In re Smith-Taylor

339 Mich.App. 189

981 N.W.2d 511

IN RE SMITH-TAYLOR, Minors.

No. 356585

Court of Appeals of Michigan.

Submitted September 15, 2021, at Detroit.

Decided October 14, 2021, 9:00 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Brittany L. Gitau, Assistant Attorney General, for the Department of Health and Human Services.

Thomas A. Casey for respondent.

Before: Cavanagh, P.J., and K. F. Kelly and Redford, JJ.

K. F. Kelly, J. Respondent appeals as of right the order terminating her parental rights to her children, DL, DE, and DS under MCL 712A.19b(3)(g) and (j). Respondent's children were removed from her care following an incident of domestic violence with the children's father and respondent's mental health episode that required police assistance. While respondent was receiving mental health treatment, the children were in the care of their father, and DE sustained serious injuries. Ultimately, a petition was filed seeking termination of respondent's parental rights, and a case service plan was not prepared for respondent in light of aggravated circumstances, MCL 712A.19a(2)(a). On appeal, respondent submitted that aggravated circumstances did not apply to her because she did not personally commit the abuse and she was not present for the abuse. However, respondent allowed the father to reside with the children, and he committed severe physical abuse upon DE, MCL 722.638(1)(a)(iii ). Further, respondent subjected her children to an unreasonable risk of harm by her failure to eliminate the possible abuse of the children in light of her knowledge that the father's parental rights to other children had been terminated, MCL 722.638(2). MCL 722.638(2) does not limit the request for termination of parental rights at the initial dispositional hearing without the provision for services to the suspected perpetrator of abuse, but also applies to a parent suspected of placing the child at an unreasonable risk of harm by failing to take reasonable steps to eliminate the risk. Finding no errors warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

On December 11, 2019, petitioner, the Department of Health and Human Services (DHHS), requested temporary custody of DL and DE in regard to respondent, but DHHS requested that the parental rights of the children's father be terminated. At the time this petition was filed, DS was not yet born. The petition alleged that it was contrary to the welfare of the children to be in their parents’ care because of physical abuse, unstable mental health, and threatened harm. It was asserted that, on October 30, 2019, Children's Protective Services (CPS) received a complaint indicating that respondent had been exhibiting erratic behaviors. Specifically, on October 26, 2019, respondent smoked marijuana and then threatened the children's father with a knife. Authorities were called, and respondent was transferred to Kingswood Hospital by ambulance, but she ran away from the ambulance once it arrived at the hospital. On October 30, 2019, respondent was found incoherent on the freeway with DE in the backseat of her car. As a result, she was admitted to Stonecrest Hospital from October 30, 2019 to November 19, 2019, and while there, she was diagnosed with bipolar disorder. On November 6, 2019, respondent was still hospitalized when DE was admitted to the Children's Hospital with severe injuries, including a skull fracture, subdural hematoma, and liver lacerations. DL also had injuries, including bruising on her face, leg, and abdomen. The children were injured while in the care of their father. He denied knowing the cause of DE's severe injuries. Later, he proffered that DE suffered the injuries in a fall from a couch, an explanation rejected by treating physicians. At the time that the children's father became their safety plan, the protective services worker was unaware that the father had his parental rights terminated to other children that he shared with a different mother.¹ However, respondent knew of the prior terminations of the father's parental rights.

On January 21, 2020, DHHS filed an amended petition to terminate respondent's parental rights at the initial disposition on the basis of a history of mental illness as well as respondent's own statements that she would not separate from the children's father. The court authorized the petition. On February 27, 2020, respondent and the father pleaded no contest to certain allegations stipulated to by the parties. The court assumed jurisdiction over DL and DE. Over the next several months, the court held termination hearings. Prior to terminating respondent's parental rights, respondent gave birth to DS in August 2020, her third child with the father. During her pregnancy, respondent declined to take medication for her mental condition, yet DS was born with the active ingredient for marijuana in her system.² DHHS filed a petition to terminate the parental rights of respondent and the father to DS, and the court authorized the petition. Although a case service plan was not executed because of aggravated circumstances, respondent did submit to a mental health evaluation, was prescribed medications, and was allowed to participate in visitation with the children. However, it was reported that respondent was combative with her children's caregivers and the CPS workers and had police contacts as a result. On December 2, 2020, during a combined adjudicative and dispositional hearing, respondent and the father pleaded no contest to allow the court to assume jurisdiction of DS. Thereafter, the court continued the termination hearing in regard to all three children and ultimately terminated respondent's parental rights on February 26, 2021. Respondent now appeals.³

II. COMBINING THE ADJUDICATIVE AND INITIAL DISPOSITIONAL HEARINGS

Respondent alleges that the trial court erred by combining the adjudication phase and the dispositional hearing. We disagree.

Respondent did not object to the trial court allegedly combining the adjudicative hearing and the dispositional hearing. Therefore, this issue is not preserved for appellate review. See In re Mota , 334 Mich.App. 300, 311, 964 N.W.2d 881 (2020).

"[F]amily division procedure under the court rules ... [is] reviewed de novo." Id. (citation and quotation marks omitted). However, unpreserved claims are reviewed for plain error affecting substantial rights. In re Utrera , 281 Mich.App. 1, 8, 761 N.W.2d 253 (2008). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." In re VanDalen , 293 Mich.App. 120, 135, 809 N.W.2d 412 (2011) (quotation marks and citations omitted). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera , 281 Mich.App. at 9, 761 N.W.2d 253.

"Child protective proceedings are governed by the juvenile code, MCL 712A.1 et seq. , and Subchapter 3.900 of the Michigan Court Rules." In re Ferranti , 504 Mich. 1, 14, 934 N.W.2d 610 (2019). "The DHHS, following an investigation, may petition a court to take jurisdiction over a child." In re Mota , 334 Mich.App. at 312, 964 N.W.2d 881. "The petition must contain essential facts that if proven would permit the court to assume and exercise jurisdiction over the child." Id. "If a petition is authorized, the adjudication phase of the proceedings takes place, and the question at adjudication is whether the court can exercise jurisdiction over the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders, including an order terminating parental rights." Id.

"If a trial is held regarding adjudication, the respondent is entitled to a determination of the facts by the jury or judge; the rules of evidence apply, and the burden of proof is a preponderance of the evidence." Id. at 312-313, 964 N.W.2d 881. "The dispositional phase involves a determination of what action, if any, will be taken on behalf of the child." Id. at 313, 964 N.W.2d 881 (citation and quotation marks omitted). "Unlike the adjudicative [trial], at the initial dispositional hearing the respondent is not entitled to a jury determination of the facts and, generally, the Michigan Rules of Evidence do not apply, so all relevant and material evidence is admissible." Id. (citation and quotation marks omitted). "If permanent termination of parental rights is sought, the petitioner bears the burden of proving the statutory basis for termination by clear and convincing evidence." Id. (citation and quotation marks omitted).

In In re Mota , this Court recently held that it is permissible for a trial court to combine the adjudicative hearing and the dispositional hearing. Id. at 314, 934 N.W.2d 610. However, the trial court must clearly bifurcate the proceedings by conducting the adjudicative hearing and determine whether there is sufficient evidence to take jurisdiction before proceeding to the dispositional phase. Id. at 315–316, 934 N.W.2d 610. MCR 3.973 and MCR 3.977(E) are relevant to this Court's analysis in In re Mota. MCR 3.973 provides, in relevant part:

(B) Notice . Unless the dispositional hearing is held immediately after the trial, notice of hearing may be given by scheduling it on the record in the presence of the parties or in accordance with MCR 3.920.

(C) Time . The interval, if any, between the trial and the dispositional hearing is within the discretion of the court. When the child is in placement, the interval may not be more than 28 days, except for good cause.

MCR 3.977(E) provides, in relevant part:

(E) Termination of Parental Rights at the Initial Disposition. The court shall order termination of the parental rights of a respondent at the initial dispositional hearing held pursuant to MCR 3.973, and shall order that additional efforts for reunification of the child

...