Opinion
No. 352275
08-13-2020
In re K. T. A. SASSIE, Minor.
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 UNPUBLISHED Oakland Circuit Court Family Division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. 2018-863906-NA Before: MARKEY, P.J., and K. F. KELLY and TUKEL, JJ. PER CURIAM.
Respondent appeals as of right the trial court order terminating her parental rights to the minor child, KS, under MCL 712A.19b(3)(c)(i), (g), (j), and (k)(i). Finding no errors warranting reversal, we affirm. This appeal is decided without oral argument. MCR 7.214(E)(1)(b).
I. BASIC FACTS
Petitioner, the Department of Health and Human Services (DHHS), filed a petition seeking temporary custody of KS after the infant tested positive at birth for cocaine, codeine, methamphetamines, and marihuana. The petition also alleged a domestic abuse altercation between respondent and KS's father. The incident apparently occurred in the presence of KS, and respondent was intoxicated to such an extent that she was unable to feed the infant. Respondent was arrested by the responding officers, but any charge was subsequently dismissed. As a result of the allegations, the petition was authorized.
The parental rights of KS's father were also terminated, but he is not a party to this appeal.
At the next hearing, respondent pleaded "no contest," with the child protective services (CPS) worker providing testimony to establish the factual basis for the plea. The trial court accepted the plea and found grounds to exercise jurisdiction. Ultimately, respondent agreed to a parent-agency treatment plan that required her to engage in substance abuse treatment and obtain housing and employment. The goal of the treatment plan was reunification. Although supervised visitation was permitted, it was recommended that respondent attend an inpatient program. Further, respondent was advised that visitation would not occur if she appeared intoxicated for a visit or if a drug screen was positive. Additionally, despite respondent's parenting skills, she was advised to focus on the visitation, not the infant's godparents, with whom the child was placed.
Over the next several months, the trial court held regular review hearings at which it found respondent failed to comply with the requirements of her treatment plan. Any progress by respondent was marred by periods of noncommunication with workers, admitted use of unprescribed Suboxone, her hostility toward the godparents, and criminality. Consequently, the permanency goal changed from reunification to termination of respondent's parental rights and adoption of KS, and DHHS filed a supplemental petition seeking termination. A termination hearing was held at which three foster care workers provided extensive testimony concerning respondent's failure to comply with the requirements of her treatment plan and her behavior during the infant's placement in the godparents' care. Respondent also provided evidence on her own behalf, admitting that she suffered from drug addiction. However, she also testified that, after a period of inpatient therapy, she was sober and made progress toward being able to care for KS. Ultimately, the trial court held that the statutory grounds for termination were proven by clear and convincing evidence and that termination of respondent's parental rights was in the best interests of KS.
II. PLEA PROCEDURE
Respondent contends the trial court failed to properly advise respondent of her rights when it accepted respondent's no contest plea to jurisdiction. 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) (citation omitted). However, this issue is unpreserved for appellate review because respondent did not object to the advice of rights provided by the trial court or seek to withdraw her appeal. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). Adjudicative errors raised after the trial court rendered its decision to terminate parental rights are reviewed for plain error. In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019). To establish plain error, a respondent must establish (1) error occurred; (2) the error was plain; and (3) the plain error affected her substantial rights. Id., citing People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Additionally, "the error must have seriously affect[ed] the fairness, integrity or public reputation" of the termination proceedings. In re Ferranti, 504 Mich at 29.
The procedure for accepting a plea is set forth in the court rules. The interpretation and application of the court rules presents a question of law this Court reviews de novo. In re McCarrick/Lamoreaux, 307 Mich App 436, 445; 861 NW2d 303 (2014). This Court "interprets court rules using the same principles that govern the interpretation of statutes." Id. at 46 (quotation marks and footnote omitted) The court rules must be interpreted to give effect to the intent of the Michigan Supreme Court. Id. The language of the court rule itself provides the best indication of intent. Id. "If the plain and ordinary meaning of a court rule's language is clear, judicial construction is not necessary." Id. (footnotes omitted).
Child protection proceedings in Michigan are divided into two phases, the adjudicative and the dispositional. In re Sanders, 495 Mich at 404. During the adjudicative phase, the trial court determines whether it can exercise jurisdiction over the child. Id. The trial court can acquire jurisdiction if the parent admits the allegations in the petition or pleads no contest to them. "Alternatively, the respondent may demand a trial (i.e., an adjudication) and contest the merits of the petition." Id. at 405 (citations omitted). If a trial is conducted, "the respondent is entitled to a jury, the rules of evidence generally apply, and the petitioner has the burden of proving by a preponderance of the evidence one or more of the statutory grounds for jurisdiction alleged in the petition." Id. (citations omitted). The protective procedure used in the adjudication process is designed to shield the parents from the risk of an erroneous deprivation of their parental rights. Id. Once the trial court assumes jurisdiction over the child, it will enter dispositional orders concerning the child's welfare, care, and placement. Id. at 406-407.
When a parent pleads no contest to allegations in the petition to allow the trial court to assume jurisdiction, due process principles require that the plea be voluntary and knowing to constitute an effective waiver because the parent has the fundamental right to direct the care, custody, and control of the child. In re Ferranti, 504 Mich at 21 (citations omitted). The court rules governing no contest pleas in child protection proceedings "reflect this due-process guarantee." Id. At the time respondent entered her plea in June 2018, MCR 3.971(B) addressed no contest pleas in child protection proceedings and stated in relevant part:
Before accepting a plea of admission or plea of no contest, the court must advise the respondent on the record or in a writing that is made a part of the file:
(1) of the allegations in the petition;
(2) of the right to an attorney, if respondent is without an attorney;
(3) that, if the court accepts the plea, the respondent will give up the rights to
(a) trial by a judge or trial by a jury,
(b) have the petitioner prove the allegations in the petition by a preponderance of the evidence,
(c) have witnesses against the respondent appear and testify under oath at the trial,
(d) cross-examine witnesses, and
(e) have the court subpoena any witnesses the respondent believes could give testimony in the respondent's favor;
The trial court was also required to ensure that a respondent's plea was voluntary and accurate. MCR 3.971(C) provided:
(4) of the consequences of the plea, including that the plea can later be used as evidence in a proceeding to terminate parental rights if the respondent is a parent.
(5) if parental rights are subsequently terminated, the obligation to support the child will continue until a court of competent jurisdiction modifies or terminates the obligation, an order of adoption is entered, or the child is emancipated by operation of law. Failure to provide required notice under this subsection does not affect the obligation imposed by law or otherwise establish a remedy or cause of action on behalf of the parent.
(1) Voluntary Plea. The court shall not accept a plea of admission or of no contest without satisfying itself that the plea is knowingly, understandingly, and voluntarily made.
(2) Accurate Plea. 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.
Although respondent contends that the trial court failed to properly advise her of her rights, MCR 3.971(B), and ensure that her plea was knowingly and voluntarily given, MCR 3.971(C), the record reveals that the trial court complied with the requirements of the court rule. First, the trial court questioned respondent regarding her receipt of the petition and the advice of rights form. Respondent confirmed that she was given the petition and the advice of rights form, and her attorney reviewed the documents with her. She further acknowledged that she was not under the influence of any substances and could read, write, and understand the English language. Respondent was apprised that she was entitled to have an attorney represent her throughout the proceedings, an attorney would be appointed if she could not afford one, and the proceeding was civil, not criminal, in nature. She was further advised of the right to a trial, the right to call and questions witnesses, the right to present a defense, the burden of proof, and the waiver of those rights as a result of the no contest plea. Respondent acknowledged the import of the no contest plea on future termination proceedings, there was no agreement or coercion underlying the plea, and declined the invitation to ask questions about the impact of the plea on future rights. The trial court then called CPS worker Monique Jackson to testify, under oath, regarding KS's positive drug screen at birth for four different substances, the infant's treatment in intensive care, and respondent's drug use dating back to 2013. Jackson testified regarding pre-petition efforts to provide drug treatment to respondent, but her prior criminality and the recent domestic violence incident disclosed the need to protect KS. The trial court expressed its satisfaction with the plea and accepted the no contest plea. The trial court's discussion ensured that respondent understood her plea would waive her right to an adjudication trial and the commensurate due-process rights as required by MCR 3.971(B)(3)(a)-(e).
Although respondent did not initial each statement on the advice of rights form, she signed the document at the bottom and her counsel also signed the document to certify his explanation of the rights to her.
Respondent nonetheless contends that the trial court failed to properly advise of her rights under MCR 3.971(B)(3)(c) because it neglected to state that the witnesses appearing against respondent would be required to testify "under oath." Respondent submits that this omission precluded her from completely understanding the right she was waiving. However, she does not present an affidavit or legal authority to support her contention. Further, the record shows respondent knew she was waiving the right to a trial before a judge or jury, where witnesses against her would appear and be subject to cross-examination, and where respondent would be permitted to call her own witnesses aided by the trial court's issuance of a subpoena. When the trial court substantially complies with the plea acceptance provision of the court rule, plain error affecting substantial rights is not established. In re Pederson, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 349881); slip op at 9.
This case does not mirror the factual scenario presented in the Ferranti decision where there was a complete failure to comply with the notice provisions of the court rule. Ferranti, 504 Mich at 21. Moreover, we note that respondent was able to observe the process of witness testimony and the taking of an oath because she was present for Jackson's sworn testimony.
Respondent next asserts her plea was not knowing and voluntary because the trial court failed to advise her of the consequences of her plea. This assertion is not borne out by the record. "[F]or a plea to constitute a valid waiver of constitutional rights, the person entering it must be made fully aware of the direct consequences of the plea." Id. A direct consequence "presents a definite, immediate and largely automatic effect on a defendant's range of punishment." Id. (quotation marks and citation omitted).
Respondent asserts she was not informed the trial court could exercise dispositional authority over KS as a result of her plea. However, at the beginning of the plea colloquy, respondent acknowledged that the petition stated KS was in need of protection because of abuse or neglect and informed the trial court that she had sufficient time to discuss the allegations with her trial counsel. Indeed, respondent knew that the infant was placed with his godparents because of the domestic violence, respondent's inebriated condition, and her inability to care for KS when the police arrived. Respondent also stated she understood the nature of the proceedings. Similarly, the advice of rights form signed by respondent contained a clause stating that after accepting respondent's plea the trial court "may then find that the child(ren) is/are within its jurisdiction. This means that the court will make decisions about their care, including where they are placed." While respondent correctly contends she did not initial the line item containing this information, respondent did sign the bottom of the form stating her trial counsel read and explained to her all the information contained in the form, which would have included this description of proceedings. Similarly, respondent stated she had sufficient time to discuss the petition and proceedings with her trial counsel. Considering these circumstances, respondent's claim that she was not advised of this consequence is without merit.
Respondent also asserts that the trial court failed to advise respondent of the continuing obligation to support KS. However, respondent acknowledged that the plain language of MCR 3.971(B)(5) provides that the failure to advise of this obligation does not afford her a remedy. Furthermore, "parental rights are independent from parental duties." In re Beck, 488 Mich 6, 15; 793 NW2d 562 (2010). Thus, "even after a parent's rights have been terminated, the obligation to support continues . . . ." Id. --------
Finally, respondent asserts the trial court failed to satisfy itself that respondent's plea was knowing, intelligent and voluntary under MCR 3.971(C)(1), as codified at the time of respondent's plea. A plea is knowing and intelligent when an individual has "sufficient awareness of the relevant circumstances and likely consequences." In re Pederson, ___ Mich App at ___; slip op at 9 (quotation marks and citation omitted). The record demonstrates the trial court ensured respondent was aware of the petition's allegations, understood them, and spoke with her trial counsel concerning the allegations. It also ensured respondent was not under the influence of alcohol or drugs at the time of her plea. The trial court informed respondent of her right to counsel and to have the allegations proven by a preponderance of the evidence at an adjudication trial. It further advised respondent of the consequences of her plea. Thus, the record demonstrates the trial court actively ensured respondent was aware of—and respondent stated she understood—the circumstances and consequences of her plea. In re Pederson, ___ Mich App at ___; slip op at 9, 12 (citation omitted). Similarly, the trial court determined the voluntariness of respondent's plea by ensuring respondent was not being forced to enter a plea or that respondent's plea was the result of an agreement. Thus, while the trial court did not expressly state that it was satisfied respondent's plea was knowing, intelligent, and voluntary, the record demonstrates the trial court actively took steps to ensure respondent's plea met these criteria. Respondent failed to demonstrate plain error affecting her substantial rights.
III. TERMINATION OF PARENTAL RIGHTS
"To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). "We review for clear error a trial court's finding of whether a statutory ground for termination has been proven by clear and convincing evidence." Id.; see also MCR 3.977(K). Once a statutory ground for termination has been established, the trial court must conclude that termination of parental rights is in the child's best interests before it can terminate parental rights. MCL 712A.19b(5); In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). A trial court's decision regarding a child's best interests is also reviewed for clear error. In re Laster, 303 Mich App 485, 496; 845 NW2d 540 (2013).
Although respondent did not contest the trial court's termination of her parental rights and conclusion that termination was in KS's best interests, the trial court did not clearly err in finding a statutory basis for termination and that it was in the infant's best interests. Respondent began abusing substances in 2013. Although DHHS attempted to provide services, respondent did not succeed in her inpatient substance abuse program. Additionally, she failed to communicate with workers, was hostile to the godparents, and continued to engage in criminal behavior. Despite respondent's recent report of success in a drug court treatment program, respondent had not communicated with caseworkers or visited the infant for at least six months. Under the circumstances, the trial court did not clearly err in its ultimate disposition.
Affirmed.
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel