Opinion
No. 351263
05-21-2020
In re SHERIDAN, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kent Circuit Court Family Division
LC Nos. 17-053435-NA 17-053436-NA Before: TUKEL, P.J., and MARKEY and GADOLA, JJ. PER CURIAM.
Respondent-father appeals by right the order terminating his parental rights to the minor children following his agreement to the termination of his parental rights. Although the trial court made some errors relative to the adjudication, reversal is unwarranted in light of respondent's decision to expressly agree to the termination of his parental rights. Accordingly, we affirm.
Respondent was convicted of first-degree murder, MCL 750.316, in the death of the children's mother. He was sentenced to imprisonment for life without the possibility of parole. Before going into the history of this case it is helpful to review the framework of a child protective proceeding to give the proper context to our discussion of the facts. The Department of Health and Human Services (DHHS), following an investigation, may petition a court to take jurisdiction over a child. In re Ferranti, 504 Mich 1, 15; 934 NW2d 610 (2019), citing MCR 3.961(A). The petition must contain essential facts that, if proven, would permit the court to assume and exercise jurisdiction over the child. MCR 3.961(B)(3); MCL 712A.2(b); In re Ferranti, 504 Mich at 15. If a petition is authorized, the adjudicative phase of the proceedings takes place, and the "question at adjudication is whether the court can exercise jurisdiction over the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders, including an order terminating parental rights." In re Ferranti, 504 Mich at 15.
She was also respondent's wife.
Respondent currently has an appeal of the criminal case pending in this Court. People v Sheridan (Docket No. 350525).
A court can take and exercise jurisdiction if a respondent "make[s] a plea of admission or of no contest to the original allegations in [a] petition." MCR 3.971(A); see also In re Ferranti, 504 Mich at 15. "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." MCR 3.971(D)(2). MCR 3.971(B)(3) requires a court to advise a respondent of the numerous rights that the respondent is waiving by entering a plea, and MCR 3.971(B)(4) requires a court to inform a respondent of the consequences of the plea. MCR 3.971(B)(6) through (8) require a court to advise a respondent of certain appellate rights. And MCR 3.971(C) provides, in part, that "the respondent may challenge the assumption of jurisdiction in an appeal from the order terminating respondent's parental rights if the court fails to properly advise the respondent of their right to appeal pursuant to subrule (B)(6)-(8)."
MCR 3.971(B) provides, in pertinent 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:
* * *
(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;
(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.
These provisions in MCR 3.971(B) require the court to inform a respondent of the following:
(6) that appellate review is available to challenge a court's initial order of disposition following adjudication, and such a challenge can include any issues leading to the disposition, including any errors in the adjudicatory process;
(7) that an indigent respondent is entitled to appointment of an attorney to represent the respondent on appeal of the initial dispositional order and to preparation of relevant transcripts; and
(8) [that] respondent may be barred from challenging the assumption of jurisdiction in an appeal from the order terminating parental rights if they do not timely file an appeal of the initial dispositional order under MCR 3.993(A)(1), 3.993(A)(2), or a delayed appeal under MCR 3.993(C).
The respondents in In re Ferranti did not properly preserve a jurisdictional challenge, but neither did they voluntarily release their parental rights or agree to the termination of their parental rights. The trial court held a full termination hearing after it had earlier failed to inform the respondents of their waived rights under MCR 3.971(B) when accepting their pleas during the adjudication. In re Ferranti, 504 Mich at 8-13. Our Supreme Court stated and ruled:
The trial court did not advise the respondents that they were waiving any of the important rights identified in MCR 3.971(B)(3). And it failed to advise the respondents of the consequences of entering their pleas. MCR 3.971(B)(4). This failure resulted in the respondents' constitutionally defective pleas and undermined the foundation of the rest of the proceedings. The defective pleas allowed the state to interfere with and then terminate the respondents' fundamental right to parent their child. Due process requires more: either a plea hearing that comports with due process and the court rule or, if respondents choose, a trial. MCR 3.971; MCR 3.972. We thus vacate the trial court's order of adjudication. [Id. at 31.]
In this case, the DHHS filed a petition for the removal of the minor children from the care and custody of respondent after he was arrested for the murder. The DHHS recommended that the trial court terminate respondent's parental rights. At the preliminary hearing, the trial court authorized the petition and determined that reasonable efforts would not be made to reunify respondent with the children given the aggravating circumstances. Respondent filed a written demand for a jury trial, and the trial court scheduled a three-day jury trial. But respondent's counsel subsequently informed the trial court that respondent was withdrawing his request for a jury trial. A series of adjournments caused by matters connected to respondent's criminal case resulted in delays in the child protective proceedings for over a year. By the time of the scheduled adjudication trial and termination hearing on September 4, 2019, respondent had been convicted of first-degree murder and sentenced to life in prison, and he had a new attorney who claimed that respondent had not effectively waived his right to a jury trial. The DHHS took a position to the contrary.
At the hearing, the trial court first addressed the dispute over whether respondent was entitled to a jury trial with respect to adjudication. The court heard testimony by respondent's former attorney regarding the various machinations concerning the request for a jury trial and the subsequent withdrawal of the request. The parties then presented arguments on the issue, and the trial court ruled that the request for a jury trial had been effectively withdrawn as based on a writing—an e-mail sent to the court by respondent's previous attorney—and a totality of the circumstances. The trial court announced that it would proceed with a bench trial on adjudication. Respondent's counsel then asked for a five-minute break to confer with respondent, which the trial court allowed. Following the brief recess, respondent indicated that he wished to admit to an amended petition that would allow the court to take jurisdiction over the children and terminate his parental rights. Respondent signed a document entitled "amended petition," which stated as follows:
[Respondent] respectfully acknowledges that he is unable to provide a safe, stable, non-neglectful home environment for his children, though financially able to do so, and will be unable to do so within a reasonable amount of time. He has come to the difficult and loving conclusion, after carefully considering all actions taken and exhibits entered, including those of today, that the best interests of his children . . . would be served by the termination of his parental rights. Therefore, he does not contest the termination of his parental rights.[]
With all in agreement, the trial court went forward with the amended petition and not the DHHS's original petition.
The trial court then placed respondent under oath. The court advised respondent that he was waiving the right to a trial by judge, the right to require the prosecutor to prove the allegations by clear and convincing evidence, the right to question the prosecution's witnesses under oath, and the right to have the court compel witnesses to appear and testify on behalf of respondent. Respondent indicated that he understood and had no questions regarding those rights. Respondent then testified in a manner consistent with the amended petition. Respondent stated that he understood that he was giving up all of his parental rights and that he was giving up those rights voluntarily. He affirmed that he had not been threatened and that he was not promised anything in return for his agreement to have his parental rights terminated. Respondent also indicated that he understood that he would no longer have a say in the children's lives. Further, respondent noted that he had discussed everything with counsel, and respondent expressly acknowledged that it would be in the children's best interests to terminate his parental rights.
The trial court found that respondent had freely, voluntarily, and understandingly agreed to the termination of his parental rights. The court also found that there were sufficient grounds for termination of respondent's parental rights and that termination was in the best interests of the children. Respondent signed an advice of rights form, which set forth respondent's rights to appeal the termination and to have appointed counsel to perfect an appeal. And respondent made a request for a court-appointed attorney for purposes of an appeal.
On appeal, respondent contends that he did not waive his right to a jury trial and that when he was denied his right to a jury trial, he was forced to sign the amended petition and agree to the termination of his parental rights. Respondent also maintains that in the trial court's haste to terminate his parental rights it "failed to completely advise him of the rights he was giving up and of his appellate rights" under MCR 3.971(B). Respondent argues that he is entitled to challenge the assumption of jurisdiction under MCR 3.971(C) because of the trial court's failure to comply with MCR 3.971(B). Finally, respondent asserts that there was a lack of evidence showing that termination of respondent's parental rights was in the children's best interests.
First, there is absolutely nothing in the record supporting respondent's assertion that he was forced to sign the amended petition and agree to the termination of his parental rights. Indeed, the record establishes just the opposite. The trial court was ready and able to proceed with an adjudication bench trial. Second, respondent is not an aggrieved party and has waived his arguments on appeal.
This Court "has jurisdiction of an appeal of right filed by an aggrieved party[.]" MCR 7.203(A). Respondent is simply not an aggrieved party; the trial court did just as he requested, i.e., it terminated his parental rights. See Maxwell v Dep't of Environmental Quality, 264 Mich App 567, 571; 692 NW2d 68 (2004) (an aggrieved party is one whose legal rights are invaded by an act complained of); Dep't of Consumer & Indus Servs v Shah, 236 Mich App 381, 385; 600 NW2d 406 (1999) (a party is not aggrieved if the order being appealed was in the party's favor); Reddam v Consumer Mtg Corp, 182 Mich App 754, 757; 452 NW2d 908 (1990) (this Court only has jurisdiction over appeals filed by an aggrieved party, and the plaintiff, having accepted a mediation award, cannot be deemed an aggrieved party), overruled in part on other grounds CAM Constr v Lake Edgewood Condo Ass'n, 465 Mich 549; 640 NW2d 256 (2002). Respondent's agreement to have his parental rights terminated is akin to a consent judgment. And "one may not appeal from a consent judgment, order or decree[.]" Dybata v Kistler, 140 Mich App 65, 68; 362 NW2d 891 (1985), citing Dora v Lesinski, 351 Mich 579, 582; 88 NW2d 592 (1958) ("It is elementary that one cannot appeal from a consent judgment, order or decree.").
Assuming that respondent is an "aggrieved" party such that we have jurisdiction over his appeal, we again note he has waived challenges to the termination of his parental rights. See People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (waiver is the intentional abandonment or relinquishment of a known right); In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011) (the respondent's appellate argument challenging the statutory grounds for termination directly contradicted the respondent's plea, and she "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"). Respondent deemed it proper to terminate his parental rights, agreed to the termination of his parental rights, and expressly stated that it was in the children's best interests to terminate his parental rights. These declarations constitute the epitome of waiver.
The trial court did not strictly comply with MCR 3.971(B) because it couched its discussion of waived rights in terms of the disposition, i.e., the termination of parental rights, and not adjudication. For example, the trial court informed respondent that he was waiving his right to have the DHHS prove the grounds for termination by clear and convincing evidence, but, as to adjudication, the court was also supposed to have advised respondent that he was waiving the right to have the DHHS prove the allegations in its petition by a preponderance of the evidence. MCR 3.971(B)(3)(b). We do note, however, that respondent was informed that he was waiving the right to question the prosecution's witnesses under oath, which would satisfy MCR 3.971(B)(3)(d) (waiving right to "cross-examine witnesses"). Respondent was also advised that he was waiving the right to have the trial court compel witnesses to appear on respondent's behalf, which would satisfy MCR 3.971(B)(3)(e) (waiving right to "have the court subpoena any witnesses the respondent believes could give testimony in the respondent's favor"). The trial court did not advise respondent of the consequences of his plea, including that it could later be used against him in a termination proceeding, MCR 3.971(B)(4), but that became a moot point in light of the stipulated termination. It is true that the trial court did not advise respondent of his appellate rights related to adjudication, MCR 3.971(B)(6) through (8), but he was informed in writing of his appellate rights in connection with the termination, and he has pursued this appeal by right with appointed counsel, challenging, in part, the exercise of jurisdiction. Under the foregoing circumstances, which are remarkably distinguishable from In re Ferranti given the waiver and agreed-to termination, even if we applied plain-error review, we could not conclude that the errors seriously affected the fairness, integrity, or public reputation of the proceedings. See In re Pederson, ___ Mich App ___, ___; ___ NW2d ___ (2020); slip op at 10-13. On a final note, assuming substantive review of the best-interests issue applied, we conclude there was no clear error in finding that terminating the parental rights of respondent—the person who murdered the children's mother—was in the best interests of the children. See In re Hudson, 294 Mich App at 264.
With respect to the jury-trial argument and our rejection of the argument due to waiver and an absence of an aggrieved party, we note that respondent made no attempt to make his decision to allow for the termination of his parental rights conditional on his ability to pursue an appeal of the trial court's ruling on the jury-trial issue, assuming that such a procedure is even permissible.
We affirm.
/s/ Jonathan Tukel
/s/ Jane E. Markey
/s/ Michael F. Gadola