Opinion
No. 349854
01-28-2020
In re SWEET, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED St. Joseph Circuit Court Family Division
LC No. 2013-000700-NA Before: O'BRIEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ. PER CURIAM.
Respondent-mother, Audra Sue Sweet (respondent) appeals by right the trial court's order terminating her parental rights to the minor children pursuant to MCL 712A.19b(3)(a)(ii) (desertion), (g) (failure to provide proper care and custody and no expectation of being able to provide proper care and custody within a reasonable time), and (j) (reasonable likelihood of harm to the children if returned to the parent's care). The children's father's parental rights were also terminated, but he is not participating in this appeal, so references to "respondent" are to respondent mother. Respondent does not challenge the statutory grounds for termination or the trial court's finding that termination was in the children's best interests. Rather, respondent contends that her due process rights were violated because she appeared without counsel at one hearing, and because at another hearing the trial court accepted her affirmance that she was comfortable proceeding with her appointed attorney despite her expression of a vague desire for "better" counsel. We affirm.
I. BACKGROUND
The instant termination proceedings arise out of a previous history respondent and the children's father had with drug abuse and perpetration of domestic violence by respondent. The Department of Health and Human Services (DHHS) filed a petition on March 21, 2018. DHHS's concerns included respondent's arrest for and charges of domestic violence after admitting to hitting the father, the father's arrest for driving while under the influence of marijuana and other driving offenses, and statements by the children that they felt unsafe or that respondents were engaging in dangerous behaviors. The petition did not initially seek removal of the children, but the trial court ordered that "[a]ny positive drug test may be sufficient cause for the DHHS to request removal of the children." Shortly thereafter, DHHS filed an amended petition seeking removal of the children because both parents tested positive for methamphetamine, amphetamine, and THC. At that time, the whereabouts of the children were unknown.
The trial court held a "pretrial hearing" on March 29, 2018, that respondent attended, but neither her attorney nor the prosecutor attended. The trial court explained that it was holding the hearing ahead of the actual pretrial scheduled for later that afternoon, because respondent happened to be in the building that morning and the court wanted "to take advantage of that to let [respondent] know what the current circumstances of the neglect case are." Respondent responded that she would "like to do what's right but I would like to know my rights and I feel like the petition, a lot of things are not completely accurate." She further stated that she "d[id]n't have the resources like I did last time." Respondent did not further explain either statement. Respondent also informed the court that she wanted to place her children with a family member. The trial court placed respondent under oath, and respondent testified that the proposed caretaker was a family member. Respondent thought the family member was appropriate for her children's care because the family member had a full-time job, and neither the family member nor her boyfriend had felony records. The trial court promised respondent that it would direct CPS to investigate respondent's proposed caretaker and ended the hearing.
The proposed caretaker was described as a sister of the children's father. The children were ultimately placed with a paternal aunt, but insofar as we can determine, it appears they were placed with a different paternal aunt from the person requested by respondent.
At the conclusion of the March 29, 2018, hearing, the trial court specifically noted that it would see respondent back for the pretrial hearing later that afternoon. The lower court register of actions seemingly indicates, and several orders strongly imply, that another hearing was in fact held later in the same day on March 29, 2018, and respondent failed to attend that hearing. No transcript of any such hearing has been presented to this Court, in apparent violation of MCR 7.210(B)(1)(a). Also on the same day, the trial court entered an order holding respondent in contempt of court pending her "truthful disclosure of the whereabouts of the children," and it issued a bench warrant for respondent's arrest. We have been unable to find in the record any documentation regarding the promised CPS investigation of respondent's proposed caretaker.
The trial court held a pretrial adjudication hearing on May 11, 2018, which respondent and her counsel both attended. The court asked respondent and her counsel whether respondent would like to make admissions to any parts of the petition rather than proceeding with a trial. Counsel stated,
I have discussed this matter with my client, both a week or so ago and this morning. It is her decision that she will admit the allegations of Paragraph 1 of the complaint, that there was a domestic dispute on or about February 11, 2018
and it was between her and [the children's father] and it was in the home, making it a place not conducive for raising the children.The court stated to respondent,
I need to let you know a couple of things before I can accept an admission from you. I already explained to you that you have a right to have a trial on the allegations of the petition. When you enter an admission, you give up the right to have that trial. Your admission takes the place of a trial.Respondent replied, "Right." The court continued to explain the consequences for respondent's decision to make admissions to portions of the allegations made against her and she responded, "I understand." The court stated, "[B]efore I can accept an admission from you, we have to know that it is voluntary, that it's your choice to make an admission, not the result of pressure that's being put on you." Respondent replied, "Sure."
We note that a parent's parental rights may not be terminated on the basis of being a victim of domestic violence, but in this case, respondent was the perpetrator, which is an entirely appropriate basis. See In re Plump, 294 Mich App 270, 273; 817 NW2d 119 (2011).
The trial court asked respondent again whether the admission was her choice. The following, somewhat disjointed, colloquy then occurred:
Respondent. I just want to get on the road to getting my children back home and if this is what I have to do to get my children on the road to going back home, then yes, I make an admission. There has been, it has been domestic violence [sic] in the house for some little while.
The Court. Well, one of the things is --
Respondent. Oh, and whatever we have to do to do that, let's do it.
The Court. All right. And I guess what I should explain to you is we don't have to do it this way. You could have a trial if you would rather have a trial.
Respondent. I feel like I keep bringing all these people in and wasting a lot of people's time and so let's just --
The Court. Let's approach it from --
Respondent. I really wish I had more time to get better counsel too on [sic] but I don't want to keep coming --
The Court. Let's approach it from a little bit different direction. Really, the only reason and this goes to the voluntariness part of it, the only reason you should be making an admission today is because whatever you will say when you make an admission is true.
Respondent. Well, to one it is true.
The Court. Okay.
Respondent. I mean I'm not --. I mean there has been, me and Dad have been --. I mean it's not -- it was not fair for our children to be going through what they were going through so.
The Court. We'll get to that part it [sic] in a second. I also need to know from you that you have enough mental capacity to --
Respondent. I did my psychologic evaluation two days ago. It should be on its way. But yes.
The Court. Do you feel comfortable sitting there right now making a decision about something that's very important to you?
Respondent. No.
The Court. You don't. Why not?
Respondent. I mean do I feel comfortable making this decision, no. I really wish I could take on - I really wish I can [sic] retain a different attorney to tell you the truth. I keep going through - I mean a lot of these, I really wish I would have better counsel.
I mean Howard Bush [respondent's appointed counsel], we had a talk last week and it was pretty pleasant and he seems to be I don't know. I really feel a lot of pressure. I've sat for 45 days and there wasn't much I could do. I wasn't able to do the substance abuse counseling like I had set up. My jobs, I feel I'm set back 45 days.
The Court. Yeah, well, let me explain whether or not you --
Unidentifiable Speaker. She did that to herself.
Respondent. I did that to myself.
The Court. -- want to have a different attorney --
Respondent. Cause of my mouth.
The Court. -- is not really directing the question that I asked you about whether you have enough mental ability today to make a decision, make an informed decision.
Respondent. Then yes, I do.
The Court. Do you feel like you have enough mental capacity?
Respondent. Yes, I do.
The Court. You would have the right to retain an attorney but you don't have the right to pick and choose among the court-appointed attorneys.
Respondent. I know that. I understand that.
The Court. Are you satisfied with proceeding with Mr. Bush today?
Respondent. No, I will retain one when I get out.
The Court. What about for purposes of today though?
Respondent. Today, yes.
Later in the same hearing, the court addressed the matter of potential consequences from termination of parental rights. The trial court again addressed respondent directly and stated, "Sometimes down the road from here, new things happen that might cause the agency to feel that it would be unsafe to ever return the kids to your care." Respondent replied,
And I feel I need to get - I feel like I want to take this - I need to wait and get better counsel, I really do cause that's -. Cause I've seen, I mean, I've been, my friends have been railroaded, done everything that they [sic] supposed to do before, then all their -.The court then discussed the fact that if respondent failed in the future to provide a safe environment for her children, DHHS could file another petition to request termination of respondent's parental rights. The court returned to respondent's concern about her current counsel and asked, "And let's address Mr. Bush again, knowing all of what I've just told you, are you comfortable proceeding today with Mr. Bush?". Respondent replied, "No, no, I am." The court began to speak again, but respondent interrupted and said, "I am." The court then said, "Okay. Just want to make sure."
The matter proceeded through numerous further hearings, many of which respondent did not attend. Notably, both the foster care worker for DHHS and respondent's own attorney repeatedly explained to the court that they had engaged in numerous efforts to communicate with respondent, with limited success. Although some of their communications showed that respondent had actually read their messages, respondent mostly refused to return messages, texts, or telephone calls. The foster care worker observed that even though respondent read the messages he sent through Facebook, she both failed to respond and continued to make numerous posts on Facebook. Respondent continued to test positive for drugs on the occasions she provided samples at all, she checked into two drug rehabilitation programs only to leave again almost immediately, continued "antagonizing" the children's father, and generally refused the help offered by the foster care worker. Respondent's attorney indicated on several occasions that he simply had no contact with respondent. Meanwhile, the children, who had all been seriously traumatized in respondent's and the father's care, were showing significant progress in their placement, although they still "ha[d] a lot of ways to go."
Respondent appeared for the termination hearing on April 22, 2019, with her attorney. After the trial court read the termination petition from the bench, respondent asked, "So is this a day trial like all in one, right now I'm found guilty or not guilty? Is that what this is?" The trial court admonished respondent that she could not speak out of turn. Shortly after the foster care worker began his testimony, eight minutes total into the hearing, respondent left the courtroom. Respondent's counsel asked that "the record please reflect that I did not push her out." The court replied,
Right. And I observed that no pushing her out by the attorney. She's been mumbling some things and making some statements. I couldn't understand her to tell you the truth. She grabbed her purse and belongings and left the door, which is her right if she doesn't want to participate.Later in the hearing, the trial court reiterated that
[a]s soon as we started testimony, she got up while she was mumbling things in the beginning and I asked her to wait her turn to speak and she finally got up and grabbed her purse and some other belongings and left the courtroom so we weren't able to hear what she might have to say or any position that she's had. She has not been cooperative with the worker or with her own attorney and the same with the father.The court also remarked that respondent "just looked awful which I feel really bad about" and that it had been surprised and hopeful when respondent actually showed up, but that respondent's departure "remove[d] any doubt if there ever was any." The foster care worker was ultimately the only witness. Her attorney explained to the court that respondent "told [him] at one point she blurted out that she had witnesses to call," but counsel "ha[d] no idea who they are."
The court determined respondent's barriers to being able to care for the children included her inability to maintain stable housing, transportation, and employment, as well as respondent's substance abuse and perpetration of domestic violence in the presence of her children. The court noted that respondent had not shown an ability to overcome these barriers and was in a worse position than she was when the case commenced. Respondent admitted she needed substance abuse treatment, but she did not pursue the treatment when she received opportunities to do so. The court was concerned that these barriers, particularly the use of methamphetamines, prompted her commission of domestic violence, stating that users of methamphetamines "act in very bizarre and potentially dangerous ways," and respondent's inability to provide consistently clean drug screens perpetuates that concern and her future care of her children. The court concluded, "[P]arents that are under the influence of methamphetamine just cannot be appropriate parents for children and this is a classic example of that." The trial court terminated respondent's parental rights as discussed above.
II. ISSUE PRESERVATION
Respondent never expressed any concern about her attorney's absence at the hearing on March 29, 2018. Therefore, she failed to raise the issue, limiting our review to plain error affecting respondent's substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). Although respondent indicated that she wanted "better" counsel at the pretrial hearing, she responded to the trial court's questioning by affirming that she was comfortable proceeding with her assigned attorney at that hearing. Therefore, she likely waived any claim that the trial court erred by failing to undertake further precautionary measures. See Farm Credit Services of Michigan's Heartland, PCA v Weldon, 232 Mich App 662, 683-684; 591 NW2d 438 (1998); People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000). Nevertheless, "this Court may overlook preservation requirements where failure to consider the issue would result in manifest injustice." Steward v Panek, 251 Mich App 546, 554; 652 NW2d 232 (2002) (internal citations omitted). The gravamen of respondent's appeal is that the trial court failed to perform its duties, arguably bringing her claims within the penumbra of MCR 2.517(7), under which an objection to a "finding or decision" by a court need not be preserved. Furthermore, a respondent's expression of comfort with an attorney does not necessarily resolve whether that attorney was actually effective. See People v Mitchell, 454 Mich 145, 151 n 6; 560 NW2d 600 (1997). In light of the seriousness of a claimed due process violation resulting in termination of parental rights, we choose to fully review respondent's claims irrespective of any infirmities in their preservation.
III. STANDARD OF REVIEW
"[P]arents have a significant interest in the companionship, care, custody, and management of their children, and the interest is an element of liberty protected by due process." In re Sanders, 495 Mich 394, 409; 852 NW2d 524 (2014) (internal citations omitted). "Whether child protective proceedings complied with a parent's right to due process presents a question of constitutional law, which we . . . review de novo." In re Ferranti, 504 Mich 1, 14; 934 NW2d 610 (2019). We also review de novo the "interpretation and application of statutes and court rules." Id. "[T]he principles of effective assistance of counsel developed in the context of criminal law apply by analogy in child protective proceedings." In re CR, 250 Mich App 185, 197-198; 646 NW2d 506 (2002), overruled on other grounds by In re Sanders, 495 Mich at 422 (quotation omitted). "However, the child's welfare is primary in child protective proceedings." In re Brock, 442 Mich 101, 115; 499 NW2d 752 (1993). "[T]he decision to permit substitution of appointed counsel is within the discretion of the trial court." People v Russell, 471 Mich 182, 192 n 25; 684 NW2d 745 (2004). An abuse of discretion occurs "when the trial court chooses an outcome falling outside th[e] principled range of outcomes." People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
IV. APPEARANCE WITHOUT COUNSEL AT MARCH 29, 2018, HEARING
Respondent first argues that her due process rights were violated because the trial court convened a "pretrial hearing" with her but without her attorney, and then proceeded to take her testimony without advising her of her rights or the possible consequences of proceeding. We disagree.
Parents have a right to appointed counsel in termination of parental rights hearings. See MCR 3.915(B)(1); In re Williams, 286 Mich App 253, 275-276; 779 NW2d 286 (2009) (internal citations omitted). An adjudication hearing is a critical stage in a child protective proceeding. In re Sanders, 495 Mich at 403-407. Therefore, parents are entitled to be represented by counsel at such hearings. See In re Collier, 314 Mich App 558, 570-573; 887 NW2d 431 (2016). Nevertheless, in the criminal context, and therefore applicable by analogy, "the deprivation of counsel at a preliminary examination is subject to harmless-error review under the federal Constitution." People v Lewis, 501 Mich 1, 9; 903 NW2d 816 (2017).
The March 29, 2018, transcript explains that the actual pretrial hearing was scheduled for later that afternoon. If respondent intended to refer to the actual pretrial hearing, her failure to provide this court with a transcript of that hearing waives any claim based on that hearing. See MCR 7.210(B)(1)(a); People v Anderson, 209 Mich App 527, 535; 531 NW2d 780 (1995). The hearing for which we have a transcript was convened because the court learned that respondent was in the building that morning and wanted "to take advantage of that to let [her] know what the current circumstances of the neglect case are." Respondent stated that vague and undefined inaccuracies existed in the petition, that she lacked equally unspecified resources, and that she wanted the court to place her children with a particular family member. It appears that the trial court attempted to honor respondent's request. Otherwise, the significance, if any, of respondent's statements—which were not made under oath—would be guesswork. Respondent contends that she entered a plea, but the transcript unambiguously establishes that she did not. Indeed, respondent fails to coherently explain how her rights were prejudiced. See Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Respondent attempts to tie this issue to her second claim that the trial court should have appointed her a different attorney, and because it did not, respondent lost faith in the judicial system. We recognize that participating in legal proceedings is daunting. However, faith in the system is not a legally recognized right, and a disbelief in the system does not excuse a person from their obligations or responsibilities. --------
If respondent had entered a plea, or if the trial court had engaged in actual adjudication, then respondent might have a valid claim that her due process rights were violated when she appeared without counsel at the hearing. See In re Ferranti, 504 Mich at 21, 29-31. However, it is obvious that nothing even slightly substantive occurred at the hearing, much less anything that could have affected the outcome of the proceedings. Indeed, the hearing was not even adversarial, and no opposing counsel was present. The trial court imparted some information to respondent as a convenience to her, and the trial court agreed to look into respondent's request to place the children with a specified relative. The record indicates that the actual pretrial hearing occurred later in the day, and apparently respondent declined to appear at that hearing at all. Counsel's absence from the March 29, 2018, hearing simply posed no conceivable increase to respondent's " 'risk of erroneous deprivation' of [her] parental rights." Sanders, 495 Mich at 406, quoting In re Brock, 442 Mich at 111. Nothing in the record suggests that the proceedings were not otherwise fair. See Lewis, 501 Mich at 10-11.
We conclude that even if the March 29, 2018, hearing may have been somewhat irregular, it was, if anything, to respondent's benefit. Respondent fails to establish that any irregularity was "inconsistent with substantial justice" such that this Court should disturb the trial court's decision. MCR 2.613(A); In re TC, 251 Mich App 368, 371; 650 NW2d 698 (2002).
V. EXPRESSED DISAPPOINTMENT WITH COUNSEL AT MAY 11, 2018, HEARING
Respondent next argues that the trial court erred by failing to make further inquiries into her expression of dissatisfaction with counsel at the May 11, 2018, hearing and appointing substitute counsel. We disagree.
The court should try "to elicit information from the [respondent] concerning any problems with the attorney-client relationship." People v Morgan, 144 Mich App 399, 401-402; 375 NW2d 757 (1985). A trial court maintains the discretion to substitute appointed counsel "upon a showing of adequate cause." People v Krist, 93 Mich App 425, 435; 287 NW2d 251 (1979). However, although an indigent respondent "may be entitled to have [their] assigned lawyer replaced upon a showing of adequate cause," indigent respondents are not entitled to "an attorney of [their] own choosing." Id. A respondent shows good cause for the court to appoint new counsel when the respondent establishes a breakdown within the attorney-client relationship or that counsel is "inadequate, lacking in diligence, or disinterested in [respondent's] case." Morgan, 144 Mich App at 401.
A trial court should listen to and investigate a claim that assigned counsel is disinterested or incompetent, or that a fundamental breakdown in the attorney-client relationship occurred. See People v Bass, 88 Mich App 793, 801-802; 279 NW2d 551 (1979). However, respondent's mere subjective unhappiness with counsel, in the absence of any detailed and concrete basis for suggesting good cause for a substitution of counsel, warrants no further inquiry. See People v McFall, 309 Mich App 377, 382-383; 873 NW2d 112 (2015). A belief that counsel could be better does not establish that counsel is bad. As set forth above, the trial court conducted a thorough inquiry into respondent's expression of discomfort with her appointed counsel. Respondent told the court she wanted "better" counsel and she felt "pressure," but she did not explain why she was not content with her current counsel, nor did she claim that her counsel was ineffective. The record amply establishes that counsel engaged in appropriate efforts to communicate with and represent respondent, only to be effectively thwarted by respondent herself. Respondent is not entitled to substitute counsel because she torpedoed her own defense. We further note that respondent never did follow through on her proposition to retain substitute counsel.
The record shows respondent's counsel prepared for trial and was ready and willing to act on respondent's behalf through his examination of testifying witnesses and his presence at six of the seven hearings that focused specifically on respondent's parental rights. Respondent has not provided a persuasive argument that the trial court was obligated to sua sponte appoint new counsel or make further inquiries into counsel's effectiveness. To the contrary, all objective indications are that counsel was as effective as any attorney could be under the circumstances with a client unwilling to work or communicate with anyone. Therefore, the trial court did not err by curtailing its inquiry into respondent's dissatisfaction with counsel after respondent confirmed that she was comfortable proceeding with the hearing and would retain substitute counsel on her own.
VI. CONCLUSION
The trial court did not violate respondent's due process rights by holding a non-adversarial informational hearing without respondent's attorney or opposing counsel present. The trial court did not err by failing to engage in further inquiries into respondent's discomfort with counsel after respondent confirmed that she was comfortable proceeding with her appointed counsel. Because respondent has not substantively challenged the termination of her parental rights, we have not considered the trial court's findings regarding statutory grounds or best interests.
Affirmed.
/s/ Colleen A. O'Brien
/s/ Amy Ronayne Krause
/s/ Michael F. Gadola