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In re Walker

STATE OF MICHIGAN COURT OF APPEALS
Mar 24, 2020
No. 350434 (Mich. Ct. App. Mar. 24, 2020)

Opinion

No. 350434

03-24-2020

In re L. WALKER, Minor.


If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court Family Division
LC No. 19-136195-NA Before: BOONSTRA, P.J., and RIORDAN and REDFORD, JJ. PER CURIAM.

Respondent appeals as of right the trial court's order of disposition taking jurisdiction over her child, LW, based on respondent's no-contest plea. We affirm.

I. BACKGROUND

The Department of Health and Human Services petitioned to take jurisdiction over LW because respondent failed to provide him proper care. The McLaren Hospital staff found LW without proper supervision when respondent presented at the emergency room during a manic psychiatric episode and the hospital admitted her. Respondent refused petitioner's request for the identification of someone who could be called to pick up LW to provide him care. The court referee held a preliminary hearing at which she appointed counsel for respondent and contacted respondent at the hospital. The referee informed respondent of her rights and read the allegations stated in the petition. Respondent stated that the allegations were false. The referee set the case for a contested pretrial/plea hearing regarding jurisdiction.

At the contested pretrial hearing, respondent attended with assistance of counsel who advised the trial court that respondent intended to plead no contest to the allegations in the petition. The trial court placed respondent under oath and inquired whether she had opportunity to consult with her counsel and understood the nature of the proceedings. She responded affirmatively to both. The trial court explained the consequences of her pleading no contest and her rights. Respondent affirmed that she understood all of her rights and that she would be giving up her trial rights. When asked how she pleaded, respondent stated, "No contest." When asked the factual basis for the plea, respondent's attorney replied, "In re guilty plea cases." He indicated that the trial court should consider "paragraphs (4) and (5) [of the petition] in their entirety." The trial court stated that it was satisfied that ¶ ¶ (4) and (5) provided a sufficient basis to take jurisdiction and the trial court accepted respondent's no contest plea and took jurisdiction over LW. The trial court inquired whether respondent pleaded no contest of her own volition without threat or force and that her plea constituted her decision after consulting with her counsel. The trial court found that respondent made a knowing and voluntary plea.

On appeal, respondent argues that the trial court erred by accepting respondent's no-contest plea because it failed to properly establish an independent factual basis for the allegations in the petition. Respondent further argues that the trial court erred because it did not state why the no-contest plea was appropriate. We disagree.

II. STANDARD OF REVIEW

"In general, issues that are raised, addressed, and decided by the trial court are preserved for appeal." In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). Respondent did not object to the taking of the plea or the plea procedure in the lower court, including determination whether the plea was voluntarily or accurately given or established by a factual basis. Therefore, respondent failed to preserve this issue for appeal. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). We review unpreserved claims for plain error affecting substantial rights. Id. "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011) (quotation marks and citation omitted). An error affects substantial rights if it caused prejudice, that is, if it affected the outcome of the proceeding. In re Utrera, 281 Mich App at 9. "When plain error has occurred, [r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. (quotation marks and citations omitted).

III. ANALYSIS

Respondent argues that the trial court failed to establish a factual basis to support the petition's allegations before accepting her no-contest plea because no testimony or evidence supporting the allegations at the adjudication were presented. We disagree.

A respondent may plead no contest to the original allegations in a petition to terminate parental rights. MCR 3.971(A). The trial court must advise the respondent of her rights listed under MCR 3.971(B) before accepting a plea.

Respondent does not argue that the trial court failed to fully advise her of her rights. She does not claim that she unknowingly or involuntarily entered her plea. Instead, she argues that the trial court failed to ensure that her plea was accurate as required by MCR 3.971(D)(2) which provides:

(2) 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.

Respondent relies on In re SLH, 277 Mich App 662; 747 NW2d 547 (2008), to argue that an insufficient factual basis existed for her plea of no contest to the allegations in the petition. In In re SLH, the respondent father faced criminal charges for sexually assaulting his two daughters. Id. at 664-665. The nonrespondent mother agreed to plead no contest to the allegations in the petition against the respondent father. Id. at 665. This Court held that the trial court could not accept a plea from the nonrespondent mother because the allegations in the petition were not made against her but only against the respondent father. This Court noted that only a respondent may enter a plea. Id. at 670.

Respondent argues that In re SLH stands for the proposition that the nonrespondent mother's response to the allegations in the petition, "yes, I do," was insufficient to establish a factual basis for a no-contest plea. In re SLH, however, was not decided on the adequacy of the factual basis for the mother's plea. Rather, because the allegations in the petition were not directed at the mother at all and she was not the respondent in the case, she could not enter a plea. Respondent's reliance on In re SLH, therefore, is misplaced.

In this case, the record reflects that the trial court accepted respondent's plea of no contest to the facts alleged in the petition, specifically ¶ ¶ (4) and (5) which specified that respondent failed to provide proper care and custody of LW when she went to the hospital while suffering from a serious mental health problem which required her admission. The trial court specifically asked respondent's counsel what factual allegations supported respondent's no-contest plea and after he responded, "In re guilty plea cases" he specifically replied that the allegations in ¶ ¶ (4) and (5) in their entirety served as the factual basis for her plea. The trial court expressed its satisfaction that ¶ ¶ (4) and (5) provided a sufficient factual basis for the court to take jurisdiction. Respondent counsel's affirmative response indicated that the allegations could be accepted as true and used to establish the factual basis without proof by independent evidence. "A party who expressly agrees with an issue in the trial court cannot then take a contrary position on appeal." Grant v AAA Michigan/Wisconsin, Inc (On Remand), 272 Mich App 142, 148; 724 NW2d 498 (2006) (citation omitted). Accordingly, respondent may not now challenge her plea because her counsel expressly agreed that the trial court could consider ¶ ¶ (4) and (5) in their entirety as the factual predicate for her plea.

Moreover, the trial court asked how respondent pleaded to "paragraphs (4) and (5)," to which she responded, "No contest." The trial court inquired whether respondent understood the allegations that had been read in their entirety to respondent at a pretrial hearing, whether she understood the nature of the proceedings, after advising her of her rights whether she understood them, and if she understood the consequences of making a no-contest plea. Respondent replied affirmatively each time. The trial court asked respondent if she had sufficient time to discuss them with her counsel to which she replied affirmatively. The trial court asked respondent if she understood that the acceptance of the plea could be used as evidence in a proceeding seeking to terminate her parental rights and respondent replied, "Yes." The record reflects that the trial court appropriately satisfied itself that respondent knowingly, understandingly, and voluntarily made her no-contest plea after establishing that one or more of the statutory grounds alleged in the petition were true based on respondent's counsel's representations to the trial court that respondent wished to plead to the allegations contained in the petition. The trial court informed respondent of her rights and that her plea would be treated as if she admitted at least one of the allegations in the petition and that when she pleaded no contest she gave up her rights to contest the allegations. The record reflects that the trial court complied with the requirements of MCR 3.971(B)(2) through (4).

The trial court may use the allegations in the petition, as offered by respondent's counsel, for the factual basis, as "some other means" to support her no-contest plea. MCR 3.971(D)(2). When directed to establish a factual basis, respondent's attorney asked the court to consider the factual allegations in the petition. The attorney's agreement to use the allegations was "some other means" to support that the allegations were true. Because the trial court found a factual basis by "some other means," through the agreement to use allegations in the petition, it was unnecessary to question respondent further about the allegations in order to form a factual basis for the plea. MCR 3.971(D)(2).

Respondent also argues that the trial court failed to state on the record why the plea was appropriate as required under MCR 3.971(D)(2). We disagree.

The trial court asked respondent, "Your lawyer has just told me that your intention is to plead no contest to jurisdiction; is that your understanding?" Respondent replied, "Yes." The trial court stated on the record that it was satisfied that the petition's ¶ ¶ (4) and (5) provided a sufficient factual basis for the court to take jurisdiction. The trial court specifically found that respondent's actions or inactions could have posed, either intentionally or unintentionally, a risk of harm to LW, and stated: "So the court is satisfied that is a sufficient factual basis for a no contest plea." The record, therefore establishes that the trial court appropriately stated why it considered her plea appropriate.

Respondent also argues that her counsel's response, "In re guilty plea cases," failed to establish the appropriateness of her plea because that merely referenced In re Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975). That case concerned consolidation of numerous criminal appeals regarding compliance with requirements of the court rule applicable to guilty and nolo contendere pleas. Id. Our Supreme Court held that noncompliance with the rule may, but does not necessarily require, reversal. Id. Particularly, in analyzing cases regarding circumstances where a defendant may not need to be directly questioned to form a factual basis for a nolo contendere plea, the Court held:

Among the justifying circumstances that have been suggested are (1) a reluctance on defendant's part to relate the details of a particularly sordid crime (E.g., sexual assault on a child); (2) the defendant's recollection of the facts may be unclear because he was intoxicated (People v Stoner, 23 Mich App 598, 608; 179 NW2d 217 (1970)) or he committed so many crimes of a like nature that he cannot differentiate one from another; and (3) because he wishes to minimize other repercussions, E.g., civil litigation. This enumeration is not meant to be exhaustive. [Id. at 134.]

Respondent argues that her counsel's case reference failed to establish a factual basis because the trial court did not make any findings regarding any of the "justifying circumstances." However, the trial court did not rely on her counsel's reference to the case for its finding her plea appropriate. The trial court advised her that her "lawyer has just told me that your intention is to plead no contest to jurisdiction; is that your understanding?" Respondent replied affirmatively. Further, the trial court accepted her no-contest plea because, as explained previously, ¶ ¶ (4) and (5) of the petition provided a sufficient factual basis for it to take jurisdiction. Respondent's counsel indicated that the trial court could consider those allegations in their entirety as the factual basis supporting jurisdiction. Accordingly, the trial court did not err by taking jurisdiction in this case.

Affirmed.

/s/ Mark T. Boonstra

/s/ Michael J. Riordan

/s/ James Robert Redford


Summaries of

In re Walker

STATE OF MICHIGAN COURT OF APPEALS
Mar 24, 2020
No. 350434 (Mich. Ct. App. Mar. 24, 2020)
Case details for

In re Walker

Case Details

Full title:In re L. WALKER, Minor.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Mar 24, 2020

Citations

No. 350434 (Mich. Ct. App. Mar. 24, 2020)