In re Mauk

1

In re G. MAUK, Minor. In re M. HALL, Minor.

Nos. 363245, 363246, 363247

Court of Appeals of Michigan

December 28, 2023

UNPUBLISHED

Iosco Circuit Court Family Division LC Nos. 21-000811-NA 21-000810-NA

Before: FEENEY, P.J., and RICK and HOOD, JJ.

PER CURIAM.

In these consolidated appeals,^[1] respondent-father appeals as of right the trial court orders terminating his parental rights to the minor children, GM and MH, under MCL 712A.19b(3)(k)(ii) (parent abused the child or a sibling of the child and the abuse included criminal sexual conduct involving penetration); MCL 712A.19b(3)(k)(ix) (parent sexually abused a child or a sibling of the child); and MCL 712A.19b(3)(m)(i) (parent convicted of first-degree criminal sexual conduct (CSC-I)). Respondent-mother appeals as of right the trial court order terminating her parental rights to the minor child, MH, under MCL 712A.19b(3)(a)(ii) (parent has deserted the child for 91 or more days) and MCL 712A.19b(3)(c)(i) (conditions that led to the adjudication continue to exist). Because the trial court did not properly conduct an adjudication hearing in this case, we vacate the orders terminating the parties' parental rights and remand for further proceedings.

I. FACTUAL BACKGROUND

An initial petition for termination of parental rights was filed in this case following MH's confession that father sexually abused her over a period of two years. The petition alleged that mother failed to protect MH from father's sexual abuse, and requested the termination of mother's and father's parental rights. Upon review of the petition, the trial court gave father the opportunity to challenge the criminal charges against him arising out of MH's claims of abuse, as he had not yet been criminally convicted of the alleged abuse. The trial court further ruled that mother's parental rights should not be terminated immediately, noting that she only had supervised visitation rights with MH when the abuse occurred. Consequently, the court believed that mother was not in a position to protect MH from father's abuse. The trial court took temporary jurisdiction over the children pursuant to MCL 712A.2(b), and it continued that temporary jurisdiction in subsequent orders.

Petitioner the Department of Health and Human Services (DHHS), filed an amended petition in November 2021 alleging that mother deserted MH. Father was subsequently convicted of 13 counts of CSC-I for his assaults on MH. During that time, petitioner was unable to serve mother with a copy of the amended petition. In June 2022, the DHHS filed a second amended petition that reiterated the allegations against mother and included evidence of father's convictions. Petitioner was again unable to serve mother with a copy of the petition, and thus the trial court allowed petitioner to serve her with notice via publication. Thereafter, in the proceeding described below, mother and father stipulated to facts that would establish grounds for termination, and, following a combined adjudication and termination hearing, the trial court ruled that termination of their parental rights was in the children's best interests. This appeal followed.

II. ANALYSIS

Mother argues that her plea to the trial court's jurisdiction at the combined adjudication and termination hearing was invalid because the trial court failed to advise her of her rights under MCR 3.971(B) and because the court otherwise failed to properly assume jurisdiction over the children. We agree, and find that the orders terminating both mother's and father's parental rights must be vacated.

We review de novo as a question of constitutional law whether a child protective proceeding afforded a parent's right to due process. In re Rood, 483 Mich. 73, 91; 763 N.W.2d 587 (2009). We also review de novo whether the trial court properly selected, interpreted, and applied the relevant statutes and court rules. In re Sanders, 495 Mich. 394, 404; 852 N.W.2d 524 (2014).^[2] As an initial matter, mother argues that she was not given adequate notice of the second amended petition. Notice of the petition was given by publication because mother could not be located for a lengthy period during the termination proceedings below. Mother claims that publication was never established by affidavit, and that consequently, service by publication never occurred. She further argues that as a result, she had no knowledge of the contents of the amended petition.

A review of the record and relevant law belies mother's claim on this point. It is true that the parent of a child who is the subject of a child protective proceeding is entitled to personal service of a summons and notice of the proceedings. MCL 712A.12, MCR 3.920(B), and MCR 3.921(B); see also In re Dearmon, 303 Mich.App. 684, 693; 847 N.W.2d 514 (2014). However, pursuant to MCR 3.920(B)(4)(b),

If the court finds, on the basis of testimony or a motion and affidavit, that personal service of the summons is impracticable or cannot be achieved, the court may by ex parte order direct that it be served in any manner reasonably calculated to give notice of the proceedings and an opportunity to be heard, including publication.

The record indicates that the DHHS was unable to personally serve mother with the second amended petition because she refused to communicate with the DHHS. Additionally, mother apparently moved several times during this period. Further, although mother signed for at least one certified letter during the proceedings, she otherwise evaded service, and her whereabouts were at times completely unknown. The DHHS filed an affidavit outlining its efforts to locate and serve mother. The affidavit lists at least 12 attempts to personally serve her with the petition. The trial court ultimately authorized an ex parte motion to allow the DHHS to serve mother by publication. To that end, mother claims that the DHHS never filed an affidavit that conformed with MCR 2.106(G). The court rule provides that service by publication may be proven as follows:

(1) Publication must be proven by an affidavit of the publisher or the publisher's agent

(a) stating facts establishing the qualification of the newspaper in which the order was published,

(b) setting out a copy of the published order, and

(c) stating the dates on which it was published.

Contrary to mother's assertion, a copy of a notarized affidavit of publication is contained in the record. It includes the signature of the publisher's agent, her assertion that the Jackson Citizen Patriot is a public newspaper with general circulation in Jackson County, the nine dates on which the notice was published, and the full text of the notice. Thus, we conclude that notice was properly given in this case.^[3] Mother's claim that she had no knowledge of the contents of the amended petition therefore lacks merit.

However, we agree with mother that the trial court failed to properly conduct an adjudication hearing in this case, and that remand is therefore necessary. In In re Yarbrough, 314 Mich.App. 111, 122; 885 N.W.2d 878 (2016), this Court stated:

Parents possess a fundamental interest in the companionship, custody, care, and management of their children, an element of liberty protected by the due process provisions in the federal and state constitutions. U.S. Const, Am XIV; 1963 Const, art 1, § 17. Because child protective proceedings implicate "an interest far more precious than any property right," Santosky v Kramer, 455 U.S. 745, 758-759; 102 S.Ct 1388; 71 L.Ed.2d 599 (1982), "to satisfy constitutional due process standards, the state must provide the parents with fundamentally fair procedures." Hunter v Hunter, 484 Mich. 247, 257; 771 N.W.2d 694 (2009) (quotation marks and citation omitted).

However, "[a] parent's right to control the custody and care of her children is not absolute, as the state has a legitimate interest in protecting 'the moral, emotional, mental, and physical welfare of the minor' and in some circumstances 'neglectful parents may be separated from their children.'" In re Sanders, 495 Mich. at 409-410, quoting Stanley v Illinois, 405 U.S. 645, 652; 92 S.Ct. 1208; 31 L.Ed.2d 551 (1972). For that reason, although a parent is entitled to a hearing before their children are removed from their custody, once a court assumes jurisdiction over the children, the state's interest in protecting the children prevails over the parent's constitutional rights. In re Sanders, 495 Mich. at 406.

Mother argues that the trial court held a combined adjudication and termination proceeding that did not properly differentiate between the adjudicatory and dispositional phases. Mother further contends the court failed to advise her of her rights under MCR 3.971. Relatedly, she argues that her stipulation to certain facts at the combined hearing did not constitute a plea of admission to confer jurisdiction on the trial court. We agree.

As this Court explained in In re Thompson, 318 Mich.App. 375, 378; 897 N.W.2d 758 (2016):

"Child protective proceedings have long been divided into two distinct phases: the adjudicative phase and the dispositional phase." In re AMAC, 269 Mich.App. 533, 536; 711 N.W.2d 426 (2006). During the adjudicative phase, the court considers the propriety of taking jurisdiction over the subject child. In re Sanders, 495 Mich. 394, 404; 852 N.W.2d 524 (2014). This can be done in two ways. First, a parent may plead to the allegations in a jurisdictional petition, thereby bringing the child under the court's protection. MCR 3.971; Sanders, 495 Mich. at 405; AMAC, 269 Mich.App. at 536. Second, the parent may demand a trial (bench or jury) to contest the allegations. MCR 3.972; Sanders, 495 Mich. at 405; AMAC, 269 Mich.App. at 536.

"The adjudication divests the parent of her...