In re Baham

• Decision Date: 02 April 2020
• Docket Number: No. 349595,349595
• Parties: IN RE B. M. BAHAM, Minor.
• Court: Court of Appeal of Michigan — District of US

331 Mich.App. 737

954 N.W.2d 529

IN RE B. M. BAHAM, Minor.

No. 349595

Court of Appeals of Michigan.

Submitted January 14, 2020, at Grand Rapids.

Decided April 2, 2020, at 9:10 a.m.

Swiderski & Ward PC (by David J. Swiderski) for respondent.

Before: Markey, P.J., and Gleicher and M. J. Kelly, JJ.

M. J. Kelly, J. Respondent appeals as of right the trial court order terminating her parental rights to her minor child, BB, presumably¹ under MCL 712A.19b(3)(h) and MCL 712A.19b(3)(j). On appeal, respondent challenges the trial court's decision to take jurisdiction over BB and its decision to terminate her parental rights. We affirm the trial court's order taking jurisdiction over the child because respondent cannot establish plain error affecting her substantial rights with regard to that decision. We vacate the trial court's termination order, however, because after review of the whole record we are left with a definite and firm conviction that the trial court made a mistake by finding clear and convincing evidence of statutory grounds to terminate respondent's parental rights to BB.

I. BASIC FACTS

In October 2017, respondent and two men entered her father's home. Using a baseball bat, the two men robbed and attacked respondent's father. Respondent and the men left, leaving respondent's father badly beaten. Although respondent did not know it at the time of the armed robbery, her young son was in the home, and as a result of the robbery was left without proper care and custody.² On January 3, 2018, respondent was arrested for the armed robbery of her father. She pleaded guilty, and in May 2018, she was sentenced to 5 to 20 years in prison. Her earliest release date is January 8, 2023.

Respondent did not discover that she was pregnant with BB until after she was incarcerated. Respondent testified that she knew Child Protective Services (CPS) would be involved, and she recounted that before she gave birth she spoke with a pregnancy counselor, who "set up a plan." At the termination hearing, respondent testified that she had three alternative plans for when the child was born: to place the child with her mother, with her brother and sister-in-law, or with a close family friend until respondent was released from prison. Respondent believed that the pregnancy counselor was trying to implement one of the plans, and she believed that the child would be provided with care via a legal guardianship. BB was born in September 2018.

Within days of BB's birth, the Department of Health and Human Services (DHHS) filed a petition seeking temporary custody of BB, alleging that respondent was incarcerated, was unable to physically provide care for BB, and had "not provided an appropriate plan for [BB's] care and supervision." At the time that the petition was filed, BB was at the hospital and no plan for her care had been successfully implemented. At the initial preliminary hearing, a CPS worker informed the court that respondent "would like" BB "to reside with [respondent's] biological brother." And respondent stated that she would not need a lawyer "if we got everything figured out." On further questioning from the court, respondent explained that the plan was for BB to reside with respondent's brother. Thereafter, the child was placed with respondent's brother. No guardianship was put in place, however. On October 9, 2018, respondent entered a plea of admission to the allegations in the petition, and the trial court found that, given respondent's admission, there was a statutory basis under MCL 712A.2(b)(1) to assume jurisdiction of BB.

Respondent was provided with a Parent Agency Treatment Plan, which required her to address her issues with substance abuse, to improve her deficient parenting skills, and to improve her emotional stability.³ At the termination hearing, respondent's caseworker testified that respondent was compliant with her case planning, noting that respondent "actually did a really good job all things considered." Furthermore, respondent testified that she had completed a parenting class and that she was able to incorporate some of the techniques she learned into her weekly parenting-time sessions with BB. Respondent also testified that she was taking GED classes and that she anticipated earning her GED within one month. She was on a waiting list for cosmetology training, which she hoped would permit her to obtain employment shortly after her release from prison. In addition, respondent testified that she was on the waiting list for other services, including an additional parenting class, a program that would allow her to record herself reading a book and to send the recording to her child, and Narcotics Anonymous (NA) classes. Respondent was also participating in a "Moving On" class, which she explained had taught her how to distinguish good relationships from bad relationships. Respondent's Moving On instructor indicated to her that after completing the class, if she did well, she could become eligible for an earlier release from prison.⁴ The caseworker explained that she received documentation showing all the services that respondent had participated in, the services she was on a waiting list for, and the dates of services completed. She also agreed that respondent's testimony regarding her services while incarcerated was "accurate." The caseworker also testified that the prison staff reported that respondent was compliant and had not "gotten into any trouble" or received any tickets since being incarcerated.

Despite respondent's undisputed compliance with the case services plan, on March 27, 2019, the DHHS filed a petition to terminate respondent's parental rights. The petition alleged that termination was proper under MCL 712A.19b(3)(h) and MCL 712A.19b(3)(j). Following a termination hearing, the trial court made a number of factual findings allowing for an inference that it found statutory grounds to terminate respondent's parental rights under MCL 712A.19b(3)(h) and MCL 712A.19b(3)(j), and it found that termination of respondent's parental rights was in BB's best interests.

This appeal follows.

II. JURISDICTION

A. STANDARD OF REVIEW

Respondent argues that the trial court erred by finding grounds to exercise jurisdiction under MCL 712A.2(b)(1). Respondent did not challenge the court's jurisdictional decision until after the court entered an order terminating her parental rights. Accordingly, we review her challenge for plain error affecting her substantial rights. In re Ferranti , 504 Mich. 1, 29, 934 N.W.2d 610 (2019). In order to prevail, respondent "must establish that (1) error occurred; (2) the error was ‘plain,’ i.e., clear or obvious; and (3) the plain error affected [her] substantial rights." Id. "A ‘clear or obvious’ error under the second prong is one that is not ‘subject to reasonable dispute.’ " In re Pederson Minors , 331 Mich. App. 445, 463, 951 N.W.2d 704 (2020) (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 N.W.2d 253 (2008). Moreover, reversal is unwarranted unless the error "seriously affected the fairness, integrity or public reputation of judicial proceedings." Ferranti , 504 Mich. at 29, 934 N.W.2d 610 (quotation marks, citation, and brackets omitted).

B. ANALYSIS

Respondent argues that the trial court erred by assuming jurisdiction over BB because the facts that respondent admitted to are insufficient to support a finding of statutory grounds under MCL 712A.2(b)(1). She has not, however, established that an error occurred, that it was plain, and that it affected her substantial rights. Nor has she offered any analysis as to how the alleged plain error seriously affected the fairness, integrity, or public reputation of the child-protective proceedings.

After authorizing a petition to take jurisdiction over a minor child, the trial court "can exercise jurisdiction [over the child] if a respondent-parent enters a plea of admission or no contest to [the] allegations in the petition ...." Ferranti , 504 Mich. at 15, 934 N.W.2d 610 ; MCR 3.971.⁵ However, before it may do so, the court must find that a statutory basis exists for exercising jurisdiction over a minor in a child-protective proceeding. In re PAP , 247 Mich. App. 148, 152–153, 640 N.W.2d 880 (2001). Thus, even if a respondent enters a plea of admission to all or some of the allegations in the petition, the trial court may not accept that plea "without establishing support for a finding that one or more of the statutory grounds alleged in the petition are true ...." MCR 3.971(D)(2). If the trial court does not establish support for a finding that one or more of the statutory grounds alleged in the petition is true, then the respondent's plea of admission is invalid because it is not an accurate plea. MCR 3.971(D)(2).

The court in this case exercised jurisdiction over BB under MCL 712A.2(b)(1), which provides:

(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county:

(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. [Emphasis added.]

Under this statutory provision, there are a number of alternative grounds for taking jurisdiction. Relevant to this appeal, the trial court specifically stated in its written order of adjudication that it was exercising jurisdiction over BB because there was "a lack of proper custody or guardianship."⁶ The phrase "without proper custody or guardianship" is defined by the statute, which provides that " ‘[w]ithout proper custody...