In re Cerna

1

In re CERNA/FRY/HAYWORTH, Minors.

No. 359343

Court of Appeals of Michigan

June 16, 2022

UNPUBLISHED

Kalamazoo Circuit Court Family Division LC No. 2019-000366-NA

Before: Borrello, P.J., and Jansen and Murray, JJ.

PER CURIAM

Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor children pursuant to MCL 712A.19b(3)(b)(i) (parent caused physical injury and further injury likely to occur if returned) (3)(b)(ii) (parent could have prevented physical injury and further injury likely to occur if returned) (3)(k) (physical abuse), (3)(g) (failure to provide proper care and custody), and (3)(j) (likelihood of harm if returned to the parent). On appeal, mother argues that she was denied her right to a fair and impartial termination hearing as the result of judicial bias. This unpreserved argument has no valid legal or factual basis, so we affirm.

The sole argument mother raises on appeal is that she was denied her right to a fair and impartial termination hearing as the result of judicial bias. Despite raising this single issue her brief on appeal contains a citation to only one decision, Herman v Chrysler Corp, 106 Mich.App. 709; 308 N.W.2d 616 (1981), for the proposition that "due process" principles require that case be presided over by an objective fact finder. True enough, but given the argument, curiously absent from mother's brief is citation to any binding authority on under what circumstances that may occur, and what the governing standards are in making such a decision. See, e.g., Cain v Department of Corrections, 451 Mich. 470; 548 N.W.2d 210 (1996). For this reason alone, mother's appeal is without merit. Mudge v Macomb Co, 458 Mich. 87, 105; 580 N.W.2d 845 (1998)("It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position. The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow."). In any event, the arguments mother does make do not establish any due process concerns.

"The question whether judicial misconduct denied defendant a fair trial is a question of constitutional law that this Court reviews de novo." People v Stevens, 498 Mich. 162, 168; 869 N.W.2d 233 (2015). However, because mother failed to raise this claim at any point during the trial court proceedings, this claim is unpreserved. In re Killich, 319 Mich.App. 331, 336; 900 N.W.2d 692 (2017). This Court reviews "unpreserved claims under the plain-error rule." In re Beers, 325 Mich.App. 653, 677; 926 N.W.2d 832 (2018).

A party "claiming judicial bias must overcome a heavy presumption of judicial impartiality." People v Jackson, 292 Mich.App. 583, 598; 808 N.W.2d 541 (2011) (quotation marks and citation omitted). MCR 2.003(C)(1) outlines circumstances that warrant judicial disqualification, but mother has not argued that any apply to these circumstances. Also hampering her arguments is the well-settled rule that,

opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. [Liteky v United States, 510 U.S. 540, 555; 114 S.Ct. 1147; 127 L.Ed.2d 474 (1994).]

At the outset, as the DHHS points out, mother's assertion that the trial court improperly questioned a caseworker in regard to statements contained in the police reports is not supported by the record. At the July 24, 2020, hearing, the trial court adjourned the review hearing but considered mother's motion to reinstate parenting time. At this point, the prosecutor, who was representing the DHHS, asked the caseworker about her opinion concerning parenting time in light of the allegations in the petition and statements in the police reports. Contrary to mother's position on appeal, this exchange did not involve questioning by the court.

At the next hearing, a permanency planning hearing, which was held on August 20, 2020, the trial court asked the caseworker whether the police reports had been provided to mother's counselor. The caseworker indicated that this was not general practice because the counselor received the psychological evaluation, and the psychologist who prepared the evaluation had reviewed...