Opinion
No. 348425
11-14-2019
In re SPANGLER, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Van Buren Circuit Court Family Division
LC No. 17-018829-NA Before: MURRAY, C.J., and MARKEY and BECKERING, JJ. PER CURIAM.
Respondent-father appeals by right the family court's order terminating his parental rights to the minor children under MCL 712A.19b(3)(c)(i) (failure to rectify conditions of adjudication) and (h) (parent incarcerated for period that will deprive child of normal home for more than two years). Respondent solely challenges the family court's decision to take jurisdiction during the adjudicative phase of the proceedings. In assuming jurisdiction, the court relied on respondent's plea of admission to the allegations in the removal petition. We affirm.
The minor children's mother voluntarily relinquished her parental rights to the children.
In August 2017, petitioner requested the family court to exercise jurisdiction over the minor children and to remove them from their mother's care for failure to provide proper care and custody. The petition alleged that the children's mother used methamphetamine, had unstable housing, and surrounded herself and the children with friends and family members who used methamphetamine and other drugs. At the time of the petition and for two years preceding its filing, respondent was serving a prison sentence on a conviction for maintaining and operating a methamphetamine laboratory. The allegations in the petition pertaining to respondent were simply that he was imprisoned for the methamphetamine-related conviction and that his earliest release date is August 1, 2021. With respect to adjudication, on September 8, 2017, respondent entered a plea of admission to the allegations in the petition. The family court found that a factual basis for the plea was established and that there existed statutory grounds to take jurisdiction under the language in MCL 712A.2(b)(2). In December 2018, petitioner submitted a supplemental petition to terminate respondent's parental rights, which the family court authorized. A termination hearing was conducted on March 13, 2019, and the family court found that MCL 712A.19b(3)(c)(i) and (h) had been established by clear and convincing evidence and that termination of respondent's parental rights was in the best interests of the children, MCL 712A.19b(5). Respondent appeals by right.
Respondent's maximum discharge date is February 1, 2035.
On appeal, respondent does not challenge the family court's findings regarding the statutory grounds for termination and the children's best interests; consequently, those findings stand. See Denhof v Challa, 311 Mich App 499, 521; 876 NW2d 266 (2015) (an appellant is not entitled to relief on a matter if he or she fails to dispute the lower court's ruling with respect to that particular matter). Respondent solely argues that his admission to the allegations in the petition that he was currently in prison and has a release date of not earlier than August 2021 was insufficient for the family court to take and exercise jurisdiction. Respondent contends that because the children were not living with him in prison, which was effectively his home, it could not be said that he was providing them with an unfit place to live. Respondent maintains that if his admission to being imprisoned suffices to assume jurisdiction then every incarceration could be used to establish jurisdiction.
Petitioner, following an investigation, may petition a family court to take jurisdiction over a child. In re Ferranti, ___ Mich ___, ___; ___ NW2d ___ (2019); slip op at 8, citing MCR 3.961(A). The petition must contain essential facts that, if proven, would permit the family court to assume and exercise jurisdiction over the child. MCR 3.961(B)(3); MCL 712A.2(b); In re Ferranti, ___ Mich at ___; slip op at 8. If a petition is authorized, the adjudication phase of the proceedings takes place, and the "question at adjudication is whether the family 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, ___ Mich at ___; slip op at 9.
A family 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, ___ Mich at ___; slip op at 9. "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(C)(2), now found in MCR 3.971(D)(2), effective June 12, 2019, 503 Mich ___ (2019). The statutory ground relied on by the family court in the instant case was MCL 712A.2(b)(2), which provides that a family court has jurisdiction "concerning a juvenile . . . [w]hose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, . . . is an unfit place for the juvenile to live in."
We first note that until the Michigan Supreme Court decided In re Ferranti, a jurisdictional challenge such as the one posed by respondent would have been dismissed on appeal as an impermissible collateral attack on the adjudication determination, considering that respondent did not immediately appeal the jurisdictional ruling and that termination was not sought at the initial dispositional hearing. In re Ferranti, ___ Mich at ___; slip op at 1-2. Our Supreme Court explained:
This Court's decision in In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993), generally bars a parent from raising errors from the adjudicative phase of a child protective proceeding in the parent's appeal from an order terminating his or her parental rights. The Hatcher rule rests on the legal fiction that a child protective proceeding is two separate actions: the adjudication and the disposition. With that procedural (mis)understanding, we held that a posttermination appeal of a defect in the adjudicative phase is prohibited because it is a collateral attack. This foundational assumption was wrong; Hatcher was wrongly decided, and we overrule it. [In re Ferranti, ___ Mich at ___; slip op at 1.]
Now, under similar procedural circumstances, the proper approach is not to dismiss the appeal but to examine the appellate challenge under the plain-error test. Id. at ___; slip op at 22 (apparently agreeing with the parties, where the respondents had entered pleas of admission, "that adjudication errors raised after the trial court has terminated parental rights are reviewed for plain error"). Under plain-error review, 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." Id. Also, it must be shown that the error seriously affected the integrity, fairness, or public reputation of the child protective proceedings. Id.
We hold that the family court did not commit error, plain or otherwise, in assuming and exercising jurisdiction over the minor children and respondent. Effectively, the minor children's home environment, by reason of respondent's "criminality" and "neglect," was an unfit place for the children to live. MCL 712A.2(b)(2). Respondent's criminality—maintaining and operating a methamphetamine laboratory—resulted in his imprisonment such that he could not be present in the children's home environment to provide for their care and custody. Given the circumstances regarding the inability of the children's mother to provide proper care and custody and removal of the children from her care, the absence of respondent from the children's home environment because of his criminality left the children in an unfit environment, as there was no parent left to attend to the children's care and custody. Respondent's incarceration, in conjunction with the children's mother no longer being able to provide care and custody for the children, created a home environment that would have resulted in neglect of the children but for the establishment of the wardship. A parent's imprisonment that deprives a minor child of a home environment with an adult caregiver present can certainly give rise to a family court taking and exercising jurisdiction over the child. We understand that this may not be the typical situation involving criminality that renders a child's home environment an unfit place to live, but the circumstances nonetheless support application of MCL 712A.2(b)(2).
An important aspect of our analysis is that there is nothing in the record which indicated that a designated or appointed relative or other adult would be providing the children with care and custody to specifically cover respondent's absence while imprisoned, or that respondent even attempted to make such arrangements. We find guidance from this Court's decision in In re Curry, 113 Mich App 821; 318 NW2d 567 (1982). The panel addressed the question of jurisdiction where the respondent parents were both incarcerated, but the parents had placed the minor children in the custody of relatives, the maternal and paternal grandmothers, and there was no showing that the children's living environment with their grandmothers was unfit or unwholesome. Id. at 824. This Court held:
[W]e are persuaded that the criminal status alone of these respondents is not a sufficient basis for the . . . court's assumption of jurisdiction. Some showing of unfitness of the custodial environment was necessary and no such showing was made in the instant case. The state should not inject itself into the lives of its citizens except when specifically authorized by law and when necessary to prevent abuse and neglect. [Id. at 830.]The Court agreed with the propositions "that parents are free, without state interference, to place their children in a custodial environment of their choosing as long as it is fit" and that "parents, convicted of crimes, have the same right." Id. (citations omitted).
Although discussed in the context of examining the statutory grounds for termination, our Supreme Court in In re Mason, 486 Mich 142, 146; 782 NW2d 747 (2010), voiced similar sentiments, ruling:
The court effectively terminated respondent's parental rights merely because he was incarcerated during the action without considering the children's placement with relatives or properly evaluating whether placement with respondent could be appropriate for the children in the future. Incarceration alone is not a sufficient reason for termination of parental rights.
Again, there is no evidence that respondent sought to place the children in a custodial environment with a relative or other adult during his incarceration, let alone a person who could provide a fit custodial environment. Accordingly, we hold that the trial court did not err in concluding that respondent's plea of admission to the allegations in the petition provided sufficient support for taking and exercising jurisdiction under MCL 712A.2(b)(2).
We affirm.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Jane M. Beckering