In re Collier

• Decision Date: 15 March 2016
• Docket Number: Docket No. 328172.
• Citation: 887 N.W.2d 431,314 Mich.App. 558
• Parties: In re COLLIER.
• Court: Court of Appeal of Michigan — District of US

314 Mich.App. 558

887 N.W.2d 431

In re COLLIER.

Docket No. 328172.

Court of Appeals of Michigan.

Submitted March 8, 2016, at Detroit.

Decided March 15, 2016, at 9:00 a.m.

Michael D. Wendling, Prosecuting Attorney, and Hilary B. Georgia, Senior Assistant Prosecuting Attorney, for petitioner.

Brandon R. McNamee PLC, Detroit (by Brandon R. McNamee) for respondent.

Before: TALBOT, C.J., and WILDER and BECKERING, JJ.

PER CURIAM.

Respondent appeals as of right the trial court's order terminating his parental rights to his child, JC. The trial court determined that a statutory basis for termination existed under MCL 712A.19b(3)(c)(i ) (conditions that led to adjudication continue to exist), MCL 712A.19b (3)(g) (failure to provide proper care and custody), and MCL 712A.19b(3)(j) (reasonable likelihood of harm). Because we find that respondent was effectively deprived of an adjudication hearing, we vacate and remand.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

JC is the child of respondent and KR. At the time the proceedings in this case began, KR and respondent shared joint physical and legal custody of JC. On June 21, 2013, JC was removed from KR's care and placed in the custody of respondent. JC was removed from KR's care due in large part to KR's significant substance abuse, including the use of methamphetamine, cocaine, and marijuana, as well as her involvement in manufacturing methamphetamine. She had also failed to provide proper supervision of JC. The trial court ordered that as a condition of respondent's care of JC, the “[m]other shall not have any contact with [JC] outside of visitation arranged by [the Department of Health and Human Services (DHHS) ] and any other contact permitted by [DHHS].” Following a preliminary hearing, a petition filed by DHHS was authorized; KR pleaded no contest to the petition, and the trial court entered an order of adjudication with regard to KR.

On March 13, 2014, JC was removed from respondent's care. DHHS, hereafter petitioner, filed a supplemental petition alleging that despite respondent's being aware of KR's intractable drug problem, he nevertheless continued to allow KR unauthorized and unsupervised contact with JC on multiple occasions. At an April 10, 2014 pretrial hearing, Lesley Clark, KR's attorney, indicated that she would be representing respondent at the adjudication hearing, and that respondent was seeking a bench trial. On April 14, 2014, the court entered an order appointing Clark to serve as respondent's attorney.

On May 14, 2014, the date scheduled for the adjudication hearing, respondent did not appear. Clark stated on the record that since the last hearing, she had given respondent her telephone number and address and asked him to call her and make an appointment to come and see her. She stated that to her knowledge, he had not done so, and thus she did not feel she could adequately represent him. She moved to be “dismissed from the case,” and the hearing referee “thank[ed] and excuse[d]” Clark from representing respondent. Clark did not participate in the remainder of the hearing.

Immediately after excusing Clark, the referee announced that “[t]he Court will enter a default.” Without elaborating on what that meant, the referee indicated that counsel for petitioner could proceed. What followed was testimony from two witnesses, spanning seven pages of transcript. The first witness, Samantha Dixon, testified that she was employed at JC's daycare facility, and thus, she knew JC. Dixon testified that she had seen JC with a woman she “assumed” was her mother, KR.¹ Respondent, whom Dixon also knew, was not with JC and the woman. Dixon described the woman with JC as “skinny” with “dark hair, glasses” and her hair pulled back. The second witness, Child Protective Services worker Andrea Smallenberg, testified that the description Dixon gave was consistent with KR's appearance. Smallenberg also testified that she had spoken to an employee at KR's doctor's office, who indicated that KR had been in the office on March 1, 2014, with a child she believed was JC. Smallenberg testified that after being shown a picture of JC, the employee verified that it was JC she had seen with KR.

Following the testimony, the referee stated on the record that “[b]ased on the evidence presented the Court finds” that “there is a preponderance of the evidence to establish a temporary Wardship pursuant to the statutory grounds in the petition.” The referee indicated that an order to that effect would be entered. A subsequent written order noted that the referee “entered a default against [respondent] for failure to appear and proceeded in a default manner.” The order concluded that “for the reasons stated on the record, or in a written opinion, the Court finds that the minor children [sic] shall remain under the jurisdiction of the Court.”

Although respondent failed to attend the adjudication hearing, the record reveals that he attended subsequent hearings during the dispositional phase, including a permanency planning hearing on May 19, 2014, five days after the date of the adjudication hearing. Respondent did not have counsel present at the May 19, 2014 hearing. Nor does it appear from our review of the record that he had counsel for quite some time. According to the record provided to us, it appears that respondent was without counsel for approximately one year.²

Indeed, the record next contains an order appointing counsel for respondent on April 9, 2015, for a show-cause hearing that took place on April 13, 2015, for the purpose of allowing respondent to show why he should not be held in contempt for violating a no-contact order with KR.³ At the show-cause hearing, foster-care worker Samantha Mullens testified that it appeared there had been contact between respondent and KR after KR's parental rights had been terminated. Mullens's testimony was based on certain text messages between respondent and KR. Mullens testified that one message sent from KR to respondent stated, “Will you let me call [JC] when you get her? I would love to talk to her on the phone so I can tell her I'm going to get her some new shoes and stuff today. lol.” Respondent replied, “I do not have a phone.... I will see if I can take her to my mom's house again.” “ Immediately after that,” Mullens testified, “I received a text message from [respondent] stating, am I allowed to take my [child] to my mom's house[?]” Respondent pleaded guilty to violating the trial court's no-contact order and admitted he had violated the order, explaining that his contact with KR was in part due to a “soft part” he had in his heart for her, and that when he looks at his child, he sees KR in her. He avowed, however, that such contact would not happen again. “I messed up[,] I made a big mistake,” respondent stated. But he assured the court that he had “learned from it.”⁴

Three weeks later, petitioner filed a supplemental petition requesting termination of respondent's parental rights in light of the information that came out at the show-cause hearing. On May 18, 2015, the court appointed counsel for respondent for the impending termination hearing.

At the June 10, 2015 termination hearing, social worker Jessica Leenanegt testified that she worked with respondent through the Family Together Building Solutions (FTBS) Program from October 2014 until February 2015. She testified that respondent was successful in obtaining suitable housing, and he already had employment by the time she became involved with him at FTBS. Leenanegt observed respondent's visits with JC; she testified that he and JC had a positive relationship, a loving bond, and for the most part, he demonstrated good parenting skills. At the beginning of Leenanegt's contact with respondent, respondent and KR were doing their supervised parenting visits together, but once the petition was filed to terminate KR's parental rights, respondent took over visits by himself and he was advised not to have contact with KR. Leenanegt worked with respondent on understanding the difference between healthy and unhealthy relationships, and they talked about how a relationship with KR would be unhealthy because her substance abuse could be dangerous to JC. Respondent assured her that he was not having contact with KR. Although Leenanegt believed she had successfully closed respondent's case in February, she agreed that if he had in fact been having contact with KR, she would say he was not successful in the program with regard to the healthy-relationships aspect of the program.

Mullens testified regarding her observations of respondent over the previous year. She noted that respondent had successfully obtained suitable housing, and he had a legal source of income. He had been having supervised parenting visits together with KR in accordance with his permanency plan until a petition was filed in December 2014 seeking termination of KR's parental rights. At that time, KR's visits ceased. Respondent's visits with JC were changed to unsupervised as of January 2015 “due to the progress that he was making.” Mullens testified that respondent engaged well with JC and that they had “a really great bond.” However, Mullens discovered that respondent and KR had been in contact between February and “mid-March,” after KR's parental rights had been terminated. Mullens testified that KR had provided her with text messages documenting this contact. There were allusions to drug use by respondent and KR in the messages. Mullens testified that at one point respondent had accumulated so many negative drug screens that petitioner stopped requiring the tests. But after the text messages implied that he was using, he was tested again and had two positive tests and two missed tests. Mullens summed it up by saying that respondent had been doing “ very well,” and he was “one hundred percent compliant,” but “then in the last month or two it really went downhill.”

Respondent acknowledged that he had used marijuana and stated he “had a...