In re Bourbeau

In re BOURBEAU, Minors.

No. 356222

Court of Appeals of Michigan

October 14, 2021

UNPUBLISHED

Oakland Circuit Court Family Division LC No. 2015-832568-NA

Before: Swartzle, P.J., and Cavanagh and Gadola, JJ.

PER CURIAM

Respondent-father ("respondent")^[1] appeals by delayed leave granted^[2] an order terminating his parental rights to the minor children, AJB and CMB (sometimes referred to collectively as "the boys" or "the children"), pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist) and (j) (reasonable likelihood of harm).^[3] We affirm.

Respondent and MB are the parents of AJB and CMB. In 2015, petitioner the Department of Health and Human Services ("petitioner" or "the DHHS"), filed petitions seeking jurisdiction over each child. As relevant here, it was alleged that respondent and MB had engaged in incidents of domestic violence in the presence of AJB, that respondent had verbally and physically abused AJB, and that there had been inadequate supervision of CMB that led to injuries to CMB. Respondent and MB each pleaded no contest to the allegations in the petitions, and the trial court accepted the pleas. The trial court entered orders of adjudication finding that there were statutory grounds to exercise jurisdiction with respect to each child. An initial dispositional hearing was held, and the case service plan for respondent was that he find and maintain appropriate housing continue to provide a legal source of income, continue with supervised visitation of the children, and follow the recommendations of a psychological evaluation, which included that he attend anger-management therapy, continue attending individual therapy, and participate in drug and alcohol screening upon request. On October 5, 2015, the trial court entered an initial order of disposition that adopted the respective case service plans for respondent and MB.

After a series of review hearings at which the DHHS worker reported that respondent and MB were not making sufficient progress on their respective case service plans, the DHHS filed, on October 28, 2016, the first supplemental petition to terminate the parental rights of respondent and MB with respect to both children. It was alleged that respondent had failed to obtain suitable housing for the children, failed to complete and benefit from anger-management therapy, failed to follow his therapist's suggestion to see a forensic psychologist for further assessment, failed to submit to drug screens, and failed to benefit from a parenting program. The termination hearing on the first supplemental petition was held over several dates from January 2017 through October 2017. During this hearing, MB pleaded no contest to the existence of statutory grounds for termination of her parental rights with respect to both children and stipulated that it was in the best interests of the children to terminate her parental rights. The trial court accepted MB's plea and terminated her parental rights to the children. After the termination hearing, the trial court found, on November 27, 2017, that statutory grounds existed to terminate respondent's parental rights under MCL 712A.19b(3)(j) but that termination of respondent's parental rights was not in the children's best interests and the court thus denied the first supplemental petition to terminate respondent's parental rights.

Dispositional review hearings for respondent then resumed. At a February 12, 2019 review hearing, the assigned foster-care worker, Jefferson Bach, stated that there had been multiple Child Protective Services ("CPS") reports of physical abuse or neglect, as well as inappropriate conversations, on the part of respondent during his parenting time with the children in late 2018 and early 2019; this was parenting time that was either unsupervised or supervised by respondent's designee rather than by the DHHS. The DHHS had concerns regarding the safety and wellbeing of the children. Given how long the case had been pending, new concerns about respondent, and his need for further progress on his mental health and parenting skills, the DHHS was planning to file a second supplemental petition for termination of respondent's parental rights.

On May 22, 2019, the DHHS filed a second supplemental petition to terminate respondent's parental rights. The DHHS stated that, on February 28, 2018, respondent had signed an updated case service plan, which required him to: complete and benefit from parent-education services; attend weekly parenting-time visits; participate in and benefit from anger-management therapy through individual therapy services; and continue to provide verification of his employment and housing. Respondent did not benefit from the case service plan with respect to parent-education services, weekly parenting-time visits, and anger-management therapy. Although respondent had completed three parent-education programs, he had not benefited from this service because he continued to use physical discipline and to lose his temper during his parenting time that was either unsupervised or supervised by a designee. Both children had reported physical abuse on the part of respondent in early 2019. Respondent showed minimal benefit from anger-management therapy and posed a continued risk of harm to the children. The children had been in foster care for almost four years, and respondent had failed to rectify the conditions that led to the adjudication. The DHHS sought termination of respondent's parental rights to the children under MCL 712A.19b(3)(c)(i), (g), and (j).

The termination hearing on the second supplemental termination petition was held over 20 dates from August 6, 2019 to February 26, 2020. On November 30, 2020, the trial court issued an 85-page written opinion finding by clear and convincing evidence that termination of respondent's parental rights was warranted under MCL 712A.19b(3)(c)(i) and (j). The court further found by a preponderance of the evidence that termination of respondent's parental rights was in the best interests of both children. A separate order terminating respondent's parental rights to both children was entered on December 2, 2020. Respondent filed an untimely claim of appeal, which this Court treated as a delayed application for leave to appeal. In re Bourbeau Minors, unpublished order of the Court of Appeals, entered February 10, 2021 (Docket No. 356222). This Court later granted the delayed application for leave to appeal. In re Bourbeau Minors, unpublished order of the Court of Appeals, entered April 30, 2021 (Docket No. 356222).

Respondent first argues on appeal that the trial court committed an error requiring reversal and violated his constitutional right to due process because the order terminating respondent's parental rights was not issued in a timely manner. Respondent's argument is unavailing.

In general, an issue must be raised in or decided by the trial court in order to be preserved for appellate review. Glasker-Davis v Auvenshine, 333 Mich.App. 222, 227-228; ___N.W.2d ___(2020). Also, to preserve a constitutional claim, a party must object on that ground below. In re TK, 306 Mich.App. 698, 703; 859 N.W.2d 208 (2014). Respondent did not raise this issue below.^[4]Moreover, although the trial court provided explanations for the delay in issuing its written opinion, this was not done in the context of addressing an alleged violation of MCR 3.977(I)(1) or a claimed violation of respondent's constitutional rights. Therefore, the issue is unpreserved.

Review of an unpreserved issue is for plain error affecting substantial rights. In re Utrera, 281 Mich.App. 1, 8; 761 N.W.2d 253 (2008). To obtain relief, respondent must show that an error occurred, that it was clear or obvious, and that the error affected his substantial rights. In re VanDalen, 293 Mich.App. 120, 135; 809 N.W.2d 412 (2011). Generally, an error affects substantial rights if it is prejudicial, i.e., it affected the outcome of the case. In re Utrera, 281 Mich.App. at 9.

MCL 712A.19b(1) states, in part, that "[t]he court shall issue an opinion or order regarding a petition for termination of parental rights within 70 days after the commencement of the initial hearing on the petition. The court's failure to issue an opinion within 70 days does not dismiss the petition." MCR 3.977(I)(1) provides, in relevant part, "If the court does not issue a decision on the record following hearing, it shall file its decision with 28 days after the taking of final proofs, but no later than 70 days after the commencement of the hearing to terminate parental rights."

It is undisputed that the trial court's decision in this case was untimely under MCL 712A.19b(1) and MCR 3.977(I)(1). However, the trial court's failure to issue its opinion and order in a timely manner does not entitle respondent to reversal of the order terminating his parental rights. "MCR 3.902(A) provides that MCR 2.613 governs limitations on the correction of errors in proceedings involving juveniles." In re Utrera, 281 Mich.App. at 14. MCR 2.613(A) provides:

An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.

MCL 712A.19b(1) expressly states that "[t]he court's failure to issue an opinion within 70 days does not dismiss the petition." Moreover, this Court has held that a trial court's violation of the time limits set forth in the court rule does not require dismissal. In re TC, 251 Mich.App....