In re Mallett/Johnson, Minors

1

In re MALLETT/JOHNSON, Minors.

No. 366518

Court of Appeals of Michigan

December 21, 2023

UNPUBLISHED

Saginaw Circuit Court Family Division LC No. 21-049621-NA

Before: RIORDAN, P.J., and MURRAY and M. J. KELLY, JJ.

PER CURIAM.

Respondent appeals by right the trial court's order terminating her parental rights to the minor children, CAAJ and ALM, pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist) and (j) (reasonable likelihood of harm if returned to parent). On appeal respondent does not challenge whether the evidence supported the statutory grounds for termination or whether termination was in the children's best interests. Instead, respondent contends that her due-process rights were violated on multiple grounds. Discerning no error in the proceedings below with respect to the issues raised by respondent, we affirm.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

On April 9, 2021, the Department of Health and Human Services (DHHS) alleged that respondent had severe substance abuse and mental health issues that affected her parenting ability and that, on two occasions, respondent had repeatedly driven her car into fences and cars while she was highly intoxicated with the children in the backseat. DHHS requested that the trial court remove the children from respondent's care and custody and exercise jurisdiction. The petition was authorized, the children were removed from respondent's care, and respondent was granted supervised parenting time.

On April 19, 2021, a bench trial was conducted to determine whether the court could exercise jurisdiction over the children. At the beginning of the trial, respondent pleaded to jurisdiction pursuant to MCL 712A.2(b)(1) and (b)(2). Respondent admitted that she had a substance abuse problem that negatively impacted her parenting ability. The trial court exercised its jurisdiction, continued respondent's supervised parenting time, and ordered DHHS to engage in reasonable efforts toward reunification. DHHS created a case service plan, which the trial court adopted at the initial disposition hearing on June 4, 2021. Respondent was ordered to participate in and benefit from substance abuse treatment, individual and group therapy, and parenting education. Respondent was also ordered to complete random drug screens, complete a psychological evaluation, and follow all recommendations from the psychological evaluation, including but not limited to attending substance abuse treatment at an inpatient facility.

Respondent's participation in the case service plan was poor. Though she had completed a psychological evaluation, she failed to consistently attend counseling sessions, and she was discharged from several mental health services for failing to attend and noncompliance. Respondent also completed substance abuse treatment at an inpatient facility in June 2021, but she failed to participate in the outpatient treatment program as she was required to do. Respondent also largely failed to complete her random drug screens, and when she did complete drug screens for her caseworkers, she tested positive for substances. Respondent did not consistently attend scheduled visitations with the children. Respondent was incarcerated several times throughout the case, and though she was referred to a specialty court to assist her with her mental health and substance abuse, respondent was subsequently dismissed for failing to attend her mandatory court hearings. DHHS struggled to communicate with respondent because she frequently failed to respond to text messages or answer phone calls from DHHS employees.

On October 7, 2022, DHHS filed a supplemental petition requesting that the trial court terminate respondent's parental rights to the children under MCL 712A.19b(3)(c)(i), (g) (failure to provide proper care and custody), and (j). A termination hearing was held on November 18, 2022. Respondent was present at the hearing and actively participated in it through the assistance of counsel by cross-examining witnesses and presenting her own testimony.

The caseworker testified that termination was in the children's best interests because, while the children and respondent had a bond, respondent had not participated in her services, and, as a result, there was still a concern that the children would be subjected to "continued ongoing neglect" and potential physical harm if returned to respondent. The caseworker stated that, because of respondent's lack of participation in the offered services, there was nothing to show that if the children returned home they would be provided with appropriate shelter, food, water, supervision, education, structure, and medical appointments. The caseworker also noted that, at the time of the termination hearing, CAAJ and ALM were four and three years of age, respectively, and they had spent half their lives in foster care. The caseworker testified that the children were thriving in their foster home, all of the children's needs were being met, and the children referred to their foster mother as "mom." After the close of proofs, the referee stated that he would take the matter "under advisement" and issue a written opinion containing his recommendations after he reviewed the entire record again.

By December 27, 2022, another review hearing was held, and the referee had not yet released a written opinion on his recommendations regarding termination. A temporary substitute referee presided over the hearing, and he acknowledged the original referee's absence:

Before I move on to the exhibits, I'll identify for the record that on or about November 18th of 2022 a hearing on the supplemental petition to terminate parental rights was heard. [Referee Keuvelaar] took that under advisement. [Referee Keuvelaar] is not available, he has not been available since the Wednesday before Thanksgiving. I am not certain if he will be able to return. A recommendation has not been completed regarding that petition and so at this time the court is going to proceed forward with purposes of the review today.

The parties proceeded with the review hearing, and the caseworker reported that respondent had still not made any progress with any of her services and that respondent was largely noncommunicative with DHHS. At the close of proofs, the referee again addressed the termination hearing and the progress of the case going forward:

I am not the regular hearing officer responsible for this case. I did have a chance to review some of the information leading up to today as well as the exhibits entered in the hearing as well as listen to the testimony .... A hearing on a supplemental petition was held on November 18th of 2022. That was taken under advisement and a recommendation has not been presented to [the trial judge] for review and I do not know if there will be one. Based on the information presented today, I will indicate that [respondent] has not made any progress in her case service plan ....

* * *

I understand that this is somewhat unusual for the court not to have resolved the hearing for termination of parental rights before this hearing today, I apologize to everyone on behalf of the court that that matter has not been resolved timely, however I don't think that it is appropriate to start and stop potential parenting time as that decision or another decision regarding that hearing the supplemental petition would be made at some point in the future ....

As I indicated previously a hearing on the supplemental petition will have to be reevaluated. It may be that it is rescheduled or the referee may issue a recommendation in the meantime. I do not know fully what that will be but I'll keep evaluating it on behalf of this case ....

The referee informed the parties that the next review hearing was scheduled for 9:00 a.m. on March 7, 2023, and he reminded them that he was a referee and that his recommendations could be reviewed by the trial judge within seven days of the hearing if a party requested review.

As scheduled, another review hearing was held on March 7, 2023. Respondent failed to appear, but respondent's counsel appeared on respondent's behalf. A new substitute referee presided over the hearing, and he indicated at the start of the hearing that he had "taken over this case" from the original referee because he was no longer available. After conducting the review hearing, the parties addressed the change in referees, and the new referee asked the parties if they were willing to stipulate to his reviewing the prior record and making a decision based upon that information. None of the parties objected. Respondent's counsel stated:

Since my client has made no contact with me [and] hasn't advised me of her address or her phone number where I can contact her I cannot consult with her and get her consent. As an attorney I can say that we all presented all the evidence that we had at that [termination hearing], that my client was present, that she was able to provide-to assist in her own defense in that [termination hearing] and I cannot see any harm that would come to her case from allowing this referee to go back and review the entire record and issue a decision. I would appreciate it if the court would give her a period of time to respond in writing if she objects, but otherwise I can't see as counsel how this would be at all prejudicial to her case. So I would stipulate.

The new referee stated he would "offer a 14 day window for anyone to file an objection," and he indicated that he would review the record and the termination hearing so that he could make an informed decision about the termination of parental rights. The referee then reminded the parties that they had the right to have the trial judge review his findings if they requested...