Opinion
No. 340036
04-24-2018
In re COSS, Minor.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 13-512125-NA Before: BORRELLO, P.J., and SHAPIRO and TUKEL, JJ. PER CURIAM.
Respondent-mother appeals as of right the order terminating her parental rights to her minor child, NAC, under MCL 712A.19b(3)(a)(ii) (desertion), (g) (failure to provide proper care and custody), (j) (reasonable likelihood that child will be harmed if returned to parent), and (k)(i) (abused child or sibling and abuse included abandonment). The parental rights of respondent-father were also terminated in the same order, but he is not a party to this appeal. For the reasons set forth in this opinion, we affirm.
Our discussion of the facts in this case will include facts involving father only as they are pertinent to the issues on appeal involving mother.
I. BACKGROUND
The instant case arises out of a long history of neglect proceedings involving mother and NAC. On March 28, 2013, a petition for removal was filed regarding NAC and naming both mother and father as respondents. The petition alleged that mother had left NAC in the care and custody of his paternal great grandmother, that mother had not maintained regular visitation with NAC or provided financial support, that mother had been referred for mental health and substance abuse services but had been terminated from services for lack of participation, and that mother had physically neglected NAC. Mother had a history of substance abuse involving heroin and Xanax, and she was hospitalized due to a heroin overdose in October 2012. She also had a prior history with Child Protective Services (CPS) involving NAC, including substantiated allegations of physical neglect and failure to protect. Both respondents had a criminal history, and mother had been diagnosed with bipolar disorder, generalized anxiety disorder, and polysubstance dependence. At the preliminary hearing, the petition was authorized, and it was noted that NAC had been placed with his paternal great grandmother pursuant to a safety plan.
At the pretrial hearing on April 15, 2013, mother admitted that she left NAC in the care of his paternal great grandmother in November or December of 2012 because she was unable to care for NAC at the time. Mother also indicated that she was admitted to Kingswood Hospital in October 2012 for a mental breakdown, that she had a history of drug abuse that included a problem with heroin, and that she was currently on probation for assault and battery. Mother further admitted that she was diagnosed with bipolar disorder and generalized anxiety, but she did not take the medications she was prescribed. The referee accepted mother's admissions and found that jurisdiction over NAC was proper.
The proceedings continued over the course of the next approximately 15 months. During that time, NAC was returned to the care of mother and father under the supervision of the Department of Health and Human Services (DHHS) and with in-home services following a dispositional review and permanency planning hearing on March 17, 2014. Subsequently, following a dispositional review and permanency planning hearing on July 10, 2014, NAC was returned to the custody of mother and father, and the court's jurisdiction over NAC was terminated.
Almost three years later, on May 3, 2017, a petition for permanent custody was filed with respect to NAC, naming mother and father as respondents. This petition noted the previous case from 2013 and alleged that mother and father allowed NAC's paternal great grandmother to take power of attorney over NAC and care for him shortly after NAC was returned to mother and father in 2014 because mother and father were not stable. The petition further alleged that the paternal great grandmother was currently in a nursing home and unable to care for NAC, that CPS had received a referral alleging that NAC was without proper supervision on approximately April 11, 2017, that father tested positive for heroin and hydromorphine on April 13, 2017, that mother tested positive for cocaine on April 24, 2017, that mother had admitted to recently using heroin, that mother was not complying with her treatment for her bipolar and schizophrenia, that mother and father did not have stable housing, that NAC had been seen at school with filthy clothing and appearing unbathed, that nine-year-old NAC had reported that he regularly walks over a mile to the library after school, that father had instructed NAC to walk to the library after finishing school at 3:00 p.m. so that father could pick NAC up at 5:00 p.m., that mother had admitted that she did not regularly visit NAC or provide him with financial support, and that mother had failed to provide proper supervision for NAC. The petition requested that the parental rights of mother and father to NAC be terminated.
A preliminary hearing was held on May 3, 2017. Nesrine Beydoun was the CPS specialist assigned to this case, and she drafted the permanent custody petition. Neither mother nor father appeared at the hearing. According to Beydoun, she contacted mother and spoke with her to notify her of the hearing. Beydoun also told mother about the petition. Beydoun testified that mother replied that she could not attend the hearing because she had a dentist appointment and did not have transportation to the hearing. Beydoun did not know where father was living, and did not have his phone number.
Beydoun further testified that it was contrary to NAC's welfare to be in the care of mother or father. She noted that NAC was removed from their care in 2013 for drug abuse, was subsequently returned home, and then lived with his paternal great grandmother when the wardship was dismissed. His paternal great grandmother had entered a nursing home and could no longer care for NAC, both parents had unaddressed substance abuse issues, and neither parent had stable housing. Beydoun further explained that mother had untreated mental health issues. NAC was currently placed with his paternal uncle, who was willing to adopt NAC.
Beydoun testified that she filed a permanent custody petition against respondents because NAC was a ward in 2013 due to substance abuse, untreated mental health issues, and lack of housing, and the same issues still existed. Beydoun requested intensive trauma-based therapy for NAC because he was nine years old and had been wetting himself every day at school since his paternal great grandmother was hospitalized. The referee authorized the petition, placed NAC with DHHS for care and supervision, and ordered that no efforts toward reunification be made. An order was entered noting that NAC had been placed with his paternal uncle, who was willing to adopt.
On May 17, 2017, a pretrial hearing was held. Neither mother nor father appeared for this hearing. Beydoun testified that NAC remained placed with his paternal uncle and that this was a suitable placement. The referee noted that mother and father were not currently represented by counsel because they had not yet come forward, and the referee further indicated that counsel would be assigned if either respondent did eventually come forward.
The adjudication trial began on June 22, 2017, and was held before a referee. Both mother and father were present, and each was represented by an attorney designated "Emergency House Counsel." Mother and father each acknowledged service of the permanent custody petition, and the referee informed mother and father that they were entitled to representation by counsel at trial. The referee further informed mother and father, "It's too late to make a judge demand, so, you have me." As pertinent to mother, a certified copy of drug screens for mother was admitted as an exhibit. DHHS foster-care specialist Ginger Franklin testified that NAC was currently placed with his paternal uncle. According to Franklin, mother and father had attended two or three supervised visits since the removal, and they had been provided bus tickets due to issues with transportation. The trial was adjourned until August 22, 2017. The court entered an order noting that both respondents had appeared for the first time in the proceedings at the instant hearing and that they were each assigned court-appointed counsel. The order further indicated that NAC's placement with his paternal uncle would continue.
The continued trial and permanent custody hearing resumed on August 22, 2017. Mother was present and represented by the same attorney who represented her at the June 22, 2017 proceedings. Father was also represented by the same attorney, but father was not present. The referee took judicial notice of the file in the previous 2013 proceedings involving NAC, limited to legally admissible evidence.
Laura Gripp testified that she was NAC's fourth grade teacher during the 2016-2017 school year. According to Gripp, NAC lived with his paternal great grandmother when the school year started, but the paternal great grandmother contacted Gripp in January 2017 and indicated that she could no longer care for NAC. After this point, Gripp was unsure who was taking care of NAC, but her understanding was that he was in the care of "varying family members." Gripp testified that the paternal great grandmother was in hospice care. Additionally, beginning approximately in January 2017, Gripp started having concerns about NAC because he was coming to school unkempt and unclean. His clothes were soiled and stained, and his shoes were ripped and without laces. Gripp testified that NAC also had a rash on his face that worsened over time and that "nobody was really paying attention to it." On multiple occasions, Gripp helped NAC wash his face and neck with a wet cloth.
According to Gripp, she would see NAC walking toward "the local bar" after school. She also saw him walking to the public library after school on more than one occasion, which entailed a walk of approximately 2.5 miles and required crossing a major road. Gripp was unable to contact mother and father during this time. Additionally, NAC started wetting his pants at school. She would give him clothes that were kept at school for such situations, and NAC would return to school wearing the same clothes the next day. He would wear the same clothes for an entire week. Gripp further testified that NAC would cry a lot during school, knew that his paternal great grandmother was sick, and worried about who was going to take care of him or pick him up after school. Due to her concerns, Gripp took NAC to the school social worker and contacted CPS at some point.
CPS specialist Beydoun testified that she received a complaint about NAC on April 11, 2017. Beydoun met NAC at school. NAC could not recall what he had eaten for dinner the night before, and Beydoun noticed that NAC looked dirty and had dirt under his fingernails. Then NAC indicated that he had not had anything to eat for dinner the previous night. According to Beydoun, NAC had been living with his paternal great grandmother under a power of attorney. The paternal great grandmother's physical health had begun to decline in January 2017. Although NAC continued to live with her until April, his care had deteriorated as a result. The paternal great grandmother entered a nursing home in April 2017, approximately two weeks before CPS was called about NAC. Beydoun testified that at the time of her investigation in April 2017, nobody was living with NAC because the paternal great grandmother was in the hospital and unconscious. Beydoun could not get in touch with anyone who could give her further answers about who was currently living with NAC. NAC had told Beydoun that father sometimes came to check on him. Beydoun eventually spoke to NAC's paternal uncle, who indicated that he had recently been staying with NAC at the paternal great grandmother's home. Beydoun testified that during the course of her investigation, no other family member was able to tell her if anyone was actually living in the home with NAC during this time, and it appeared to her that nine-year-old NAC was taking care of himself. The paternal great grandmother died in May 2017. When Beydoun asked NAC about his relationship with mother, he did not give many answers but said that he still had a Christmas present saved for her. Beydoun testified that NAC seemed to care about mother.
Beydoun testified that she eventually made contact with father, who agreed to pick NAC up from school on April 13, 2017, and meet with Beydoun. But father tried to cancel the appointment on the morning of April 13, and Beydoun refused. Beydoun arrived at the home around 4:00 p.m., and father was running up and down the street "hysterically," saying that he lost NAC. Beydoun and her co-worker called the school and library, looked inside the house, and knocked on the neighbors' doors. Father told Beydoun that he went to the school but did not see NAC come out. Beydoun decided to have father drug tested at that point, and he agreed. Father tested positive for heroin. Father admitted that he had marijuana, but he did not admit to heroin use. According to Beydoun, father later said that he had called the school that day and left a message for NAC to meet him at the library at 5:00 p.m. Beydoun testified that the library was over a mile from the school. NAC subsequently arrived home around 5:00 p.m. He indicated that he had been playing with friends at the park, unsupervised, as he usually did. Beydoun testified that she learned that father "stays at various houses in Detroit with friends" and that father never gave her an address or telephone number.
Beydoun testified that she met with mother near the end of April 2017, although she had spoken with mother by telephone several times previously. Mother was not living in the same area as the paternal great grandmother's home. Mother was living with her mother and looking for her own housing. According to Beydoun, mother told her that NAC had been in the paternal great grandmother's care under a power of attorney since he was removed in 2013. NAC had been returned to mother's care in 2014, but a power of attorney was nonetheless given to the paternal great grandmother at some point. Beydoun further testified that mother was aware that the paternal great grandmother had become sick and that nobody was caring for NAC while the paternal great grandmother was ill. However, when Beydoun asked mother what steps she had taken to care for NAC after the paternal great grandmother became ill, mother did not indicate that she had taken any such steps. Instead, mother responded that she was "trying to get her life together and that she was suppose[d] to be getting housing." Beydoun also testified that mother indicated that she wanted to plan for NAC and was looking for housing so she could get him back. Mother admitted that she had used heroin recently, and she tested positive for cocaine in an April 24, 2017 drug test. Mother was not involved in any substance abuse treatment at the time. Mother also admitted to Beydoun that she was bipolar and schizophrenic but was not receiving treatment.
Beydoun testified that neither respondent regularly visited NAC or provided financial support for him. Both respondents were unemployed, and neither had stable housing. NAC was currently placed with his paternal uncle, who was willing to adopt NAC. NAC and his paternal uncle were well bonded. Beydoun recommended termination of both respondents' parental rights.
Beydoun further testified that the same underlying issues—substance abuse and mental health—had been addressed with both mother and father during the 2013 child-protective proceedings and that both parents received services at that time aimed at these issues. The treatment plan was completed at that time, and NAC had been returned to his parents' care in 2014.
Mother testified that NAC was placed with his paternal great grandmother under a power of attorney in 2013 or 2014 when NAC was returned to her. Mother further testified that NAC went to live with his paternal great grandmother at that time, shortly after the previous child-protective proceedings were dismissed in 2014, because mother "didn't have stable living and all of that." Mother testified that she learned in 2017 from father that the paternal great grandmother was ill. According to mother, she was not in any position at that time to take care of NAC either.
Mother testified that she was hospitalized in July 2017, and after she was released, she went to a rehabilitation nursing home called Medilodge of Saint Clair due to using heroin and having "MRSA in [her] blood." Mother further testified that she was not using drugs anymore and that she would be negative if she took a drug screen on the day of the instant hearing. She was also taking medication for depression, anxiety, bipolar disorder, and hallucinations, and she indicated that she was no longer having hallucinations. Mother testified that she would be released from Medilodge on September 3, 2017, and would go to a drug abuse rehabilitation facility called Sacred Heart. After that, she would enter transitional housing. She was planning on working at a factory but could not work for a month after she was released from Medilodge because of her back. Her friend, John Chick, was going to help her pay rent for her transitional housing. Mother planned to visit NAC while she was in the rehabilitation facilities. Mother testified that she had a pending warrant for her arrest in Wyandotte because she was caught with heroin in January or February of 2017 in violation of probation. She planned to turn herself in after she took care of herself in rehabilitation. Mother admitted that she was not ready to have NAC in her care as of the date of the hearing, but she testified that she could have him in her care after "a little bit of time." Mother also admitted that she had not been in regular contact with NAC prior to the initiation of this case. Mother was drug tested on the day of the instant hearing and tested positive for opiates.
Methicillin-resistant Staphylococcus aureus.
Sonya Sumner testified that she was the discharge planner at the Medilodge of Saint Clair and was working with mother on transitioning out of the facility. Mother was at the facility to receive six weeks of treatment involving intravenous antibiotics for abscesses on her hand and back containing MRSA. Mother was also taking medication for pain, anxiety, bipolar disorder, and depression. She saw a psychologist at the facility for mental health and substance abuse issues. Mother set up her admission to Sacred Heart for substance abuse treatment, and Sacred Heart would assist her with transitional housing. NAC could not reside with mother at Medilodge or at Sacred Heart. Sumner transported mother to an NA meeting.
DHHS foster-care specialist Franklin testified that she was the foster care worker assigned to the case and that she supervised mother's visits with NAC. The visits went well, and NAC appeared bonded to mother. Mother did not appear under the influence of drugs during the visits. According to Franklin, NAC was "thriving in his placement." Franklin supported the petition for permanent custody.
Chick testified that he was mother's friend and offered to assist her financially so she could obtain housing. He would not live with her. Chick and respondent mother previously had a romantic relationship, but they were not currently in a sexual relationship.
The referee found that statutory grounds to assume jurisdiction due to an unfit home environment had been established by a preponderance of the evidence. The referee specifically found that NAC had been left with his paternal great grandmother, who was in deteriorating health, from 2014 until 2017 when her health declined; that NAC was without supervision once his paternal great grandmother was admitted into a nursing home; that mother and father did not provide NAC with supervision, care, or nurturing; and that mother and father did not financially support or visit the minor child regularly. The referee further found that NAC had been observed by Gripp to be dirty, hungry, and unkempt. Additionally the referee found that Gripp had seen NAC walking two miles to the library after school, had reported that NAC had demonstrated worry and anxiety about who would take care of him, and that the anxious child would urinate on himself.
Next, the referee found that statutory grounds to terminate mother's parental rights had been established by clear and convincing evidence. Specifically, the referee found that the effects on nine-year-old NAC's life really began when he was five years old when mother and father were provided with a parent-agency treatment plan for the same issues that continued to exist, namely substance abuse and untreated mental health issues. The referee further found that although NAC was returned to the care of mother and father in 2014, it was only a short period of time before they placed NAC with the paternal great grandmother under a power of attorney. NAC had stability during this time, but mother and father were not around when the paternal great grandmother's health deteriorated, or when NAC had a rash, or when NAC had to walk by himself to the library and home. The referee found that mother had admitted using heroin, had tested positive for cocaine, and had tested positive for opiates during a drug test administered at the court building on the day of trial. The referee also found that even though mother had a plan for treating her MRSA and for transitional housing, she had no plan for NAC. Additionally, the referee found that mother had known about the paternal great grandmother's illness but that mother responded to the question of how NAC would be cared for by stating that mother was trying to get herself together. The referee found that the same mental health, substance abuse, and unstable housing issues that existed during the 2013 proceedings continued to exist and that neither parent could currently provide NAC with a stable living environment. The referee concluded that termination of mother's parental rights was proper under MCL 712A.19b(3)(a)(ii), (g), (j), and (k)(i).
As previously noted, father's parental rights were also terminated, but he is not a party to this appeal.
Next, the referee found that a preponderance of the evidence established that termination was in NAC's best interests. The referee specifically found that NAC was a very young child who had enjoyed very little stability, finality, and permanency in his life; that he deserved stability, finality, and permanency; that mother and father had demonstrated over the last four years that they were unable to address their mental illness and substance abuse; that NAC had lost his paternal great grandmother, who had been the only stable person in his life; that NAC was with a family member who was willing to give him a permanent home; and that NAC could not wait any longer for mother and father to get their lives together. The referee further noted that NAC was currently nine years old and had been removed from his parents in 2013 when he was five years old.
An order was entered terminating mother's parental rights to NAC. This appeal followed.
II. ANALYSIS
A. PROCEDURAL DUE PROCESS
On appeal, mother first argues that she was denied due process because she (1) was not advised of her right to a jury trial, (2) was not advised of her right to demand a judge and was prevented from making such a demand, and (3) was not appointed counsel until the first day of the trial.
"Generally, whether child protective proceedings complied with a respondent's substantive and procedural due process rights is a question of law that this Court reviews de novo." In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). We also review de novo as questions of law the interpretation and application of court rules. In re PAP, 247 Mich App 148, 152; 640 NW2d 880 (2001). However, all of mother's due process arguments are unpreserved on appeal because she did not raise any of these issues in the trial court. In re TK, 306 Mich App at 703. "An unpreserved claim of constitutional error is reviewed for plain error affecting substantial rights." In re Williams, 286 Mich App 253, 274; 779 NW2d 286 (2009). Unpreserved non-constitutional claims of error are also reviewed for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). "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).
We first address mother's argument that the trial court erred by failing to inform her of her right to a jury trial. A respondent in a child protective proceeding may demand a jury trial only at the adjudicative phase, where the petitioner must prove by a preponderance of the evidence the existence of a statutory ground for jurisdiction alleged in the petition; there is no right to a jury at the dispositional phase. In re Sanders, 495 Mich 394, 405-406; 852 NW2d 524 (2014); see also MCR 3.911(A). The Sanders Court explained that the right to a jury in the context of child protective proceedings is a statutory right rather than a constitutional one. Id. at 418 n 15, citing MCL 712A.17(2). Furthermore, child protective proceedings are civil rather than criminal matters, In re AMB, 248 Mich App 144, 221; 640 NW2d 262 (2001), and the Michigan Constitution provides that the right to a jury trial "shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law," Const 1963, art 1, § 14. "The right to a jury trial in a civil action is permissive, not absolute." Marshall Lasser, PC v George, 252 Mich App 104, 106; 651 NW2d 158 (2002).
MCL 712A.17(2) provides in pertinent part that "[e]xcept as otherwise provided in this subsection, in a hearing other than a criminal trial under this chapter, a person interested in the hearing may demand a jury of 6 individuals, or the court, on its own motion, may order a jury of 6 individuals to try the case." The Sanders Court further indicated that it "express[ed] no opinion about whether the jury guarantee in MCL 712A.17(2) is constitutionally required." Sanders, 495 Mich at 418 n 15. In the instant case, mother does not argue that any of her alleged claims of error involved deprivations of a constitutional right other than her general right to due process, and she does not provide any authority or cogent legal argument suggesting that compliance with the applicable statutes and court rules fails to adequately protect her due process rights. Therefore, any such argument is abandoned because a "party cannot simply assert an error or announce a position and then leave it to this Court to discover and rationalize the basis for [her] claims, or unravel and elaborate for [her her] argument, and then search for authority either to sustain or reject [her] position," In re TK, 306 Mich App at 712 (quotation marks and citation omitted; alterations in original).
The procedure for demanding a jury for the adjudication trial in a child-protective proceeding is contained in MCR 3.911(B), which provides as follows:
(B) Jury Demand. A party who is entitled to a trial by jury may demand a jury by filing a written demand with the court within:Additionally, MCR 3.965(B)(7) provides that at the preliminary hearing, the "court must advise the respondent of the right to trial on the allegations in the petition and that the trial may be before a referee unless a demand for a jury or judge is filed pursuant to MCR 3.911 or 3.912."
(1) 14 days after the court gives notice of the right to jury trial, or
(2) 14 days after an appearance by an attorney or lawyer-guardian ad litem, whichever is later, but no later than 21 days before trial.
The court may excuse a late filing in the interest of justice. [Emphasis added.]
In this case, mother did not attend the May 3, 2017 preliminary hearing even though she was notified of this hearing and the petition that sought to terminate her parental rights. Due to mother's absence, the referee could not inform mother at the preliminary hearing of her right to demand a jury trial. However, MCR 3.965(B)(1) provides in pertinent part that "[t]he preliminary hearing may be adjourned for the purpose of securing the appearance of an attorney, parent, guardian, or legal custodian or may be conducted in the absence of the parent, guardian, or legal custodian if notice has been given or if the court finds that a reasonable attempt to give notice was made." (Emphasis added.) Here, CPS specialist Beydoun contacted mother to notify her of the preliminary hearing, and mother indicated that she would not attend. Because it was permissible in these circumstances under MCR 3.965(B)(1) for the referee to proceed with the preliminary hearing in mother's absence, mother has not demonstrated plain error on appeal based on the ground that she was not advised at the preliminary hearing of her jury trial right. In re VanDalen, 293 Mich App at 135. Moreover, mother was present during the entirety of both days of her adjudication trial and permanent custody hearing, was represented by appointed counsel during those proceedings, never requested a jury trial, and never objected to the absence of a jury. Therefore, under the totality of the circumstances, mother waived her right to have a trial by jury. See Marshall Lasser, 252 Mich App at 108-109 (holding that "under a 'totality of the circumstances' test," the parties' full and active participation in the bench trial without objecting or giving any indication of participating under protest constituted an acquiescence to the bench trial and a waiver of the secured right to a jury).
Mother does not argue on appeal that she did not have notice of the preliminary hearing. Nonetheless, MCR 3.920(D)(2)(b) provides that when a child is placed outside the home, notice of a preliminary hearing "may be in person, in writing, on the record, or by telephone."
Next, mother argues similarly that she was denied due process because the referee did not advise her of her right to demand a judge and incorrectly told her on the first day of trial that it was too late to demand a judge.
As previously noted, mother does not argue that compliance with the applicable court rules would still constitute a violation of her constitutional due process rights. Accordingly, we confine our analysis to determining whether mother has demonstrated plain error based on the application of the pertinent court rules, and we consider any argument that the court rules themselves are somehow constitutionally insufficient to be abandoned. In re TK, 306 Mich App at 712.
A judge is required to preside at a jury trial. MCR 3.912(A(1). Furthermore, MCR 3.912(B) permits a party to demand that a judge preside over a nonjury trial rather than a referee, and the court rule further provides the procedures for making such a demand. Specifically, MCR 3.912(B) provides as follows:
(B) Right; Demand. The parties have the right to a judge at a hearing on the formal calendar. A party may demand that a judge rather than a referee preside at a nonjury trial by filing a written demand with the court within:As previously noted, MCR 3.965(B)(7) provides that a court must inform the respondent at the preliminary hearing of the right to a trial on the petition allegations and "that the trial may be before a referee unless a demand for a jury or judge is filed pursuant to MCR 3.911 or 3.912." As we have also previously noted, MCR 3.965(B)(1) permits the preliminary hearing to be conducted in the absence of a parent who has been given notice.
(1) 14 days after the court gives notice of the right to a judge, or
(2) 14 days after an appearance by an attorney or lawyer-guardian ad litem, whichever is later, but no later than 21 days before trial.
The court may excuse a late filing in the interest of justice. [Emphasis added.]
In this case, mother has failed to demonstrate plain error based on her not being advised at the preliminary hearing of her right to have a judge rather than a referee preside over her trial because the referee was authorized under MCR 3.965(B)(1) to proceed with the preliminary hearing that mother voluntarily declined to attend despite having received notice of the hearing. In re VanDalen, 293 Mich App at 135. Furthermore, mother never demanded a jury or a judge at any time, and it was therefore permissible under the court rules for a referee to preside over these proceedings. MCR 3.913(B) ("Unless a party has demanded trial by jury or by a judge pursuant to MCR 3.911 or MCR 3.912, a referee may conduct the trial and further proceedings through disposition."); see also MCR 3.913(A)(1) (providing that a court may assign a referee to conduct hearings, subject to certain limitations contained in MCR 3.912(A) that are inapplicable to the instant case). And because mother had not made any request for a jury or judge 21 days before the trial began, the referee was not incorrect to inform mother at the trial that the deadline for making such a request had passed. MCR 3.912(B)(2). Although a court "may excuse a late filing in the interest of justice," the court rules still require a "written demand" and there is no indication that mother filed a written demand for a jury or a judge. MCR 3.911(B); MCR 3.912(B). Moreover, as with her jury trial issue, mother waived her right to have a judge rather than a referee preside over the proceedings because mother fully and actively participated in her adjudication trial and permanent custody hearing without raising any objection to the referee conducting the proceedings or otherwise requesting a judge or a jury trial in the proceedings. Cf. Marshall Lasser, 252 Mich App at 108-109.
Next, mother argues that her due process rights were violated because she was not appointed counsel until the first day of trial.
As an initial matter, mother has not cited any legal authority to support her assertion that appointing her counsel on the first day of trial, which was also the first court hearing in the 2017 child protective proceedings that mother attended, was erroneous in this case. Therefore, this issue is abandoned. "A party cannot simply assert an error or announce a position and then leave it to this Court to discover and rationalize the basis for [her] claims, or unravel and elaborate for [her her] argument, and then search for authority either to sustain or reject [her] position," In re TK, 306 Mich App at 712 (quotation marks and citation omitted; alterations in original). "The failure to brief the merits of an allegation of error constitutes an abandonment of the issue." People v Iannucci, 314 Mich App 542, 545; 887 NW2d 817 (2016) (quotation marks and citation omitted); see also Froling v Carpenter, 203 Mich App 368, 373; 512 NW2d 6 (1993).
Moreover, mother's asserted claim of error is without merit nonetheless. The right to appointed counsel for indigent respondents in child protective proceedings is not absolute. This Court has stated that "the United States Constitution guarantees a right to counsel in parental rights termination cases" and that "the constitutional right of due process confers on indigent parents the right to appointed counsel at hearings that may involve the termination of their parental rights." In re Williams, 286 Mich App at 275-276. However, the United States Supreme Court has held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution does not require counsel to be appointed in every parental termination proceeding and that it would "leave the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings to be answered in the first instance by the trial court, subject, of course, to appellate review." Lassiter v Dep't of Social Servs, 452 US 18, 24, 31-32; 101 S Ct 2153; 68 L Ed 2d 640 (1981) (emphasis added). This Court has also stated that in the termination-of-parental-rights context, "it is unclear whether [a] respondent's right to court-appointed counsel is guaranteed by the Michigan Constitution." In re Osborne (On Remand, After Remand), 237 Mich App 597, 606; 603 NW2d 824 (1999).
Regardless, a respondent's right to counsel in termination-of-parental-rights proceedings is also protected in Michigan by statute and court rule, In re Williams, 286 Mich App at 274, and for the reasons that follow, mother has not demonstrated any violations of these provisions in this case.
As with mother's previous arguments, she does not argue that compliance with the applicable statutes and court rules would still constitute a violation of her constitutional due process rights. Accordingly, we confine our analysis to determining whether mother has demonstrated plain error based on the application of the pertinent statutes and court rules, and we consider any argument that these statutes and court rules themselves are somehow constitutionally insufficient to be abandoned. In re TK, 306 Mich App at 712. --------
Specifically, MCL 712A.17c(4) and (5), which are applicable to child-protective proceedings, provide as follows:
(4) In a proceeding under section 2(b) or (c) of this chapter, the court shall advise the respondent at the respondent's first court appearance of all of the following:This right to counsel in child-protective proceedings is also set forth in MCR 3.915(B)(1)(a) and (b), which provide as follows:
(a) The right to an attorney at each stage of the proceeding.
(b) The right to a court-appointed attorney if the respondent is financially unable to employ an attorney.
(c) If the respondent is not represented by an attorney, the right to request and receive a court-appointed attorney at a later proceeding.
(5) If it appears to the court in a proceeding under section 2(b) or (c) of this chapter that the respondent wants an attorney and is financially unable to retain an attorney, the court shall appoint an attorney to represent the respondent. [Emphasis added.]
(B) Child Protective Proceedings.
(1) Respondent.
(a) Advice and Right to Counsel. At respondent's first court appearance, the court shall advise the respondent of the right to retain an attorney to represent the respondent at any hearing conducted pursuant to these rules and that
(i) the respondent has the right to a court appointed attorney at any hearing conducted pursuant to these rules, including the preliminary hearing, if the respondent is financially unable to retain an attorney, and,
(ii) if the respondent is not represented by an attorney, the respondent may request a court-appointed attorney at any later hearing.
(b) Appointment of an Attorney. The court shall appoint an attorney to represent the respondent at any hearing, including the preliminary hearing, conducted pursuant to these rules if
The court rule "requires affirmative action on the part of the respondent to trigger the appointment and continuation of appointed counsel in all hearings which may affect the respondent's parental rights," and the court rule "charges parents with 'some minimum responsibility' in regard to having counsel appointed for their benefit." In re Hall, 188 Mich App 217, 218, 222; 469 NW2d 56 (1991) (emphasis added).(i) the respondent requests appointment of an attorney, and
(ii) it appears to the court, following an examination of the record, through written financial statements, or otherwise, that the respondent is financially unable to retain an attorney. [Emphasis added.]
In this case, counsel was appointed for mother for her first court appearance in the 2017 proceedings, and counsel represented mother throughout adjudication trial and permanent custody hearing that resulted in the termination of mother's parental rights. Mother had not appeared at either of the previous court hearings and there was accordingly no obligation for the court to inform her of her right to counsel sooner. MCL 712A.17c(4); MCR 3.915(B)(1)(a)(i). Mother also does not claim that there somehow was a failure to timely appoint her counsel after she had requested the appointment of counsel; in other words, to the extent that counsel being appointed on the first day of trial when mother first appeared for a court proceeding could be labeled a "delay" in appointing counsel, such delay was due solely to mother's failure to take affirmative action to trigger the appointment of counsel. MCR 3.915(B)(1)(b); In re Hall, 188 Mich App at 218, 222. Mother was not deprived of her right to be represented by counsel in the proceedings. Mother has simply failed to demonstrate plain error on this ground. In re VanDalen, 293 Mich App at 135.
B. STATUTORY GROUNDS
Next, mother argues that there was not clear and convincing evidence to support the finding of a statutory ground for terminating her parental rights.
"In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich App at 139. This Court "review[s] for clear error [] the court's decision that a ground for termination has been proven by clear and convincing evidence . . . ." In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000), abrogated by statute on other grounds as stated in In re Moss, 301 Mich App 76, 83, 88; 836 NW2d 182 (2013). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re Moss, 301 Mich App at 80 (quotation marks and citation omitted).
Under MCL 712A.19b(3)(j), which was one of the statutory grounds relied upon in the trial court, a parent's parental rights may be terminated if the court finds by clear and convincing evidence that "[t]here is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent."
In this case, there was evidence that NAC was returned to mother's care and custody in July 2014 after she had completed services aimed at addressing her substance abuse and mental health issues. However, shortly after those child-protective proceedings were dismissed in 2014, mother nonetheless gave the responsibility of caring for NAC back to the paternal great grandmother under a power of attorney because mother did not have a stable living situation at the time. The evidence further demonstrated that mother did not maintain regular contact with NAC or provide financial support for him while he was in his paternal great grandmother's care from 2014 until April 2017. In 2017, when the paternal great grandmother became sick, mother only learned of the illness through father, and mother was not even living in the area. According to Beydoun's testimony, mother was aware that nobody was caring for NAC while the paternal great grandmother was sick, and yet, mother took no action to ensure that NAC was cared for because she was still trying to "get her life together." The record reflects that mother continued to struggle with substance abuse issues in 2017 as she had during the previous 2013-2014 proceedings, as mother tested positive for cocaine in April 2017, admitted to recent heroin use, and tested positive for opiates on the second day of the trial in the instant case. Mother was planning to enter a residential substance abuse treatment facility. Mother did not have employment or stable housing, and she admitted that she was not currently ready to care for NAC.
Furthermore, there was evidence that NAC's physical and emotional well-being suffered during early 2017 as his paternal great grandmother's health declined to the point that she was eventually admitted into nursing home care, leaving NAC with nobody to care for him. There was testimony that beginning in January 2017, when the paternal great grandmother's health began diminishing, NAC started coming to school unkempt, unclean, and with stained clothes. NAC also had a rash that continued to worsen. Gripp testified that she saw NAC walking after school to a local bar and to the public library, covering a distance of approximately 2.5 miles. There was further testimony that it was normal for nine-year-old NAC to play at the park, unsupervised, between the end of school at 3:00 p.m. and 5:00 p.m. and that NAC worried about who was going to take care of him and pick him up after school.
Under these circumstances, there is a reasonable likelihood that NAC would be harmed if returned to mother's care based on her chronic abuse of illegal substances and resultant unstable lifestyle, failure to even attempt to make sure that he was adequately cared for while entrusted to somebody else, and willingness to knowingly allow him to essentially take care of himself at nine years old without any adult caretaker. MCL 712A.19b(3)(j). Therefore, the trial court did not clearly err in finding that termination was proper under MCL 712A.19b(3)(j). In re Trejo, 462 Mich at 356-357. Because at least one statutory ground existed to properly support termination, we need not consider the additional grounds relied upon by the trial court. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
C. BEST INTERESTS
Next, mother argues that it was not in the best interest of NAC to terminate mother's parental rights.
"Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). "[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App at 90. We review a trial court's best-interests determination for clear error. In re Trejo, 462 Mich at 356-357.
At the best-interest stage, the focus is on the child and not the parent. In re Moss, 301 Mich App at 87. "In deciding whether termination is in the child's best interests, the court may consider 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 Olive/Metts Minors, 297 Mich App at 41-42 (citations omitted). A court may also consider the length of time that the minor child was in foster care or placed with relatives and the likelihood that the child could be returned to the parents' home within the foreseeable future. In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012).
Here, NAC had been removed from respondents in 2013 and had been involved in child-protective proceedings that ended in his eventual return to respondents' care in 2014. Nonetheless, respondents placed NAC with his paternal great grandmother shortly after those proceedings concluded, and NAC had lived with his paternal great grandmother rather than respondents for almost three years before the instant petition was filed in May 2017. His paternal great grandmother is now deceased. There was evidence that NAC was currently placed with his paternal uncle, who was willing to pursue adoption, and there is no indication that mother can actually provide the stability that NAC needs in the foreseeable future. NAC was in limbo for almost three years before the instant proceedings were initiated—constituting about a third of his life at that point—waiting for mother to become stable. He should not have to wait any longer. Thus, the trial court did not clearly err by finding that termination of mother's parental rights was in the minor child's best interests. In re Trejo, 462 Mich at 356-357.
Affirmed.
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro
/s/ Jonathan Tukel