Opinion
No. 351590
05-21-2020
In re ROWLEY, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Hillsdale Circuit Court Family Division
LC No. 18-000828-NA Before: TUKEL, P.J., and MARKEY and GADOLA, JJ. PER CURIAM.
Respondent-father appeals by right the trial court's order terminating his parental rights to the two minor children. Respondent argues (1) that the trial court erred by conducting a review hearing without respondent being present, and (2) that the trial court failed to comply with the procedural notice requirements of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq. We affirm.
Respondent admitted that he had engaged in sexual contact with his 12-year-old stepdaughter since she was eight or nine years old. The sexual abuse included cunnilingus, and respondent warned the victim not to tell anyone. The sexual assaults led respondent to plead guilty to second-degree criminal sexual conduct (CSC-II), MCL 750.520c, and he was sentenced to 3 to 15 years' imprisonment. At the termination hearing, the mother of the minor children testified that the children knew the reason for their father's imprisonment—the sexual abuse of their sibling—and did not ask for him. Dr. James Henry, an expert in child sexual abuse and trauma, concluded that there was significant risk of severe anxiety, depression, and self-harm relative to the minor children resulting from respondent's actions. Dr. Henry opined that further exposure to respondent would be "devastating" to the children's development. He recommended that the trial court terminate respondent's parental rights to avoid harming those children any further.
A trauma assessment revealed that one of the children had witnessed the sexual molestation.
The trial court found clear and convincing evidence that termination of respondent's parental rights was appropriate under MCL 712A.19b(3)(b)(i) (sibling of child suffered sexual abuse committed by respondent parent), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood of harm if child returned to parent). Notably, respondent's counsel admitted "that there's no question" that petitioner had proven statutory grounds for termination. Respondent instead argued that termination of his parental rights was not in the children's best interests. The trial court rejected this argument on the basis of Dr. Henry's testimony, the need to avoid having the young children be further traumatized by additional contact with respondent, and the absence of any continuing bond between the children and respondent. On appeal, respondent does not challenge the trial court's findings with respect to the statutory grounds for termination and the children's best interests.
Respondent first contends that he never had the opportunity to review a particular letter that was admitted into evidence at a July 2, 2019 hearing. He maintains that the trial court erred by conducting the hearing without respondent being present. Respondent argues that the error and inability to review the letter created "a 'hole' in the evidence," undermining the fairness, integrity, and reputation of the proceedings. Respondent did not preserve this issue in the trial court.
Under plain-error review regarding an unpreserved issue, a respondent is required to establish that "(1) error occurred; (2) the error was 'plain,' i.e., clear or obvious; and (3) the plain error affected . . . substantial rights." In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019). A plain error affects substantial rights when it is prejudicial, meaning that the error affected the outcome of the lower court proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Also, it must be shown that the error seriously affected the integrity, fairness, or public reputation of the child protective proceedings before reversal is warranted. In re Ferranti, 504 Mich at 29.
Assuming that respondent was not present at the hearing on July 2, 2019, by phone or otherwise, we cannot conclude that the trial court committed plain error affecting respondent's substantial rights. We note that counsel for respondent was indeed present at the hearing and agreed to the admission of the letter.
We cannot discern whether respondent's absence by phone was even caused by any failure on the part of the trial court. We find notable that respondent does not assert unequivocally that he was not given the opportunity to participate, but only that his participation was not noted on the record.
MCR 2.004 provides the process attendant to an incarcerated party exercising his or her right to participate in court proceedings regarding the party's children. In In re Mason, 486 Mich 142, 154-155; 782 NW2d 747 (2010), our Supreme Court, citing MCR 2.004, stated:
A child protective action such as this consists of a series of proceedings, including a preliminary hearing at which the court may authorize a petition for removal of a child from his home, MCL 712A.13a(2), review hearings to evaluate the child's and parents' progress, MCL 712A.19, permanency planning hearings, MCL 712A.19a, and, in some instances, a termination hearing, MCL 712A.19b. Each proceeding generally involves different issues and decisions by the court. Thus, to comply with MCR 2.004, the moving party and the court must offer the parent "the opportunity to participate in" each proceeding in a child protective
action. For this reason, participation through "a telephone call" during one proceeding will not suffice to allow the court to enter an order at another proceeding for which the parent was not offered the opportunity to participate.
This case illustrates the point well. Although respondent participated by phone in the July 24, 2007, pretrial hearing, he was not offered the opportunity to participate in the review or permanency planning hearings held from August 2007 through July 2008. By the time respondent participated in the December 3, 2008, permanency planning hearing—16 months after he last participated—the court and the DHS were ready to move on to the termination hearing. Thus, respondent missed the crucial, year-long review period during which the court was called upon to evaluate the parents' efforts and decide whether reunification of the children with their parents could be achieved. Indeed, respondent was practically excluded from almost every element of the review process, as is further detailed below.
Here, respondent missed, at most, a single hearing. And at the hearing, the trial court merely maintained its current orders pending the outcome of scheduled trauma assessments and did not actually grant any relief that changed the status quo. Moreover, respondent fails to identify the contents or importance of the June 25, 2019 letter, which simply consisted of a recounting by petitioner that respondent had pleaded guilty and was convicted of CSC-II in the criminal case, along with petitioner's recommendation that the trial court terminate respondent's parental rights. Respondent does not explain why the admission of the letter constituted plain error or why it was otherwise objectionable. There is absolutely no basis to conclude that had respondent participated in the hearing, a viable ground to exclude the letter could have been posited. Indeed, "[b]efore the court enters an order of disposition, the court shall consider . . . any . . . evidence offered." MCL 712A.18f(4) (emphasis added). Assuming plain error, we find that respondent has not established the requisite prejudice or that the error seriously affected the fairness, integrity, or public reputation of the child protective proceedings. There was significant evidence supporting termination, including respondent's admission to sexually abusing his stepdaughter and Dr. Henry's testimony about the emotional and psychological harm the children would suffer if ever returned to respondent's care.
We also reject respondent's argument that the trial court erred when it failed to determine on the record whether the children had Native American heritage and when it failed to comply with ICWA and MIFPA notice requirements. Under both the ICWA and the MIFPA, notice requirements are implicated when a court knows or has reason to know that an Indian child is involved in a child protective proceeding. 25 USC 1912(a); MCL 712B.9(1). The statutory notice must be given to a child's tribe and others when there exists sufficiently reliable information of virtually any criteria upon which tribal membership could be based, including information that merely suggests that a child, the child's parent, or a person in the parent's family is a member of an Indian tribe. In re Jones, 316 Mich App 110, 113; 894 NW2d 54 (2016).
In the instant case, the trial court at the preliminary hearing asked respondent about any Indian heritage. Respondent stated that his "grandpa's brother lives on the reservation in Ohio," which belongs to the Blackfoot band or tribe, and that he did not "know any percentage of anything." Subsequently, and after further investigation, respondent signed a form—included in the trial court record—expressly acknowledging that neither child actually had any Indian heritage. Notably, on appeal, respondent does not assert otherwise. We thus conclude that reversal is unwarranted.
We affirm.
/s/ Jonathan Tukel
/s/ Jane E. Markey
/s/ Michael F. Gadola