs our attention to MCR 3.977(E)(3), we note that this court rule is applicable where the trial court orders termination of parental rights at the initial dispositional hearing, which was not the case here.
Respondent next argues that his counsel in the trial court was ineffective because counsel allowed his no contest plea to be accepted. We disagree.
In reviewing a claim of ineffective assistance of counsel in a termination of parental rights case, "this Court applies by analogy the principles of ineffective assistance of counsel as they have developed in the criminal law context." In re Simon, 171 Mich App 443, 447; 431 NW2d 71 (1988). Thus, the respondent must show that (1) counsel's performance was objectively unreasonable, and (2) the respondent incurred prejudice as a result. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). To demonstrate prejudice, the respondent must show that there exists "a reasonable probability that, but for counsel's error, the result of the proceeding would have been different." People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (citation and quotation marks omitted). As we have concluded above, respondent's no contest plea was properly tendered to and accepted by the trial court in conformance with the court rules, and counsel was not required to raise a meritless objection. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Respondent next contends that the trial court erred in concluding that termination of his parental rights was in the best interests of the children. We disagree.
"[W]hether termination of parental rights is in the best interests of the child[ren] must be proved by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). We review for clear error the trial court's determination concerning the children's best interests. In re JK, 468 Mich at 209. In determining what is in the children's best interests, the trial court weighs the following:
The trial court should weigh all the evidence available to determine the children's best interests. To determine whether termination of parental rights is in a child's best interests, the court should consider a wide variety of factors that may include 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. The trial court may also consider a parent's history of domestic violence, the parent's compliance with his or her case service plan, the parent's visitation history with the child, the children's well-being while in care, and the possibility of adoption. [In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014) (footnotes, citations and quotation marks omitted).]
As respondent asserts on appeal, we acknowledge that the record evidence demonstrated that a bond existed between respondent and each of his children and that respondent provided the children with food, clothing, and shelter. However, the record evidence also confirmed that respondent posed a risk of serious physical and emotional harm to the children. Having sexually abused AMP, the trial court recognized that it was not safe for respondent to be in contact with the children. As the trial court further noted, the children's safety and physical and emotional well-being was more important than any bond respondent may have had with them. Likewise, respondent's abuse of alcohol and physical abuse of the children also compromised the children's safety and sense of stability. In sum, given respondent's history and treatment of the children, the trial court correctly determined that it was not in their best interests for parental rights to remain intact.
With regard to AMP and ZAP the trial court characterized this bond as "tenuous."
Moreover, as required by In re Olive/Metts, 297 Mich App 35, 44; 823 NW2d 144 (2012), the trial court considered each of the children's placements with relatives when making its best-interest decision. The trial court specifically found that AMP's habit of self-harm appeared related to her ability to cope with her bond to respondent after he sexually abused her. The trial court found that she had a tenuous bond with respondent that was enmeshed in her emotional confusion about the abuse. Conversely, she was thriving in her placement with her paternal uncle who was willing to adopt her. Similarly, ZAP was making significant improvements in behavior and academic performance since he was placed with the same paternal uncle, who was also willing to adopt him. RMP likewise suffered physical abuse by respondent and was doing well in her relative placement. Her long-term plan for reunification with her mother was also moving forward. The trial court's consideration of the children's placement with relatives and individual situations properly supported its best-interest findings. Thus, the trial court did not clearly err in its best-interest determination.
Although respondent argues that the petition contained no specific allegations regarding ZAP, we note that the petition involving ZAP generally stated that respondent's home environment was unfit for the children by reason of cruelty, drunkenness, and criminality. --------
Affirmed.
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
/s/ Michael J. Riordan