Vasquez, In re

• Decision Date: 05 April 1993
• Docket Number: Docket No. 146811
• Citation: 199 Mich.App. 44,501 N.W.2d 231
• Parties: In re VASQUEZ. In the Matter of Linda VASQUEZ, Adam Vasquez, Carrie Vasquez and Sissy Vasquez, Minors. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Sylvester VASQUEZ, Respondent-Appellant, and Aurora Vasquez, Respondent.
• Court: Court of Appeal of Michigan — District of US

Page 231

501 N.W.2d 231

199 Mich.App. 44

In re VASQUEZ.

In the Matter of Linda VASQUEZ, Adam Vasquez, Carrie Vasquez

and Sissy Vasquez, Minors.

DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Sylvester VASQUEZ, Respondent-Appellant, and Aurora Vasquez, Respondent.

Docket No. 146811.

Court of Appeals of Michigan.

Submitted Jan. 12, 1993, at Detroit.

Decided April 5, 1993, at 9:00 a.m.

Released for Publication June 24, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Larry W. Lewis, Asst. Atty. Gen., Detroit, for Dept. of Social Services.

Ilsa Draznin, Detroit, for minor children.

Ronald Giles, Detroit, for Sylvester Vasquez.

Before RICHARD ALLEN GRIFFIN, P.J., and SHEPHERD and FITZGERALD, JJ.

SHEPHERD, Judge.

Respondent Sylvester Vasquez appeals as of right from an order of the Wayne County Probate Court terminating his parental rights ¹ to four of his minor children pursuant to M.C.L. § 712A.19b(3)(a)(ii), (b)(i), (c)(i), (g), (h), and (i); M.S.A. § 27.3178(598.19b)(3)(a)(ii), (b)(i), (c)(i), (g), (h), and (i) (desertion, physical and sexual abuse, no reasonable likelihood that conditions leading to adjudication will be rectified within a reasonable time, failure to provide proper care and custody, imprisonment exceeding two years, parental rights to other siblings of the children terminated because of chronic neglect or abuse and the failure of prior rehabilitative attempts). We affirm.

Respondent argues that he was denied due process and equal protection when the probate court failed to secure his presence at the termination hearing. At the time of the hearing, respondent was incarcerated in Texas, serving an eight-year sentence for his plea-based conviction of second-degree sexual assault for sexually abusing the oldest daughter involved in this petition.

In In re Brock, 193 Mich.App. 652, 660-661, 485 N.W.2d 110 (1992), lv. gtd. 440 Mich. 873, 486 N.W.2d 750 (1992), this Court noted that

Michigan courts have accorded great respect for parental rights. This Court has determined that due process requirements "are much greater" in termination cases than in ordinary civil actions and that such requirements include the parent's right to be represented at the dispositional hearing. In re Render, 145 Mich App 344, 348-350; 377 NW2d 421 (1985). In Render, we applied the balancing test set forth in Matthews [sic] v Eldridge, 424 US 319, 335; 96 SCt 893 ; 47 LEd2d 18 (1976), and applied in the termination context in Santosky v Kramer, 455 US 745, 754-756; 102 SCt 1388 [1395-1396]; 71 LEd2d 599 (1982). In particular, we balanced the private interest at stake, the incremental risk of an erroneous deprivation thereof in the absence of the procedure demanded, and the government's interest in avoiding the burden the procedure would carry. Render, supra, pp 348-349 .

In Render, this Court decided that due process required the probate court to make efforts beyond mere notice to secure the presence of the incarcerated respondent at her termination hearing. In Render, the parent was in a county jail when she was served with notice of the hearing. The probate court failed to secure her presence at the hearing and directed the prosecutor to proceed with his proofs in her absence, even though the respondent's attorney claimed that he had only learned of her incarceration on the day of the trial. Applying the three-part balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), this Court stated:

As noted above, the respondent's interest in her parental rights is a compelling one. The risk of an erroneous deprivation is increased in the parent's absence. The Legislature has recognized this by requiring the parent's presence at the hearing. MCL 712A.19 [M.S.A. § 27.3178(598.19) ]. Though respondent had an attorney at the dispositional hearing, it is impossible to determine whether she could have provided the attorney with information helpful to her defense. We are "not in a position to know whether in fact any prejudice resulted." Florence [v. Moors Concrete Products, Inc., 35 Mich.App. 613, 621, 193 N.W.2d 72 (1971) ]. It cannot be doubted that, in many parental rights termination hearings, the presence of the very person whose rights the state aims to take away is of some "probable value" to the correctness of the result. Mathews, supra. The burden on the state is not a substantial one, at least not in the present case, where it appears the respondent was incarcerated in the county jail. [Render, supra, 145 Mich.App. p. 349, 377 N.W.2d 421.]

Contrary to respondent's contention, the case at bar is distinguishable from Render and does not involve a violation of respondent's right to due process. Although respondent's interest in his parental rights is a compelling one, the risk of an erroneous deprivation was not increased by his absence at the hearing. Unlike Render, where it was impossible to know whether the respondent could have provided information useful for her defense, we are convinced that respondent's presence at the side of his counsel would have changed nothing. Here, respondent was well represented by his counsel at the termination hearing, and thus no prejudice resulted from his absence. Further, we believe that the financial and administrative burden on the state in order to bring respondent from Texas to attend the hearing would have been far greater than in Render, where the parent was incarcerated in a county jail in Michigan.

Moreover, contrary to what Render seems to say, we do not believe that an incarcerated parent is entitled as a matter of absolute right to be present at the dispositional hearing of a proceeding to terminate parental rights. See In re Montgomery, 185 Mich.App. 341, 343, 460 N.W.2d 610 (1990), where this Court stated that a respondent is entitled to be present at the termination hearing. ²

In light of present-day telecommunications, other means that fall short of securing the physical presence of a parent are available to ensure that an incarcerated prisoner receives due process at a dispositional hearing. Had respondent wanted to provide evidence concerning his fitness and efforts to provide a fit home for his children, he could have been deposed by telephone or by videotape. Although respondent had the right to be deposed, he made no request. Even during the hearing, respondent's attorney could have conferred with his client by telephone concerning the progress of the case in order to allow respondent to assist his counsel in his defense. The availability of such means of communication militates against securing the physical presence of an incarcerated parent at a dispositional hearing as a matter of due process.

We note that since Render, the Legislature has amended M.C.L. § 712A.19; M.S.A. § 27.3178(598.19), which no longer requires that parents appear before the probate court at a dispositional hearing. M.C.L. § 712A.19(4)(b); M.S.A. § 27.3178(598.19)(4)(b) now only requires that parents be served with notice of the hearing. Further, pursuant to MCR 5.973(A)(3)(b), a parent has the right to be present at a termination hearing or may appear through legal counsel. The court rule does not require that the probate court secure the physical presence of a parent, but only implies that the probate court shall not deny a parent's right to be present at the hearing.

Because there is no absolute right to be physically present at the dispositional hearing of a proceeding to terminate parental rights in Michigan, respondent's equal protection argument under both the United States and Michigan Constitutions, U.S. Const., Am. XIV; Const. 1963, art. 1, § 2, also fails. There is no disparity in treatment between parents incarcerated in the state and those incarcerated outside the state because due process does not necessarily require a probate court to secure the presence of a parent incarcerated in the state at a termination hearing.

What due process requires is the application of the three-part balancing test set forth in Mathews. It is this test that determines whether a probate court has to secure the physical presence of an incarcerated parent at a termination hearing. Where, as in Render, the balancing test weighs in favor of the physical presence of an incarcerated parent at the hearing, the probate court must secure the parent's presence at the termination hearing. Where, as in this case, the balancing test weighs against the incarcerated parent, there is no such requirement. Thus, it is the Mathews balancing test that is critical in determining whether the probate court must secure the physical presence of an incarcerated parent at a termination hearing as a matter of due process. To hold otherwise would be to say that there is never a requirement of producing incarcerated parents at trial even if they are in a nearby jail and the court finds that their...