Opinion
No. 350586
02-18-2020
In re A. A. SHEPHERD, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED St. Joseph Circuit Court Family Division
LC No. 16-000753-NA Before: SAWYER, P.J., and MARKEY and STEPHENS, JJ. PER CURIAM.
Respondent-father appeals as of right the order terminating his parental rights to his minor child under MCL 712A.19b(3)(g) (failure to provide proper care and custody), (j) (reasonable likelihood that the child will be harmed if returned to the parent), and (a)(ii) (desertion for 91 days or more). For the reasons stated later in this opinion, we affirm.
The Department of Health and Human Services (DHHS) filed a petition for the removal of father's child because father was incarcerated at the time of the child's birth. Father was unable to provide for the care and custody of the child. The trial court ordered that the child be removed from father's care and custody. The father entered a plea of admission, and the DHHS provided father services, which included drug testing, individual counseling, and parenting education. The trial court also ordered that father pass three consecutive drug screenings before the DHHS provide father parenting time. Father was eventually released from prison after the initiation of this case, but father never participated in any of the services that the DHHS provided. Father was also unable to maintain employment or housing. Additionally, father declined to take any drug tests, so he never met his child. The trial court terminated father's parental rights, and he now appeals.
Father argues that the trial court violated his constitutional right to an objective and impartial decision-maker. We disagree.
This Court reviews for plain error affecting substantial rights unpreserved issues of constitutional law. In re Williams, 286 Mich App 253, 274; 779 NW2d 286 (2009). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008). Even if the trial court committed a plain error, this Court must only reverse "when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. (quotation marks and citation omitted; alteration in the original).
"A trial judge is presumed to be impartial and the party who asserts partiality has a heavy burden of overcoming that presumption." In re MKK, 286 Mich App 546, 566; 781 NW2d 132 (2009). To prove prejudice, the party contending that the trial judge was biased must show "that the source of the bias be in events or information outside the judicial proceeding." Id. Generally, a trial judge's critical or hostile remarks to a party do not prove disqualifying bias or prejudice. Id. at 567. Additionally, a trial judge's ruling against a party also does not establish bias or prejudice, even if the trial judge's ruling is erroneous. Id. at 566.
In this case, the DHHS filed a petition for the removal of the child from the care and custody of her father in August 2018. In March 2019, the DHHS submitted the termination of parental rights petition. In April 2019, the trial court scheduled the termination hearing for June 2019, which means that the termination hearing was scheduled less than a year after the DHHS filed its initial petition. At the May 2019 review and motion hearing, the referee noted that the termination hearing would remain scheduled for June 2019 However, the termination hearing was not actually held until August 2019, over a year after the DHHS filed its petition.
Father contends that he was denied an objective and impartial decision-maker during the termination proceedings because the trial court allowed the DHHS to file its termination petition before the permanency planning hearing. However, his argument is without merit. MCR 3.977(H)(1)(a) states that the DHHS may file a petition seeking the termination of a parent's parental rights "at any time after the initial dispositional review hearing, progress review, or permanency planning hearing, whichever occurs first." This means that when the DHHS filed its petition seeking the termination of father's parental rights in March 2019, after father's initial dispositional hearing, it was permitted to do so. See MCR 3.977(H)(1)(a).
Father also contends that he was denied a fair trial with an impartial decision-maker because the trial court stated at the May 2019 review and motion hearing, that father's termination hearing was scheduled for June 2019. However, this argument is also without merit. MCL 712A.19a governs permanency planning hearings. MCL 712A.19a(1) states that "if a child remains in foster care and parental rights to the child have not been terminated, the court shall conduct a permanency planning hearing within 12 months after the child was removed from his or her home." Notably, the express language of MCL 712A.19a(1) states that a permanency planning hearing must only be held if the "parental rights to the child have not been terminated . . . ." This language indicates that if the parental rights have been terminated, a permanency planning hearing is not necessary. Additionally, it indicates that a parent's parental rights may be terminated without the trial court first needing to hold a permanency planning hearing.
At the May 2019 hearing, the referee stated that the termination hearing was scheduled for June 2019. June 2019 was less than 12 months since the DHHS filed its initial petition, seeking the removal of the child from the care and custody of father. Therefore, at that time, a permanency planning hearing was not necessary before the termination hearing. See MCL 712.19a(1). The referee believed that the termination hearing would occur less than 12 months after the child was removed from the care of her father. See MCL 712A.19a(1).
Therefore, the statements and actions of the trial court do not indicate a lack of objectiveness or impartiality. The trial court was properly complying with the court rules and statutes that are implicated in the termination proceedings. Father did not meet his burden. See MKK, 286 Mich App at 566.
Father also contends that the trial court's bias was evident because it did not conduct a permanency planning hearing. Though the trial court should have conducted a permanency planning hearing, the trial court's failure to conduct a hearing does not indicate that it was biased or partial. As stated earlier, MCL 712A.19a(1) provides that a permanency planning hearing must occur within 12 months of a child being removed from the care and custody of a parent. MCL 712A.19a(1) also provides that even if a termination of parental rights petition is pending, the permanency planning hearing must be held within the 12 months.
In this case, the termination hearing was originally scheduled for June 2019, which means the hearing was scheduled for less than 12 months since the child was removed from the care and custody of father. However, for unknown reasons, the termination hearing was not actually held until August 2019, which means more than 12 months passed after the child's removal and the trial court was required to hold a permanency planning hearing. The trial court did not hold a permanency planning hearing before it terminated the parental rights of father. This means that the trial court committed a plain error. See Williams, 286 Mich App at 274.
However, even though the trial court failed to conduct a permanency planning hearing, father failed to prove that this occurred because the trial judge was biased or partial. As stated earlier, a trial judge's erroneous ruling is not enough to establish that a trial judge was biased. See MKK, 286 Mich App at 566. Additionally, father had to establish that the source of the bias must be from events outside the judicial proceedings, and father failed to do so. See id. Therefore, father failed to establish that the trial court failed to conduct a permanency planning hearing because it was biased.
Furthermore, even if father could establish that the trial court was biased, father failed to prove that his substantial rights were affected or that he was prejudiced from the trial court's actions or comments during the termination proceedings. See Utrera, 281 Mich App at 9. Father's assertion that he had no realistic opportunity to challenge the findings of the trial court regarding the "goal change to adoption" and whether the DHHS made reasonable efforts toward reunification is without merit. Those two issues were discussed at every hearing that father attended or received notice of after father made a plea of admission.
Father was present at every hearing except for the May 2019 hearing. However, the record indicates that he received notice of the May 2019 hearing, and father does not contend that he did not receive notice for each of the hearings. At each of the hearings, the trial court made findings regarding whether the DHHS made reasonable efforts to reunify the family. Additionally, at every hearing after father's plea of admission, the trial court discussed the placement of the child. Furthermore, at the May 2019 hearing, the trial court held an entire hearing on whether adoption or continued foster care was in the best interests of the child. After the hearing, the trial court changed the child's permanency planning goal to adoption.
Father contends that because the trial court did not hold a permanency planning hearing, he was denied his right to challenge the permanency planning goal to adoption. However, the goal change occurred in May 2019, before a permanency planning hearing was even required. See MCL 712A.19a(1). Additionally, the trial court notified father of that hearing, and father could have attended and challenged the trial court's determination then. Furthermore, father received the referee's findings and determinations along with the trial court's order following the May 2019 hearing. Finally, following the May 2019 hearing, the trial court held a full trial on whether the parental rights of father should be terminated. Father even testified at the trial.
Therefore, father failed to establish that the trial court acted partially or that he was denied due process. The trial court's actions did not affect father's substantial rights or prejudice father. See Utrera, 281 Mich App at 9.
Defendant also argues that the trial court violated his constitutional right to counsel because the trial court failed to provide him counsel at the preliminary hearing. However, father has waived this issue. See Matter of Jones, 137 Mich App 152, 155; 357 NW2d 840 (1984). In Jones, 137 Mich App at 155, this Court held that "[t]he failure to object to the procedure used at the preliminary hearing prior to the adjudicative hearing waive[s] [the respondent's] claim of error with respect to the preliminary hearing." In this case, father did not object to the lack of counsel at the preliminary hearing until his appeal. Nevertheless, we note that even if this issue were subject to review, reversal would not be required.
Affirmed.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Cynthia Diane Stephens