Opinion
No. 334162
03-16-2017
In re A. Z. MCCARTHEY, Minor.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 16-521898-NA Before: RIORDAN, P.J., and METER and FORT HOOD, JJ. PER CURIAM.
Respondent appeals as of right the order terminating her parental rights to a minor child, AZM. Her rights were terminated under MCL 712A.19b(3)(b)(i) (parent's act caused physical injury to or physical or sexual abuse of child or sibling of child and there is a likelihood of future abuse), MCL 712A.19b(3)(b)(ii) (parent had the opportunity to prevent such injury or abuse but did not do and there is a likelihood of future abuse), MCL 712A.19b(3)(g) (failure to provide proper care or custody and no reasonable expectation of being able to provide proper care and custody within a reasonable time), MCL 712A.19b(3)(j) (reasonable likelihood, based on conduct or capacity of parent, that child will be harmed if returned home), MCL 712A.19b(3)(k)(iii) (parent caused severe physical abuse to child or sibling of child), MCL 712A.19b(3)(k)(iv) (parent's abuse of child or sibling of child resulted in loss or serious impairment of a limb or an organ), and MCL 712A.19b(3)(k)(v) (parent's abuse of child or sibling of child resulted in a life-threatening injury). We affirm.
The Department of Health and Human Services (DHHS) filed a petition to terminate respondent's parental rights to AZM. The petition alleged: (1) respondent was the mother of AZM; (2) respondent was the mother of DT, a seven-week-old who died of sudden infant death syndrome; (3) respondent was the mother of IM, a two-year-old who died of blunt force trauma to his abdomen; (4) respondent was convicted of involuntary manslaughter for the death of IM in 2010, and (5) respondent was currently on parole.
Respondent first argues that the trial court did not adhere to MCR 3.971 when it took her no-contest plea, and that the statutory grounds for termination were not established by clear and convincing evidence. We disagree.
Certain referees were used throughout these proceedings. For ease of reference, this opinion will simply employ the terms "court" or "trial court" when referring to the person presiding over the proceedings.
Generally, a respondent must first raise a challenge to his or her plea in a motion before the trial court to preserve the issue. See In re Zelzack, 180 Mich App 117, 125-126; 446 NW2d 588 (1989) (this Court applied criminal law "by analogy" to a jurisdictional plea and held that the challenge to a plea was not preserved because it was not first raised in a motion before the trial court); see also People v Nowicki, 213 Mich App 383, 385; 539 NW2d 590 (1995). Respondent did not challenge her plea in a motion before the trial court, and therefore, this issue is unpreserved.
An unpreserved issue is reviewed for "plain error." In re Egbert R Smith Trust, 274 Mich App 283, 285; 731 NW2d 810 (2007). "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). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008).
With regard to the statutory grounds for termination, we note that a respondent is not required to take exception to a trial court's findings or decision. MCR 2.517(A)(7). However, respondent pleaded no contest to the existence of the statutory grounds for termination. 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). Thus, respondent waived her challenge to the sufficiency of the evidence supporting termination. Id. (discussing a no-contest plea in a termination case).
"This Court reviews for clear error a trial court's factual findings and ultimate determinations on the statutory grounds for termination." In re White, 303 Mich App 701, 709; 846 NW2d 61 (2014). "A finding is clearly erroneous if 'the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.' " In re Gonzales/Martinez, 310 Mich App 426, 430-431; 871 NW2d 868 (2015), quoting In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003).
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 respondent's 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." Also, if the respondent enters a plea of no contest, under MCR 3.971(C)(2) the trial 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 first contends that the trial court violated MCR 3.971(B)(1) because it did not advise her of the allegations in the petition before accepting her plea, and she therefore was unaware that she was effectively admitting that she posed a risk of harm to AZM. The trial court did not recite the allegations of the petition during the hearing where it accepted respondent's plea. However, respondent was fully informed about the allegations of the petition because her counsel waived a formal reading of the petition during a prior hearing. As noted above, 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." Hudson, 294 Mich App at 264. Respondent may not contend that she was not informed about the contents of the petition after her counsel waived its reading. During her plea hearing respondent confirmed that she fully understood the ramifications of her plea. Additionally, respondent's counsel specifically noted on the record that the allegations in question only pertained to the abuse of and injures to IM, and that there was no allegation that respondent abused AZM. Under all the circumstances, we find no basis for reversal.
We also note that respondent technically did not "admit" the allegations; instead, she entered a plea of no contest, after which the trial court relied on documentary evidence related to respondent's involuntary manslaughter conviction to establish the statutory grounds for termination.
Relatedly, respondent contends that the trial court erred because it failed to state on the record why respondent's plea of no contest was appropriate, in accordance with MCR 3.971(C)(2). At the outset of the adjudicative hearing petitioner's counsel stated, "[t]his is the case where [respondent] is going to plead no contest. I believe it will be for civil liability in this case[.]" The trial court then asked respondent's counsel, "[i]s that right?" Respondent's counsel replied, "[y]es, your honor, it is." While the trial court did not explicitly state why a plea of no contest was appropriate, the record demonstrates that it verified the propriety of the purpose for the plea. Further, even if the trial court failed to fully comply with MCR 3.971(C)(2), respondent has failed to demonstrate how this error affected her substantial rights.
Next, respondent contends that her plea could not have been entered into knowingly, understandingly, and voluntarily because the trial court impermissibly combined an adjudicative hearing and dispositional hearing when it accepted respondent's plea. Respondent provides no binding authority in support of her contention. Beyond failing to carry her burden to establish that an error occurred, respondent mistakenly contends that her adjudicative hearing was merged with a dispositional hearing. This Court has held that where at least one of the statutory grounds for termination is established by a plea or by clear and convincing evidence, the subsequent dispositional hearing need only address whether termination of parental rights is in the child's best interests. In re AMAC, 269 Mich App 533, 538-540; 711 NW2d 426 (2006) (holding that a remand to the trial court for a dispositional hearing was necessary only to determine whether termination was in the best interests of the child where a statutory ground for termination had been established during the adjudication and where the trial court failed to hold a dispositional hearing before termination of the respondent's parental rights). The trial court fully complied with the procedure described in AMAC, because the trial court held a dispositional hearing solely to determine whether termination was in the best interests of AZM after respondent entered a plea of no contest.
Respondent's next contention is that the allegations in the petition and the evidence relied on by the trial court to establish the factual basis of respondent's plea did not address whether there was a likelihood that she would pose a risk of harm to AZM in the future. We find no basis for reversal. "Evidence of how a parent treats one child is evidence of how he or she may treat the other children." Hudson, 294 Mich App at 266. Therefore, respondent's behavior toward IM, leading to his death, was evidence of how she would be likely to treat AZM in the future.
The trial court accepted, as part of exhibit 1 during the plea hearing, a settlement statement in which respondent admitted to "whupp[ing]" IM "very hard . . . ."
Respondent argues that mistreatment of one child is not conclusive or automatically determinative with regard to the potential for mistreatment of another child. We first note that the case respondent cites in support of this argument is from 1984 and is not binding under MCR 7.215(J)(1). Moreover, even if treatment of a sibling in general is not automatically determinative, the circumstances with regard to IM were so severe that the trial court properly relied on them in finding a risk of harm to AZM. We also note that certain statutory grounds relied upon, from MCL 712A.19b(3)(k), do not contain a provision regarding future risk of harm. --------
Respondent pleaded no contest to the existence of statutory grounds for termination, but on appeal she contends that there was insufficient evidence establishing the existence of statutory grounds for termination. Even assuming that this issue is preserved, we find no basis for reversal.
Petitioner has the "burden to establish by clear and convincing evidence the existence of a ground for termination." Gonzales/Martinez, 310 Mich App at 431, citing JK, 468 Mich at 210. "To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013).
A trial court may terminate parental rights under MCL 712A.19b(3)(b) if it finds, by clear and convincing evidence, that:
(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
(i) The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the
child will suffer from injury or abuse in the foreseeable future if placed in the parent's home.
(ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent's home.
Respondent was convicted of involuntary manslaughter and second-degree child abuse with regard to IM. Respondent admitted to police that she used corporal punishment on IM before his death. "Evidence of how a parent treats one child is evidence of how he or she may treat the other children." Hudson, 294 Mich App at 266. Thus, the trial court did not err when it concluded that clear and convincing evidence established that respondent injured and physically abused IM and that there was a reasonable likelihood that AZM would suffer from injury or abuse in the foreseeable future if he was placed in respondent's care.
Respondent contends that IM's father was also convicted in relation to IM's death, and that the record is unclear with regard to who inflicted the injuries that caused IM's death. Even if one were to disregard respondent's statements regarding her corporal punishment of IM and also assume that respondent did not actively contribute to IM's death, then "MCL 712A.19b(3)(b)(ii) addresses the harm occasioned by a parent who is unwilling or unable to protect his or her children from abuse." Gonzales/Martinez, 310 Mich App at 432. Thus, even when taking respondent's unsupported assertions as true, respondent's failure to protect IM from fatal physical abuse was established by clear and convincing evidence.
Only one statutory ground need be established for proper termination of parental rights, In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009), and we decline to fully address the multiple additional grounds cited by the trial court. We briefly note, however, that each ground was adequately established.
Respondent contends that the trial court erred when it determined that termination of her parental rights was in AZM's best interests. We disagree. This Court reviews for clear error a trial court's "determination regarding the children's best interests." White, 303 Mich App at 713.
"Even if the trial court finds that the Department has established a ground for termination by clear and convincing evidence, it cannot terminate the parent's parental rights unless it also finds by a preponderance of the evidence that termination is in the best interests of the children." Gonzales/Martinez, 310 Mich App at 434. "[T]he 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[] are all factors for the court to consider when deciding whether termination is in the best interests of the child." Gonzales/Martinez, 310 Mich App at 434 (quotation marks and citation omitted). "With respect to the trial court's best-interests determination, we place our focus on the child rather than the parent." In re Schadler, 315 Mich App 406, 411; ___ NW2d ___ (2016).
The trial court terminated respondent's parental rights because AZM would be at risk of harm from respondent. The court considered during the hearing how respondent caused IM's death through abuse, and how two children had already died while under respondent's care. The court concluded that termination was in AZM's best interests because it would be improper to "somehow gamble on the safety" of AZM.
The evidence petitioner presented supported the trial court's findings and best-interests determination. Respondent admitted to physically abusing IM, and after IM's death she pleaded guilty to involuntary manslaughter and second-degree child abuse. She also failed to immediately take action to bring IM to medical care after he first complained of stomach pain. Less than six months before IM's death, DT died of positional asphyxia while under respondent's care. The court properly focused on the best interests of AZM; he would be at risk of neglect or physical injury if placed in respondent' care.
Affirmed.
/s/ Michael J. Riordan
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood