Opinion
No. 336276
06-27-2017
In re S. WINSTON, Minor.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 15-519906-NA Before: MARKEY, P.J., and METER and SHAPIRO, JJ. PER CURIAM.
Respondent mother appeals as of right an order terminating her parental rights to a minor child, SW, pursuant to MCL 712A.19b(3)(g), (i), and (j). We affirm.
Respondent first appears to be arguing that the trial court erred when it accepted her admissions to statutory grounds for termination, considering that she has an IQ of 71.
Respondent states that "[i]t is unclear whether [respondent] fully understood the consequences of her statements" during the plea proceedings.
Generally, this Court will "review for clear error a trial court's factual findings as well as its ultimate determination that a statutory ground for termination of parental rights has been proved by clear and convincing evidence." In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). Respondent, however, did not object to the plea-related procedure in the lower court. Therefore, this issue is unpreserved. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). This Court reviews unpreserved claims for plain error affecting substantial rights. Id. at 8-9. An error affected substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings. Id. at 9; People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). "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 affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." In re Utrera, 281 Mich App at 9 (quotation marks and citations omitted).
First, respondent cites no authority for the proposition that a trial court may not accept admissions from a respondent who has an IQ of 71. Therefore, this claim has been abandoned. In re ASF, 311 Mich App 420, 440; 876 NW2d 253 (2015). Further, any argument relating to the voluntariness of respondent's plea lacks merit. Under MCR 3.971(A), a respondent may enter a plea of admission or no contest to allegations in a petition. MCR 3.971(B)(1) requires a trial court to advise a respondent "of the allegations in the petition" before it accepts a plea. Additionally, MCR 3.971(C) requires that a respondent's plea be both voluntary and accurate. Under MCR 3.971(C)(1), a trial court "shall not accept a plea of admission or of no contest without satisfying itself that the plea is knowingly, understandingly, and voluntarily made."
At the combination adjudication/termination hearing, not only was respondent accompanied by her attorney, she had an appointed guardian ad litem because of her documented mental deficiency. Moreover, the trial court advised respondent of her rights as required under MCR 3.971(B). Thereafter, the trial court indicated that it was satisfied that her plea was knowingly and voluntarily entered as required under MCR 3.971(C)(1). Respondent has not shown a plain error affecting her substantial rights as it relates to the voluntariness of her plea.
Respondent also appears to be arguing that the trial court erred when it accepted her plea because there was insufficient evidence to prove the statutory grounds under MCL 712A.19b(3)(g), (i), and (j) by clear and convincing evidence.
We first note that respondent pleaded to the existence of the statutory grounds for termination, and a "[r]espondent 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." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). With that said, when the trial court accepts a plea, it must still ensure that the plea is accurate. MCR 3.971(C)(2). Under MCR 3.971(c)(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.The trial court accepted respondent's plea of admission, and therefore, it was required to find "that one or more of the statutory grounds alleged in the petition are true." MCR 3.971(C)(2). The petition seeking permanent custody indicated that respondent had been non-compliant with a previous treatment plan and that her rights to three other children had been terminated. Moreover, the petition indicated that respondent was homeless and living in a temporary shelter. At the hearing, respondent admitted that she had prior terminations and that she had been living at a shelter and did not have suitable housing for SW. Under all the circumstances, the plea had adequate support in accordance with MCR 3.971(C)(2).
Even disregarding the issue of any formal "plea," there was, contrary to respondent's appellate argument, sufficient evidence to establish statutory grounds for termination. We note that "[o]nly one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights . . . ." In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011). MCL 712A.19b(3) states, in relevant part:
The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
* * *
(i) Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful.
The requirements under subsection (3)(i) are two-fold: (1) parental rights to one or more siblings must have been terminated due to serious and chronic neglect, and (2) prior attempts to rehabilitate the parent must have been unsuccessful. In re Gach, 315 Mich App 83, 94; 889 NW2d 707 (2016). Respondent testified that her rights to three other children were terminated and she did not have adequate housing—statements that were in line with the allegations in the petition. The record also contained the petition, orders, and transcripts pertaining to the termination of respondent's third child, DW. Importantly, those files proved that respondent received a treatment plan in that case, but she failed to complete that plan and her rights were terminated in June 2016. When SW was born, respondent was still without suitable housing, as she had been during the proceedings that led to her third termination. The evidence showed that respondent had prior terminations and past attempts at rehabilitation were unsuccessful. MCL 712A.19b(3)(i)
Respondent's chronic homelessness and her history of terminations also supported the grounds in MCL 712A.19b(3)(g) and (j).
Respondent, however, argues that the trial court erred because she has a low IQ and should have been afforded specialized services in accordance with In re Hicks, 315 Mich App 251, 271-272; 890 NW2d 696 (2016), aff'd in part and vacated in part ___ Mich ___; 893 NW2d 637 (2017). She claims that if she had received the proper services, her prior attempts at rehabilitation would not have failed. This argument is unavailing.
Generally, "[the] petitioner is required to make reasonable efforts to rectify the conditions that caused the child's removal by adopting a service plan." In re Fried, 266 Mich App 535, 542; 702 NW2d 192 (2005). However, the petitioner is not required to provide reunification services when permanent custody is requested at the initial disposition or when aggravated circumstances exist. In re Moss, 301 Mich App 76, 90-92; 836 NW2d 182 (2013). The petitioner "is not required to provide reunification services when termination of parental rights is the agency's goal." In re HRC, 286 Mich App 444, 463; 781 NW2d 105 (2009).
DHHS filed an original petition for permanent custody, and the trial court terminated respondent's rights at the initial disposition. Therefore, DHHS was not required to provide reunification services relating to SW. In re Moss, 301 Mich App at 90-92; In re HRC, 286 Mich App at 463. Respondent's argument also fails to the extent that she claims the trial court presiding over DW's case failed to provide specialized services to accommodate her disability. Respondent is essentially attempting to challenge the services she received in a prior termination case involving another child. If respondent believed she was not receiving reasonable accommodations during those proceedings, she should have raised the issue then—not on appeal in a case concerning the termination of her rights to another child. At any rate, and significantly, the trial court nevertheless noted that not only was respondent offered specialized services in the case involving DW, but respondent did not maintain compliance with those services.
The court noted that "the case service plan was not cookie-cutter. In fact, it was designed to address mom's specific needs." During the case involving DW, the court took note of respondent's IQ of 71 but also noted that a therapist and psychologist had indicated that respondent had the capacity to parent DW. --------
Respondent lastly argues that the trial court clearly erred when it determined that termination of respondent's parental rights was in SW's best interests. We disagree.
This Court reviews for clear error a trial court's decision regarding whether termination is in the child's best interests. In re JK, 468 Mich 202, 209; 661 NW2d 216 (2003). Whether termination of parental rights is in the child's best interests must be proven by a preponderance of the evidence. In re Moss, 301 Mich App at 90.
Once a statutory ground has been established, the trial court must find that termination is in the child's best interests before it can terminate parental rights. MCL 712A.19b(5). In considering whether termination of parental rights is in the best interests of the child, "the court should consider a wide variety of factors that may include the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, and the advantages of a foster home over the parent's home." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014) (quotation marks and citations omitted). Additionally, the trial court may consider "the parent's compliance with his or her case service plan, the parent's visitation history with the child, the children's well-being while in care, and the possibility of adoption." Id. at 714. "Other considerations include the length of time the child was in care" and "the likelihood that 'the child could be returned to her parents' home within the foreseeable future . . . ." In re Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015) (quotation marks and citation omitted).
Respondent argues that the evidence from the best-interests hearing demonstrated a number of reasons why termination was not in SW's best interests. She claims that she had a bond with the child and had a good visitation history.
The trial court explained that SW was in need of safety and stability, as was stated in the evaluation report by the Clinic for Child Study. At the time of the hearing, respondent admitted that she did not have housing. While respondent said she would be able complete the paperwork required to obtain Section 8 housing, she had lacked adequate housing well before SW was born and was homeless throughout the proceedings, and there was no guarantee regarding whether or when she would have adequate housing. Additionally, the evaluation report by the Clinic for Child Study indicated that there was not actually a strong bond between respondent and SW. Further, the evaluation report indicated that the problems that had led to the termination of respondent's other children "appeared to be reoccurring . . . ." According to the evaluation report, "[s]howing only sporadic and intermittent participation in services, therefore remaining a poor prospect for adequate parenting without appropriate housing and absent insight into the majority of her difficulties, [respondent] appears challenged in learning from previous mistakes." Given the factors that weighed in favor of termination, the trial court did not clearly err when it determined that termination of respondent's parental rights was in SW's best interests.
Affirmed.
/s/ Jane E. Markey
/s/ Patrick M. Meter
/s/ Douglas B. Shapiro