Opinion
No. 344900 No. 345231
03-21-2019
In re M. A. PROCTOR, Minor. In re PROCTOR-BRISCOE, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2017-851779-NA Before: BORRELLO, P.J., and SWARTZLE and CAMERON, JJ. PER CURIAM.
In Docket No. 344900, respondent-father D. Massey appeals as of right the trial court's June 26, 2018 order terminating his parental rights to his son, MAP. In Docket No. 345231, respondent-father C. Briscoe appeals as of right the trial court's separate order terminating his parental rights to his three children, LKPB, ADPB, and AMPB. The court terminated the parental rights of both respondents pursuant to MCL 712A.19b(3)(a)(ii), (c)(i), (g), and (j). For the reasons set forth in this opinion, we affirm in both cases.
I. BACKGROUND
Respondent J. Smith is the mother of all four children involved in these consolidated cases. At the time that the trial court terminated the fathers' parental rights, Smith was working toward reunification with her children and her parental rights had not been terminated. Smith is not a party to these appeals.
In February 2010, Smith gave birth in Maryland to Massey's son, MAP. Shortly thereafter, Smith moved with MAP to Michigan to be closer to her support system. Massey remained in Washington, D.C., where he was on probation, which precluded him from leaving the area. Over the next two years, Massey visited MAP one time. Massey last saw his son in 2012, when MAP was two years old. Between 2011 and 2015, Smith gave birth to three children fathered by Briscoe: LKPB, ADPB, and AMPB.
These cases stem from Smith's decision to leave her four children alone and unsupervised in the middle of the night. During the early morning hours of March 26, 2017, at approximately 12:00 a.m., law enforcement was contacted because the children were home alone. Smith was not located until approximately 3:00 a.m. Smith admitted that she left the children alone without an appropriate plan. At the time, the oldest child was seven years old and the youngest was not yet two years old. When Smith was eventually found, her blood alcohol level was 0.11. The children could not be placed in the care of their respective fathers that night; Briscoe was incarcerated, and Smith reported that Massey was possibly incarcerated in North Carolina and had not been involved with MAP for several years. The children were taken into protective custody and placed in nonrelative foster care.
On March 27, 2017, the Department of Health and Human Services (DHHS) filed a petition requesting that the court take jurisdiction of the children. Petitioner had not yet confirmed that either Massey or Briscoe were the legal fathers of the children, and only Smith was named as a respondent in the original petition. After confirming the status of Massey and Briscoe as legal fathers, a first amended petition was filed on April 5, 2017, naming both Massey and Briscoe as respondents. In the amended petition, it was alleged that Briscoe had a significant history of committing acts of domestic violence, that he was charged for acts of domestic violence in 2015 and 2016, and that both Smith and Smith's mother had been the victims of domestic violence. The petition further alleged that Briscoe was in arrears on child support, did not have suitable housing for his children, did not have a legal source of income, and had a substance abuse history that was known to his minor children and that negatively affected his parenting abilities. With respect to Massey, the amended petition alleged that he had not seen MAP since he was an infant, that he had not provided care or assisted in planning for MAP during this time period, that he was in arrears on child support, and that his whereabouts were unknown despite extensive search efforts. Accordingly, although Briscoe attended the preliminary hearing on April 5, 2017, Massey did not.
At a hearing on April 13, 2017, the trial court accepted pleas from both Smith and Briscoe. Smith admitted that she left her children alone and unsupervised, and she further admitted to having been found with a blood alcohol level of 0.11. Briscoe admitted that he was incarcerated when Smith left the children alone that night. He also admitted to the petition allegations related to his domestic violence history, being in arrears on his child support, lacking suitable housing and a legal source of income, and having a substance abuse history. After accepting the pleas, the court found that the minor children came within the court's jurisdiction with respect to Smith and Briscoe. Additionally, the court appointed counsel to represent Massey and indicated that Massey could be served by publication.
On May 12, 2017, the Oakland Press published a notice advising Massey of the pretrial hearing to be held on May 25, 2017. The notice advised that this hearing could result in the termination of Massey's parental rights.
Massy did not appear at the scheduled hearing on May 25, 2017, but he was represented by counsel. Massey's attorney did not object to the manner of service. However, his attorney did point out that the notice by publication in the Oakland Press only advised Massey of a "pretrial" hearing and not a possible "bench trial." The trial court concluded that Massey had been properly served by publication in Oakland County because there was a Friend of the Court matter related to MAP filed in Oakland County and Smith further confirmed that Massey was aware that MAP was living in Oakland County. The court entered a plea of "not responsible" to the petition on Massey's behalf and scheduled an adjudicative trial regarding Massey for June 1, 2017. At the hearing on May 25, 2017, the court also addressed disposition regarding Smith and Briscoe. It adopted a Parent-Agency Agreement for both Smith and Briscoe. Briscoe was required to provide proof of a legal source of income, complete random drug screens, obtain and maintain appropriate housing, complete anger management and domestic violence therapy, and follow the recommendation of a psychological evaluation.
On June 1, 2017, the court held an adjudication trial with respect to Massey, whose whereabouts were still unknown. Although Massey was not present at the hearing, he was represented by counsel. Massey's counsel complemented the DHHS on its efforts to locate Massey, conceded that the court's orders regarding service by publication were proper, and then explained that Massey was apparently a federal fugitive.
The trial continued in Massey's absence with petitioner presenting the testimony of Children's Protective Services (CPS) investigator Katherine Oren. Oren testified that she authored the April 5, 2017 petition and that after Smith indicated that Massey might be incarcerated in North Carolina, Oren examined several databases in an attempt to locate him. She contacted the state of North Carolina and examined State of Michigan databases. The North Carolina Department of Corrections did not have any record of Massey being a prisoner, and when Oren attempted to find information about contacting private facilities, she was still referred back to the North Carolina Department of Corrections. Oren found one address in Michigan, suggesting that he might have lived here at one time. All of the other addresses for Massey were in Maryland and Washington, D.C. Oren also examined law enforcement databases and learned that Massey was listed with the Federal Bureau of Prisons as a fugitive; he was supposed to have been in federal custody but was not. Despite her efforts, Oren did not know where Massey was.
Oren further testified that Smith indicated that Massey had not been involved with MAP or spoken to Smith in years. Smith also informed Oren that Massey last saw MAP when the child was an infant. Oren found no evidence that Massey had written any letters to MAP, provided any gifts to the child, or been involved in his education or medical care during the past six years. Oren also found no evidence that Massey was providing for MAP. Oren testified that an Oakland County Friend of the Court case was started in 2012, and that Friend of the Court records indicated that Massey was obligated to pay child support for MAP but was in arrears. Oren could not find enough information to contact any of Massey's relatives.
At the conclusion of the trial, the court found by a preponderance of the evidence that MAP came within the court's jurisdiction with respect to Massey. The court noted, among other things, Massey's lack of contact with MAP for several years, his failure to provide any support for the child, and his status as a federal fugitive.
Over the months that followed, Briscoe did not comply in any meaningful way with his treatment plan. Massey's whereabouts continued to be unknown: at hearings conducted during the time from on August 2017 to February 2018, the court was advised that Massey continued to be a federal fugitive, and his court-appointed attorney conveyed that she had not had any communication with her client.
In February 2018, a supplemental petition was filed requesting termination of Briscoe's parental rights. Additionally, Massey was finally located. It was discovered that he had been detained as of February 12, 2018, in a detention facility in Washington, D.C.
A supplemental petition to terminate Massey's parental rights to MAP was filed in March 2018. On March 30, 2018, Massey was served by mail, addressed to the detention facility, with a copy of the notice of hearing and the supplemental petition. Notice of the hearing was also published in the Oakland Press. Massey's termination hearing, originally scheduled for May 9, 2018, was adjourned because Massey was not personally served in time to proceed with the hearing that day. Instead, Massey's termination hearing was held on June 18, 2018. Massey participated in the hearing via telephone. At the conclusion of the hearing, the court found that clear and convincing evidence supported the termination of Massey's parental rights pursuant to MCL 712A.19b(3)(a)(ii), (c)(i), (g), and (j). The court also found that termination of Massey's parental rights was in MAP's best interests.
The hearing on the petition to terminate Briscoe's parental rights was held on July 19, 2018. Briscoe did not appear for the hearing. At the conclusion of the hearing, the court found sufficient evidence to terminate Briscoe's parental rights pursuant to MCL 712A.19b(3)(a)(ii), (c)(i), (g), and (j), and that termination was also in his children's best interests.
II. ANALYSIS
A. DOCKET NO. 344900 (RESPONDENT MASSEY)
1. INQUIRY INTO MASSEY'S NATIVE AMERICAN HERITAGE
On appeal, Massey first argues that he is entitled to the conditional reversal of the order terminating his parental rights because the trial court failed to inquire of him whether he was a member of a Native American tribe, negating certain protections provided for Indian children by the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq., and the Michigan Court Rules. More specifically, Massey maintains that the failure to ask him whether he had any Native American heritage resulted in a violation of the ICWA and MIFPA notice requirements, which are contained in 25 USC 1912(a) and MCL 712B.9, respectively.
During the proceedings in this matter, Smith and Briscoe had each denied being a member of an American Indian tribe or having any Native American heritage when asked by court.
Because Massey failed to raise this issue below, it is unpreserved. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). Accordingly, this Court's review is limited to plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). "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) (quotation marks and citation omitted). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utera, 281 Mich App at 9. The appellant asserting that plain error occurred "bears the burden of persuasion with respect to prejudice." People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (quotation marks and citation omitted).
ICWA and MIFPA both provide protections "aim[ed] to address the historical injustice caused by the removal of Indian children from their families and tribes." In re Williams, 501 Mich 289, 294; 915 NW2d 328 (2018). In enacting ICWA, Congress sought to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs." 25 USC 1902. Similarly, the Michigan Legislature "adopted MIFPA to establish state law standards for child welfare and adoption proceedings involving Indian children." In re Williams, 501 Mich at 298; see also MCL 712B.5. Under MIFPA, courts are also directed to "[p]rotect the best interests of Indian children and promote the stability and security of Indian tribes and families." MCL 712B.5(a). As our Supreme Court has explained,
ICWA sets a floor, establishing the minimum national standards that must be met before an Indian child may be removed from his or her family in the context of child protective proceedings. 25 USC 1902. MIFPA similarly provides special protections when an Indian child is involved in certain proceedings in Michigan courts. [In re Williams, 501 Mich at 294.]
Among these protections are the requirements contained in each act related to providing an Indian child's tribe with notice of any involuntary proceedings seeking termination of parental rights to the Indian child. The pertinent provision of ICWA, 25 USC 1912(a) provides as follows:
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.Likewise, the relevant provision of MIFPA, MCL 712B.9(1), provides as follows:
In a child custody proceeding, if the court knows or has reason to know that an Indian child is involved, the petitioner shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending child custody proceeding and of the right to intervene. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, notice shall be given to the secretary in the same manner described in this subsection. The secretary has 15 days after receipt of notice to provide the requisite notice to the parent or Indian custodian and the tribe.
For purposes of MIFPA, a "child custody proceeding" is defined to include proceedings to terminate parental rights. MCL 712B.3(b)(ii).
Complimenting these statutory tribal notice provisions of each act, our court rules require the trial court to inquire at the preliminary hearing "if the child or either parent is a member of an Indian tribe." MCR 3.965(B)(2).
In this case, throughout a significant portion of the lower court proceedings, Massey was apparently a fugitive from federal custody and his whereabouts were unknown. He was only located shortly before the supplemental petition was filed requesting termination of his parental rights to MAP. Massey participated in the termination hearing by telephone, but it is undisputed that he was never specifically asked during the course of the lower court proceedings whether he was a member of an Indian tribe or had any Native American heritage. Massey also never made an affirmative claim of having any Native American heritage.
Nevertheless, even if the trial court's failure to inquire of Massey about any potential Native American heritage is considered plain error, Massey has not established error requiring reversal or that he is entitled to any appellate relief because he has not met his burden on appeal of demonstrating that he was prejudiced as a result of any error in this respect.
Our Supreme Court has held that the tribal notice provision under ICWA is triggered if the court is presented with "sufficient indicia of Indian heritage . . . to give the court a reason to believe the child is or may be an Indian child," which the Court defined as "sufficiently reliable information of virtually any criteria on which [tribal] membership might be based." In re Morris, 491 Mich 81, 108; 815 NW2d 62 (2012). The term "Indian child" is defined for purposes of ICWA to mean "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 USC 1903(4). An "Indian tribe" is "any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of Title 43." 25 USC 1903(8).
"Secretary," within ICWA and MIFPA, refers to "the Secretary of the Interior." 25 USC 1903(11); MCL 712B.3(u).
MIFPA includes a nonexhaustive list of when the tribal notice provision is triggered:
(4) Circumstances under which a court, the department, or other party to a child custody proceeding has reason to believe a child involved in a child custody proceeding is an Indian include, but are not limited to, any of the following:MIFPA defines "Indian child" to mean "an unmarried person who is under the age of 18 and is either . . . [a] member of an Indian tribe . . . [or] [e]ligible for membership in an Indian tribe as determined by that Indian tribe." MCL 712B.3(k). An "Indian tribe," for purposes of MIFPA, "means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the secretary because of their status as Indians, including any Alaska native village as defined in section 1602(c) of the Alaska native claims settlement act, 43 USC 1602." MCL 712B.3(o).
(a) Any party to the case, Indian tribe, Indian organization, or public or private agency informs the court that the child is an Indian child.
(b) Any public or state-licensed agency involved in child protection services or family support has discovered information that suggests that the child is an Indian child.
(c) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child.
(d) The residence or the domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community.
(e) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child. [MCL 712B.9(4).]
This list essentially mirrors the Bureau of Indian Affairs guidelines that were quoted with approval by our Supreme Court in In re Morris, which described the guidelines as reflecting "a permissive standard we find consistent with the purposes animating ICWA." In re Morris, 491 Mich at 105.
Further, as we have previously observed, the tribal notice provisions in ICWA and MIFPA are similar in their language. In re Jones, 316 Mich App 110, 113; 894 NW2d 54 (2016). Both provisions contain language tying the tribal notice requirements to situations where the court "knows or has reason to know that an Indian child is involved." 25 USC 1912(a); MCL 712B.9(1). And while the "reason to know" standard for purposes of the ICWA tribal notice provision "set[s] a rather low bar," In re Morris, 491 Mich at 105, the bar is not so low as to be rendered meaningless. The Court in In re Morris provided the following explanation:
Precisely what constitutes "reason to know" or "reason to believe" in any particular set of circumstances will necessarily evade meaningful description. As in other contexts, reasonable grounds to believe must depend upon the totality of the circumstances and include consideration of not only the nature and specificity of available information but also the credibility of the source of that information and the basis of the source's knowledge. In light of the purpose of [ICWA], however, to permit tribal involvement in child-custody determinations whenever tribal members are involved, the threshold requirement for notice was clearly not intended to be high. [Id. at 106 (citation and some quotation marks omitted; alteration in original; emphasis added).]Given the similarity in the language used to describe the threshold for triggering the tribal notice requirement in both ICWA and MIFPA, as well as the fact that our Supreme Court has described a set of guidelines promulgated by the Bureau of Indian Affairs that is substantively identical to the nonexhaustive list of notice triggering circumstances contained in MCL 712B.9(4) as reflecting a standard "consistent with the purposes animating ICWA," In re Morris, 491 Mich at 105, we conclude that the In re Morris Court's description of the standard to employ in evaluating "what constitutes 'reason to know' or 'reason to believe' in any particular set of circumstances," id. at 106, applies in the context of both the ICWA and MIFPA tribal notice requirements.
In this case, although Massey argues that the tribal notice requirements of ICWA and MIFPA were violated, his sole claim of Indian heritage appears in a footnote of his appellate brief, which states that "[i]n a telephone conference on October 9, 2018, Mr. Massey's mother stated her belief to the author of this brief that Mr. Massey does in fact have some Indian heritage." This statement does not even constitute an affirmative assertion that Massey has any Native American heritage, nor does it appear from the record before us that Massey has ever made a claim that he has Native American heritage. There is also no indication in the lower court record that MAP had any Native American heritage or tribal affiliation. Smith affirmatively indicated on the record during the March 27, 2017 hearing that she did not have any Native American heritage and was not a member of any Indian tribe; the petitions identify MAP as African-American; and court reports relative to MAP and completed by foster care caseworkers specifically state that the "Native American Inquiry" had been made, that no Native American ancestry had been reported, and that no Native American affiliation had been confirmed. Furthermore, on appeal, Massey has not submitted any documentary evidence or affidavits to support his claim of Native American heritage, he does not claim that MAP is eligible for membership in or is actually a member of any Indian tribe, and he did not file a timely and properly supported motion in this Court to remand for development of a further factual record to aid our review of this issue. See MCR 7.211(C)(1)(a)(ii).
Under the totality of the circumstances and considering the "nature and specificity" of the lone statement in a footnote of Massey's appellate brief, see In re Morris, 491 Mich at 106, we conclude that there is not sufficient information or evidence to provide "reasonable grounds to believe" that MAP may be an Indian child. The statement in Massey's brief relates the purely speculative belief of Massey's mother, does not name any specific Indian tribe, and does not give any indication that there actually exists evidence in admissible form that MAP is an Indian child. For the same reasons, Massey has not provided us with "sufficiently reliable information of . . . any criteria on which [tribal] membership might be based" and thus has not presented "sufficient indicia of Indian heritage" to allow us to reasonably conclude that MAP may be an Indian child" Id. at 108. Consequently, Massey has failed to meet his burden of demonstrating that the outcome below would have been different, i.e., that he could have established that MAP is an Indian child subject to the protections provided by ICWA and MIFPA, had the trial court asked Massey about his Native American Heritage; Massey therefore has not shown that he is entitled to any appellate relief on plain error review. Carines, 460 Mich at 763; In re Morris, 491 Mich at 120-121 ("If no Indian child is involved, however, or the tribe given proper notice does not respond within the times allotted by 25 USC 1912(a), any notice violation is harmless.").
We are cognizant of the importance of protecting the best interests of Indian children by complying with the provisions of ICWA and MIFPA as well as the notion that "if we are to err, we are to err on the side of caution, protecting the interests of Indian children, families, and tribes to avoid later potential disruptions in the child's life." In re Jones, 316 Mich App at 117, citing In re Morris, 491 Mich at 88-89, 106-107. We of course continue to follow this approach and note the particular importance of carefully complying with ICWA and MIFPA at the trial court level in order to prevent further unnecessary disruptions to the stability of the lives of children affected by termination-of-parental-rights proceedings.
However, we believe that the approach on appeal is different in a very limited respect, as illustrated by the instant case: in a situation where the respondent-appellant in a termination-of-parental-rights case never raises the issue in the trial court and then claims on appeal that ICWA or MIFPA was violated, thus implicating plain error review, the respondent-appellant must provide some evidence demonstrating that there is a genuine factual issue regarding whether the minor child at issue is an Indian child such that conditional reversal and remand is warranted to resolve the issue whether ICWA and MIFPA notice was required. See In re Morris, 491 Mich at 89, 120-121 (holding that "the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue" and explaining that "a conditional reversal states that the ruling is reversed unless [the trial court concludes on remand that] ICWA does not apply"). A contrary rule would potentially allow respondents in termination-of-parental rights cases to secure conditional remands and an additional hearing in the trial court on the basis of wholly unsupportable assertions of Indian heritage made for the first time on appeal, unnecessarily delaying permanency and stability for the minor children in those cases. The circumstances of the instant case are clearly different from those discussed in In re Morris and In re Jones where the respondent-parents had raised the issue of Indian heritage in the respective trial courts and obtained appellate relief in the form of conditional reversals of the trial courts' orders terminating parental rights and remands for resolution of the tribal notice issues. See In re Morris, 491 Mich at 90-91, 94-96, 109, 122-123; In re Jones, 316 Mich App at 115-118.
We additionally clarify that our holding is not that Massey waived his ICWA and MIFPA notice issue by failing to raise it below. See In re Morris, 491 Mich at 89 (holding that "a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child's tribe"). Instead, we merely hold that Massey has failed to meet his burden on appeal of demonstrating that a ground for appellate relief actually exists with respect to this issue.
2. NOTICE
Next, Massey argues that the trial court lacked personal jurisdiction over him and that his adjudication is void because the trial court failed to make a finding that personal service was impractical before permitting him to be served by publication.
This Court "review[s] de novo whether a court has properly obtained personal jurisdiction over a party." In re Dearmon, 303 Mich App 684, 693; 847 NW2d 514 (2014) (citation omitted).
As we have previously explained regarding the notice requirements in child protective proceedings:
A parent of a child who is the subject of a child protective proceeding is entitled to personal service of a summons and notice of proceedings. MCL 712A.12; MCR 3.920(B)(4)(a). However, in cases in which personal service is impracticable, substituted service is permissible. MCL 712A.13; MCR 3.920(B)(4)(b). Substituted service is sufficient to confer jurisdiction on the court. In re Mayfield, 198 Mich App 226, 231; 497 NW2d 578 (1993). [In re SZ, 262 Mich App 560, 564-565; 686 NW2d 520 (2004).]
"MCL 712A.13 is the controlling statute regarding substituted service . . . " In re SZ, 262 Mich App at 566. That statute provides in relevant part as follows:
Service of summons may be made anywhere in the state personally by the delivery of true copies thereof to the persons summoned: Provided, That if the judge is satisfied that it is impracticable to serve personally such summons or the notice provided for in the preceding section, he may order service by registered mail addressed to their last known addresses, or by publication thereof, or both, as he may direct. It shall be sufficient to confer jurisdiction if (1) personal service is effected at least 72 hours before the date of hearing; (2) registered mail is mailed at least 5 days before the date of hearing if within the state or 14 days if outside of the state; (3) publication is made once in some newspaper printed and circulated in the county in which said court is located at least 1 week before the time fixed in the summons or notice for the hearing. [MCL 712A.13.]
Also relevant is MCR 3.920(B)(4)(b), which provides as follows:
If the court finds, on the basis of testimony or a motion and affidavit, that personal service of the summons is impracticable or cannot be achieved, the court may by ex parte order direct that it be served in any manner reasonably calculated to give notice of the proceedings and an opportunity to be heard, including publication.
In this case, at the April 5, 2017 hearing, the court specifically asked about the attempts to locate Massey, and the prosecutor explained that the DHHS had made extensive efforts to locate Massey but had been unsuccessful. The prosecutor further explained that although it been suggested that Massey was incarcerated in North Carolina, Massey had not been located despite a thorough investigation of the relevant records. Additionally, the absent parent protocol had been used. The court stated, "I believe you've made all the efforts." Nonetheless, the court continued the proceedings to a later date to allow more time for further efforts to locate and serve Massey. At the April 13, 2017 hearing, the court indicated that Massey could be served by publication.
On appeal, Massey only argues that the trial court failed to make an explicit finding on the record that personal service was impractical; he does not argue that personal service was actually practical at the time that service by publication was accomplished. Indeed, Massey was a fugitive from federal custody at the time that service was made by publication, and his whereabouts could not be determined despite the extensive efforts made to locate him. Massey does not argue that it would have been unjustified for the court to find that personal service was impractical, warranting substitute service by publication. Furthermore, there is no indication in the record that personal service on Massey would have been practical at the time publication was made considering the undisputed fact that he was a federal fugitive.
However, there is no such requirement that the trial court make an explicit finding on the record of impracticality before substitute service may be ordered, see MCL 712A.13, and even if there were such a requirement, we find it sufficiently apparent from the record that the trial court in fact found personal service to be impractical due to Massey's unknown whereabouts when it indicated that the DHHS had made all reasonable efforts to locate him. The fact that the trial court gave the DHHS some additional time to continue trying to find Massey does not negate the trial court's finding in this regard. The plain language of "MCL 712A.13 reflects our Legislature's policy considerations concerning the necessary requirements for obtaining jurisdiction over a parent or guardian of a juvenile." In re SZ, 262 Mich App at 568. To the extent MCR 3.920(B)(4)(b) could be understood to imply that a more formally prescribed type of finding on the record is required of the trial court, the statutory language of MCL 712A.13 controls since the issue of notice that is presented in this case is a jurisdictional issue. In re SZ, 262 Mich App at 567 ("Because this case involves the jurisdictional issue of notice requirements, the conflict between this statute[, MCL 712A.13,] and court rule[, MCR 3.920(B)(4)(b),] is decided in favor of the statute. It is well-established that a failure to follow the court rules regarding notice requirements does not establish a jurisdictional defect, although a failure to provide the applicable statutory notice would."). In this case, Massey has not demonstrated that the trial court erred with respect to the notice requirements of MCL 712A.13 or that the trial court lacked personal jurisdiction over him. Under these circumstances, service by publication was sufficient to confer jurisdiction on the court. MCL 712A.13; In re SZ, 262 Mich App at 565.
3. STATUTORY GROUNDS
Lastly, Massey challenges the court's findings that there existed statutory grounds to terminate his parental rights.
"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). This Court "review[s] for clear error [] the court's decision that a ground for termination has been proven by clear and convincing evidence . . . " In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000), abrogated by statute on other grounds as stated in In re Moss, 301 Mich App 76, 83, 88; 836 NW2d 182 (2013). "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 Moss, 301 Mich App at 80 (quotation marks and citation omitted).
In this case, one of the statutory grounds relied on by the trial court was MCL 712A.19b(3)(a)(ii), which permits termination of parental rights when "[t]he child's parent has deserted the child for 91 or more days and has not sought custody of the child during that period."
At the June 18, 2018 termination hearing regarding Massey, Smith testified that Massey last saw MAP when he was two years old; MAP was eight years old by the time of the termination hearing. Smith further testified that since the time when MAP was two years old, Massey had not written MAP any letters, acknowledged MAP's birthdays or holidays, or otherwise stayed in contact with MAP. According to Smith, Massey had not provided any financial support during this time despite the fact that he had been ordered to pay child support. Smith also testified that at some point in 2016 while Massey was incarcerated, she put money on Massey's telephone account and Massey called to speak to MAP from prison. Smith had maintained the same telephone number since this time. Smith indicated that MAP never asks about Massey and does not refer to him as his father. Massey testified and admitted that he last saw MAP when MAP was two years old. Massey stated that he did not have a bond with MAP, did not know how MAP was doing in school, and did not know how MAP was doing in foster care. Massey claimed that he never had Smith's telephone number; he asserted that his mother had Smith's telephone number but that his mother lost her phone and lost contact with Smith as a result. There was also evidence that Smith never attempted to prevent or interfere with a relationship between Massey and his son, and it is clear from the testimony that Massey did not take any serious initiative to attempt to reconnect with MAP over the course of six years. If he had truly wanted to continue a relationship with MAP, he could have taken action rather than being content to let multiple years pass without taking any proactive step to directly initiate contact with Smith and MAP, essentially acquiescing to his lack of contact with MAP. Based on the record evidence, it was reasonable for the trial court to conclude that Massey deserted MAP for 91 or more days and failed to seek custody of him during that period.
After reviewing the record evidence, we conclude that the trial court did not clearly err by finding that MCL 712A.19b(3)(a)(ii) had been established by clear and convincing evidence as a statutory ground supporting termination. Because at least one statutory ground existed to properly support termination, we need not consider the additional grounds relied upon by the trial court. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
B. DOCKET NO. 345231 (RESPONDENT BRISCOE)
1. STATUTORY GROUNDS
Respondent Briscoe first argues that the trial court erred by finding that the statutory grounds for termination were established by clear and convincing evidence.
We note that Briscoe's trial counsel conceded in her closing argument that statutory grounds existed to terminate Briscoe's parental rights, deciding only to argue that termination was not in the best interests of the minor children. "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 in the trial court." 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 NW2d 115 (2011); see also Holmes, 281 Mich App at 588 ("A party cannot stipulate a matter and then argue on appeal that the resultant action was error.") (quotation marks and citation omitted). Therefore, this issue is waived. People v Carter, 462 Mich 206, 214-215; 612 NW2d 144 (2000).
Moreover, for the same reasons discussed below within the context of Briscoe's ineffective assistance of counsel claim, we conclude that the trial court did not clearly err by finding that termination of Briscoe's parental rights was supported by MCL 712A.19b(c)(i).
2. BEST INTERESTS
Next, Briscoe challenges the trial court's finding that termination of his parental rights was 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 Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). "[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App at 90. We review a trial court's best-interests determination for clear error. In re Trejo, 462 Mich at 356-357.
A trial 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 at 42. The court may also consider psychological evaluations, the child's age, a parent's continued involvement in domestic violence, and a parent's history. In re Jones, 286 Mich App 126, 131; 777 NW2d 728 (2009).
In this case, the trial court did not clearly err when it found that termination of Briscoe's parental rights was in the children's best interests. The evidence established that Briscoe had not adequately addressed his domestic violence, substance abuse, or housing issues, and as a result, the children would be at risk of harm in his care. There was testimony that Briscoe had relocated to Texas in November 2017, without informing the foster care worker. Briscoe had provided no address or proof of where he was living in Texas, stating to the foster care worker that he moved around and did not have a legal address. Briscoe claimed to be doing hurricane disaster relief work, but he had only provided one paystub for a single two-week period in February 2018. He further indicated that he was not involved in any services in Texas despite also making it clear to the foster care worker that he accurately understood what was required of him under the parent-agency treatment plan. During the course of the case, father only completed 12 of his required 107 drug screens, and he tested positive for cocaine 4 times and alcohol twice. Briscoe had also been terminated from his individual therapy for non-compliance after attending only one session, although his individual therapy could have addressed his domestic violence issues. He did not participate in any other domestic violence services, and as a result of his failure to address this issue in either individual therapy or through classes, he failed to address his problem with domestic violence.
Indeed, the children had already been negatively impacted by Briscoe's conduct. LKPB exhibited behavioral issues and was diagnosed with adjustment disorder. She was participating in weekly therapy. LKPB underwent a trauma assessment and the therapist concluded that she experienced trauma related to the domestic violence in the home. Therapy was also being considered for ADPB. While Smith denied that Briscoe physically abused her, she acknowledged that he did break property. She further admitted that the children were exposed to yelling and screaming and that they were probably very scared by this. LKPB demonstrated sexualized behavior and it was discovered that Briscoe had exposed the child to pornography. Further, LKPB was able to explain to her foster parents how "to do a line of cocaine," which she said she had learned from her father. Given the lack of evidence that Briscoe had adequately addressed his substance abuse and domestic violence issues, the children were reasonably likely to be further damaged if they were permitted to reunite with Briscoe.
Further, there was evidence supporting the conclusion that there was not a significant bond between Briscoe and the children. Briscoe attended 27 of 48 parenting time visits, although he continued to maintain contact with the children and Smith via video chats. AMPB and LKPB no longer asked about Briscoe, and ADPB did not express interest in Briscoe or speak about him at all. The attitude of the children indicated that Briscoe was no longer a central part of their lives. At the time of termination, Briscoe had not seen his children for more than eight months. Clearly, any bond that may have existed between Briscoe and his children had been damaged by his absence.
The children, who were all under the age of seven, required stability, structure, permanency, and finality in order to foster their continued growth and development. There was no evidence that Briscoe would be able to meet his children's needs anytime soon. Accordingly, the trial court did not clearly err when it found that termination of Briscoe's parental rights was in the children's best interests.
3. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, Briscoe argues that his trial counsel was ineffective for conceding that there were statutory grounds to terminate his parental rights. During closing argument, Briscoe's trial counsel stated:
At this point, your Honor, I'm not really arguing that there—I'm not arguing against statutory grounds. Obviously, there are statutory grounds that would give the Court a basis to terminate. What I am arguing is that it is not in the best interest of these children to not have a legal father.The record further reflects that Briscoe's trial counsel made a thorough argument in support of her position that termination was not in the best interests of the minor children. In order for a court to terminate parental rights, the court must find that "there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests." MCL 712A.19b(5) (emphasis added). In other words, negating either one of these findings effectively prohibits a court from terminating parental rights. Id.; see also In re Olive/Metts Minors, 297 Mich App at 40.
"The principles applicable to claims of ineffective assistance of counsel in the arena of criminal law also apply by analogy in child protective proceedings; therefore, it must be shown that (1) counsel's performance was deficient, falling below an objective standard of reasonableness, and that (2) the deficient performance prejudiced the respondent." In re Martin, 316 Mich App 73, 85; 896 NW2d 452 (2016). With respect to this second prong, it is necessary to establish that "but for counsel's deficient performance, a different result would have been reasonably probable." People v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011). Because Briscoe did not raise a claim of ineffective assistance of counsel by moving for a new trial or evidentiary hearing, our review of this issue is limited to considering whether the appellate record supports his claim. People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000).
In this case, as previously discussed, there was evidence that Briscoe had not provided any indication that he had adequately addressed his issues regarding substance abuse, domestic violence, and lack of suitable housing. These were conditions that had led to his adjudication, the evidence clearly supported the conclusion that these conditions continued to exist, and more than 182 days had passed between the initial disposition and the termination hearing. Further, Briscoe failed throughout the duration of the case to meaningfully attempt to demonstrate that he had addressed these issues. He missed the vast majority of his required drug screens, and he still tested positive for cocaine and alcohol on multiple occasions when he did complete drug screens. He simply refused to participate in individual therapy where he could have demonstrated efforts to address his domestic violence issues. And he indicated that he did not have a legal address in Texas where he claimed to have regular employment. Given his failures to demonstrate that he had achieved any progress in the areas that led to his adjudication in this matter, there was no reasonable likelihood that Briscoe would actually rectify these conditions within a reasonable time considering the young ages of his minor children.
Therefore, a statutory ground for termination was clearly established under MCL 712A.19b(3)(c)(i) (permitting termination of parental rights if the "parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds . . . [t]he conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age"). Termination need only be supported by a single statutory ground. In re HRC, 286 Mich App at 461.
Briscoe argues on appeal that the trial court was precluded from relying on MCL 712A.19b(3)(c)(i) as a statutory ground because the DHHS failed to make reasonable efforts to preserve the family with respect to Briscoe's domestic violence issue. In making this argument, Briscoe relies on the facts that (1) a DHHS policy prohibited the DHHS for paying for domestic violence classes in situations such as the instant one where the respondent at issue had been deemed the domestic violence aggressor unless ordered by the court and (2) the trial court refused to order the DHHS to pay for domestic violence classes when a request for such an order was made. However, Briscoe's appellate argument fails to acknowledge that Briscoe had the opportunity to address his domestic violence issues in individual therapy and that he was terminated from individual therapy for noncompliance because he missed appointments and chose not to participate. "While the DHS has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondents to participate in the services that are offered." In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012). This includes the requirement that the respondent "sufficiently benefited from the services provided." Id. Thus, Briscoe's focus on whether the trial court should have ordered the DHHS to pay for domestic violence classes due to Briscoe's financial inability to pay is a red herring; Briscoe has not shown that the DHHS failed to make reasonable efforts because he nonetheless was provided with an opportunity to address his domestic violence issues and he did not fulfill his responsibility to participate in the services offered. Id. Moreover, Briscoe's appellate argument fails to acknowledge the continuing existence of his issues with substance abuse and lack of adequate housing.
Accordingly, Briscoe has not demonstrated that there exists a reasonable probability that the outcome of the termination hearing would have been different but for his attorney's concession regarding statutory grounds. Armstrong, 490 Mich at 290. Because Briscoe has not satisfied the prejudice prong, he has not demonstrated that he was denied the effective assistance of counsel. Strickland v Washington, 466 US 668, 700; 104 S Ct 2052; 80 L Ed 2d 674 (1984) ("Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.").
III. CONCLUSION
We conclude that neither Massey nor Briscoe have demonstrated the existence of any error requiring reversal. Consequently, we affirm the trial court's order terminating Massey's parental rights in Docket No. 344900, and we affirm the trial court's order terminating Briscoe's parental rights in Docket No. 345231.
Affirmed.
/s/ Stephen L. Borrello
/s/ Brock A. Swartzle
/s/ Thomas C. Cameron