In re Tillman
| Docket Number | 359060 |
| Decision Date | 11 August 2022 |
| Parties | In re R. TILLMAN, Minor. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Livingston Circuit Court Family Division LC No. 16-015319-NA
Before: RIORDAN, P.J., and BORRELLO and LETICA, JJ.
Respondent appeals as of right the order terminating his parental rights to his minor child, RT, under MCL 712A.19b(3)(c)(ii) (failure to rectify other conditions) and (h) (parent is imprisoned for such a period that the child would be deprived of a normal home for more than two years). While raising three issues on appeal, respondent does not challenge whether the evidence supported the statutory grounds for termination or whether termination was in RT's best interests. Finding no prejudicial error in the proceedings below with respect to the issues raised by respondent, we affirm.
When RT was born on March 21, 2018, his mother was legally married to an out-of-state resident, Bradley Ezekiel. RT's mother had been living with, and romantically involved with respondent until her incarceration in February 2018 with the Michigan Department of Corrections.[1]The Department of Health and Human Services (DHHS) filed a petition requesting the removal of RT from the home. The petition noted that Ezekiel was RT's legal father and that he resided in Alabama. The referee ordered that RT be taken into protective custody and placed with DHHS for care and supervision. At the preliminary hearing on the petition, respondent claimed to be RT's biological father. A Children's Protective Services worker said that Ezekiel informed her that he had not seen RT's mother in three years and that he could not be RT's biological father. The referee adjourned the preliminary hearing after granting respondent's motion to intervene and authorizing the filing of a motion to determine that RT was born out of wedlock. At the June 13, 2018 hearing on the motion, the parties stipulated to admission of a DNA test report indicating that there was a 99.9999% probability that respondent is RT's biological father. The trial court entered an order the same day adopting the referee's finding that RT was born out of wedlock and judicially determining respondent to be RT's legal father. At the same hearing, RT's mother admitted certain allegations in the petition, and the referee found statutory grounds to exercise jurisdiction over RT. The referee placed RT with DHHS for care and supervision.
On June 14, 2018, DHHS filed a supplemental petition that identified respondent as RT's father and sought removal of RT. The referee entered an ex parte order removing RT from the home. Respondent subsequently waived probable cause at the preliminary hearing and the referee authorized the petition. The referee found that it was contrary to RT's welfare to remain in the home because of ongoing concerns regarding substance abuse, mental health, and emotional instability that posed a risk of harm to the physical and emotional well-being of RT. On the second day of a bench trial regarding jurisdiction with respect to respondent, respondent was incarcerated in the Livingston County jail. He entered a plea of no contest to paragraph N of an August 10, 2018 amended petition that contained specific allegations related to respondent's continued pattern of criminality, drug use, and instability. The referee accepted respondent's plea and took jurisdiction over RT. In May 2019, respondent was sentenced to prison with an earliest release date of February 14, 2025.
On May 19, 2020, RT was returned to his mother's care. On June 19, 2020, DHHS filed a supplemental petition seeking removal of RT after, among other things, his mother tested positive for fentanyl. The petition sought termination of both RT's mother's and respondent's parental rights. After a termination hearing, the trial court found statutory grounds to terminate respondent's parental rights and found that it was in the best interests of RT that respondent's parental rights be terminated.
Respondent did not raise a due-process argument in the trial court and, therefore, this issue is not preserved. In re VanDalen, 293 Mich.App. 120, 135; 809 N.W.2d 412 (2011). "Whether child protective proceedings complied with a parent's right to procedural due process presents a question of constitutional law, which we review de novo." In re Williams, 333 Mich.App. 172, 178; 958 N.W.2d 629 (2020) (citation and quotation marks omitted). "This Court reviews a trial court's factual determinations for clear error." Id. "Clear error requires that the reviewing court be left with a firm and definite conviction that a mistake has been made." Id. (quotation marks and citation omitted). "Even if an error occurred, this Court will not disturb the trial court's order unless it would be inconsistent with substantial justice to permit the order to stand." Id. (quotation marks and citations omitted).
However, this Court reviews unpreserved claims of error arising out of child protective proceedings for plain error. In re Pederson, 331 Mich.App. 445, 463; 951 N.W.2d 704 (2020). "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." VanDalen, 293 Mich.App. at 135 (quotation marks and citation omitted). An error affects substantial rights when it "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." In re Ferranti, 504 Mich. 1, 29; 934 N.W.2d 610 (2019) (cleaned up).
DHHS, after conducting a preliminary investigation regarding suspected child abuse or neglect, may petition the family division of the circuit court to take jurisdiction over the child. See MCR 3.961(A). That petition must contain, among other things, "[t]he essential facts" that, if proven, would allow the trial court to assume jurisdiction over the child. MCR 3.961(B)(3); see also MCL 712A.2(b). Respondent argues that he was denied due process by DHHS's failure to conduct an investigation before filing the June 14, 2018 supplemental petition. The factual allegations in the June 14, 2018 supplemental petition, however, belie respondent's argument that DHHS failed to conduct an investigation before filing the supplemental petition. The supplemental petition contained specific allegations with respect to respondent. The petition alleged that respondent had previously been added in the ongoing child protective proceedings involving RT's mother's other children and that he had been identified in those proceedings as having barriers to safely co-parenting those children. Respondent had been given the opportunity to drug screen and refused, and he refused to engage and communicate with the foster care worker in that case. Respondent had a history of substance abuse and was receiving methadone treatments, but refused to sign a release so that the foster care worker could obtain his medical history. Respondent lived with his father, who had a known drug problem and criminal history, and the police had conducted a drug raid on the home in 2016. Respondent had a lengthy criminal history which involved convictions of felony possession of controlled substances, breaking and entering, larceny, carrying a concealed weapon, disturbing the peace, operating while license suspended, operating with false identification, and obstruction by disguise. He demonstrated low impulse control, anger, and inappropriate outbursts during RT's mother's child protective proceedings and during proceedings related to this case. All of these facts were alleged in the supplemental petition and show that DHHS conducted a thorough investigation of the case before filing that petition.
Respondent also argues that he was denied due process because DHHS did not make reasonable efforts to prevent removal. Specifically, he contends that DHHS failed to provide an opportunity for respondent to place RT with a member of his family through a power of attorney because the supplemental petition was filed one day after respondent was determined to be RT's legal father. DHHS filed the supplemental petition on June 14, 2018. The preliminary hearing on the petition commenced on June 15, 2018, and was continued to June 28, 2018. The record does not reveal, nor has respondent presented evidence, that he sought to place RT with a member of his family through a power of attorney between the time the supplemental petition was filed on June 14 and when respondent waived probable cause and entered a plea on June 28. Additionally, during the preliminary hearing, counsel for DHHS informed the referee that the foster care worker was already working closely with respondent and his family to investigate the options for relative placement.[2] Defendant has failed to demonstrate any error, much less plain error, with regard to his due-process arguments.
Respondent contends that conditional reversal and remand to the trial court for a conclusive determination of RT's Indian status is necessary because the trial court record does not contain sufficient documentation to demonstrate that the notice requirements of the ICWA, 25 USC 1901 et seq., and the MIFPA, MCL 712B.1 et seq., were satisfied. We disagree.
The application and interpretation of the ICWA and the MIFPA involve questions of law that this Court reviews de novo. In re Morris, 491 Mich. 81, 97; 815 N.W.2d 62 (2012); In re Detmer/Beaudry, 321 Mich.App. 49, 59 910 N.W.2d 318 (2017). This Court reviews the trial court's factual findings for clear error, which occurs if this Court has a definite and firm...
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