in Re Pederson Minors ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
In re PEDERSON, Minors. February 13, 2020
9:00 a.m.
No. 349881
Presque Isle Circuit Court
Family Division
LC No. 17-000007-NA
Before: CAMERON, P.J., and SHAPIRO and SWARTZLE, JJ.
CAMERON, J.
Respondents appeal as of right the trial court’s order terminating their parental rights to
their two minor children1 under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication
continue to exist), (c)(ii) (failure to rectify other conditions), (g) (failure to provide proper care and
custody), and (j) (reasonable likelihood that the children will be harmed if returned to the parents).
We affirm.
I. FACTUAL BACKGROUND
Respondents’ parental rights were terminated due to their neglect of their minor children
over the course of several years. In March 2017, the Department of Health and Human Services
filed a petition seeking the children’s removal. The petition alleged that respondents had been the
subjects of Child Protective Services complaints on 18 prior occasions, with those prior complaints
regarding both of respondent-mother’s other children, who had since become adults, and the minor
children at issue in this case. Petitioner also alleged that over the course of several years, numerous
caseworkers had visited respondents’ home and found it in appalling condition. During this time,
infestations of spiders and cockroaches had been observed, as had mold and flooding.
Cockroaches had been observed crawling over food in respondents’ refrigerator. The daughter
was significantly overweight, her bedroom had an “unbearable” odor of urine, and her mattress
was so saturated with urine that it had soaked through and inundated the floorboards. The
electricity had been shut off at times for nonpayment of outstanding bills, and the plumbing was
1
We refer to the minor children as “the daughter” and “the son” in this opinion.
-1-
nonfunctional at times. Caseworkers discovered animal feces and urine in the basement. The
minor children had also been habitually absent from school, often without excuse, and had been
sent to school with poor hygiene, noticeable body odor, “greasy” hair, and ill-fitting, unwashed
clothing that sometimes smelled strongly of urine or feces. As a result, the children had been
bullied by their peers. Petitioner alleged that services and assistance were provided to respondents
but that they had failed to rectify the problems. After a preliminary hearing, the trial court
authorized the petition and ordered the children removed from respondents. The children were
eventually placed in a foster home in Traverse City. After their removal, respondents’ son was
assessed and diagnosed with autism spectrum disorder.
At a pretrial hearing on April 21, 2017, respondents’ attorney informed the trial court that
he had spoken with respondents “at length” the previous day and that respondents wished to enter
a plea to jurisdiction rather than proceed to a trial. Respondents’ attorney stated:
We went over the petition and picked out portions we believe . . . will allow
the Court to take jurisdiction. I explained to [respondents] if the Court takes
jurisdiction then they’re going to have to abide by the conditions and terms of the
parent agency treatment plan, as well as recommendations . . . after the
psychological [evaluations are] done. They are both in agreement with that.
I explained to them that they would have a right to a trial on the issue of
jurisdiction before the Court or jury. They’ve agreed to waive those—or that right.
I’ve also went over [sic] the rights to have witnesses called and subpoena witnesses
and things of that sort.
They are going to tender a plea this morning, understanding that if they
don’t comply with the case service plan, eventually the Court will entertain
termination of parental rights.
The trial court subsequently gave respondents an abbreviated advice of rights, stating as follows:
I just want to ensure that you do understand that if you do enter a plea, that
is if you admit allegations that enables the Court to take jurisdiction, that you then
are submitting to the jurisdiction of the Court. You must participate in and benefit
from a case service plan, an initial admonition from the Court is going to be we
want you to be reunified with your children, however, if you do not cooperate with
and benefit from the provisions of the case service plan, you’re risking termination
of your parental rights.
When asked whether they understood, both respondents answered “Yes.” Respondents also
indicated that they were entering their pleas of their “own free will.” The trial court accepted
respondents’ pleas. As summarized by respondents’ attorney, the factual basis for the pleas was
respondents’ joint admission that services had been “provided to them over the course of the last
couple of years,” “those services did not result in an improvement of their home situation,” they
had “neglected their children because the home was not fit for them because it was unsanitary,”
and they were facing eviction.
-2-
Respondents were subsequently convicted of fourth-degree child abuse, MCL 750.136b(7),
arising out of the same circumstances alleged in the initial petition in this case. Respondents were
sentenced to 90 days in jail. Respondents indicated that they did not want to arrange any face-to-
face visitation with the minor children while incarcerated. When respondents were released from
jail in November 2017, they were homeless, unemployed, and actively seeking public assistance.
They moved into a motel and made arrangements to move into an apartment a few weeks later.
According to the caseworker, Amanda Fisher, as of a review hearing on May 14, 2018, the
children were doing well in foster care, and respondents had been making steady progress.
Respondents had completed parenting classes, they had obtained suitable housing, they were
engaging in therapy, and they were acting appropriately during supervised weekly visits with the
children, which they had attended consistently. Based on such progress, Fisher recommended that
petitioner be given discretion to permit unsupervised visitation. However, the daughter had asked
for an opportunity to meet with respondents before any unsupervised visitation was permitted, and
the daughter’s therapist offered to perform family counseling sessions. The trial court agreed and
entered a commensurate order. In an attempt to qualify for a housing subsidy, however,
respondents intentionally became homeless. Consequently, no unsupervised visits ever occurred.
In July and August 2018, the daughter’s therapist, Paula Kilcherman, held several family
therapy sessions with the daughter and respondents. During those sessions, respondents tended to
blame the daughter for the children’s removal. Near the end of August 2018, the family therapy
sessions were terminated at the daughter’s request. The daughter believed that respondents had
not changed, and she was upset with what she perceived as their failure to take “responsibility for
their behaviors.” Thereafter, the daughter consistently maintained that she wanted to “move on”
and have no further contact with respondents.
Petitioner subsequently filed a supplemental petition seeking termination of respondents’
parental rights. In October 2018, the children’s lawyer-guardian ad litem (LGAL) moved to
suspend further visits between respondents and the minor children pending a dispositional hearing
concerning termination. Two caseworkers—Fisher and Danielle Mankin—testified in support of
the LGAL’s motion, stating that suspension of further visits would best serve the children’s
interests and noting that the daughter had refused to participate in any further visits with
respondents. Fisher noted that the son was excited for visits but that the visits also seemed to cause
him anxiety. The trial court granted the LGAL’s motion to suspend visitation pending a hearing
concerning termination.
By the December 2018 review hearing, respondents had obtained a new home, which
petitioner deemed to be appropriate. At the parties’ agreement, the proceedings were adjourned
to give the children an opportunity to visit the home. The visit took place either on or around
Christmas 2018. Although respondent-mother believed that the visit went well, the daughter
informed Kilcherman that she was “very upset” because respondents had made “promises” to her
that were “contingent on her . . . coming home.”
In January 2019, the daughter gave Kilcherman a letter in which the daughter made
allegations of inappropriate sexual behaviors in the past involving herself, respondents, and several
of her older brothers. Kilcherman believed that the daughter’s allegations were genuine and not a
contrived means of seeking termination of respondents’ parental rights.
-3-
At the May 2019 review hearing, Kilcherman testified that the daughter had made
significant progress since entering foster care. Before her removal, she had been suicidal. Since
removal, her general hygiene had improved “tenfold.” She had also lost significant weight,
stopped wetting the bed, “become successful in school,” gained confidence, increased her social
interaction with peers, garnered “a few friends,” developed better “coping skills,” and joined the
school marching band. Kilcherman opined that the daughter was capable of making “informed
and responsible decisions about where she wants to live,” and she noted that the daughter had
made seemingly credible threats on more than one occasion that she would run away from home
if she was returned to respondents. The daughter was angry with respondents, and Kilcherman
believed that she would suffer behavioral, physical, and emotional regression if she was forced to
return to respondents against her will. According to Kilcherman, the daughter required
permanency, and her uncertainty in that respect was holding her back from achieving further
progress.
The son’s Board-Certified Assistant Behavior Analyst, Megan Keyes, testified that she was
tasked with developing programming to assist the son with his autism-related skill deficits, and
that she had been working with the son for about a year and a half. Such programming included
family training involving the foster parents, and Keyes indicated that the son “was really lucky
with the foster parents he got” because the foster mother had been proactive about autism treatment
even before the son was referred for services. The foster parents had also successfully potty-
trained the son. According to Keyes, the son was in the fifth grade and functioning at a
kindergarten or first-grade level academically, but he had made significant progress while working
with Keyes.
Family support specialist Celia Anderson supervised several of respondents’ visits with the
children from October 2017 through August 2018 until the daughter asked to stop the family
therapy sessions. Anderson opined that the visits went well and respondents acted appropriately.
In particular, over time respondents had begun to bring healthier meals and snacks for the children,
and they were better at monitoring the children’s portion sizes. The children generally seemed
reluctant to leave the visits that Anderson observed, and there seemed to be a solid parent-child
bond.
The foster mother testified that the children had been placed in her home since April 2017.
The daughter had bonded with one of the foster family’s daughters, who was around the same age
as her. The foster mother confirmed that Anderson and Fisher had supervised different visits, and
she stated that the children showed some regression and behavioral issues following visits with
respondents. The daughter would overeat following visits, and the son often seemed withdrawn
or angry afterward. During one visit in particular, which followed an upsetting family therapy
session, the daughter had become emotional and asked to leave early. The foster mother confirmed
that the daughter had threatened to run away from home if she was returned to respondents’ home.
The foster mother opined that reunification “would hurt the kids[.]”
On June 1, 2019, a police officer was dispatched to an adult foster care home where
respondent-mother’s adult son, who had autism, had previously resided. Respondents were
attempting to remove “an old truck, . . . a snowmobile, and trailer” that belonged to respondent-
mother’s adult son. The officer informed respondents that they could not use the old truck to tow
away the other equipment because the truck was unregistered and uninsured. The officer arrested
-4-
respondents after learning that they had outstanding arrest warrants for failure to pay fines. A few
days later, the same officer received a report that respondent-mother’s adult son had been seen
removing the old truck from the adult foster care home. The officer located the old truck as it was
being driven by respondent-father, who was towing the trailer and snowmobile. Respondent-
mother was following him in respondents’ car, with her adult son as her passenger. The officer
attempted to initiate a traffic stop, but respondents refused to pull over and instead led the officer
on a high-speed chase through a nearby town. Respondents were eventually apprehended and
charged with fleeing or eluding a police officer, MCL 750.479a.
The termination hearing was held on two dates in July 2019. Dr. Timothy Strauss, a clinical
psychologist, testified that he had performed clinical evaluations on respondents and both children
in 2017. Respondent-father “reported that he had been in special education his whole life,” had
dropped out of high school, was unemployed, and was “on disability . . . , initially for learning
problems but also physical problems.” Respondent-father also reported “significant symptoms of
depression”; he was unsure as to whether he may have been on any medication for depression and
advised Dr. Strauss to ask respondent-mother about his medications. In general, respondent-father
presented as “kind of a depressed, withdrawn, somewhat isolated person” with poor interpersonal
skills and a “lower I.Q.” Later testing revealed that respondent-father had an “extremely low” IQ
score, falling in the bottom two percentile. Based on his cognitive deficits, Dr. Strauss opined that
respondent-father would have difficulty parenting, particularly a child with special needs. Dr.
Strauss diagnosed respondent-father with “major depression with anxious features” and
“dependent personality disorder with schizoid traits.” As a result of the borderline personality
disorder, Dr. Strauss opined that respondent-father would “be passive in relationships . . . and have
difficulty with attachment, and closeness, and empathy.” Although Dr. Strauss recommended
services for respondent-father, including further assessments, a medication review, and budgeting
assistance, he believed that his prognosis was “very poor” because he would likely neglect his
treatment. Dr. Strauss testified that personality disorders are “difficult to treat and take a year or
two of therapy” and that respondent-father’s low IQ was effectively untreatable.
Dr. Strauss’s evaluation of respondent-mother revealed that she suffered from degenerative
physical disabilities, including pain in her back and knees. She reported that she was on a “variety
of medications,” including antianxiety and antidepressant drugs, plus medications for pain, chronic
headaches, and asthma. Respondent-mother also reported that she had previously been diagnosed
with post-traumatic stress disorder. Dr. Strauss diagnosed respondent-mother with “generalized
anxiety disorder,” “a mixed personality disorder with dependent, avoidant and schizoid traits,”
“major depression with anxiety,” and “an average I.Q.” Respondent-mother also had difficulty
budgeting. Like respondent-father, her personality tended to be “dependent,” “withdrawn,” and
“rather passive[.]” Although Dr. Strauss recommended various therapies, budgeting assistance,
and a medication review, he viewed respondent-mother’s general prognosis as “poor.” He testified
that the prognosis for her “not to be a neglectful parent” as “very poor[.]” Dr. Strauss explained
that personality disorders “just take a long time to treat,” and “if you have special needs children
it makes it very complicated to pull off and be fully functional as a parent.” Indeed, respondent-
mother had received similar diagnoses from a different doctor in 2014, and there had been no
“significant . . . positive change[.]”
With regard to the minor children, Dr. Strauss noted that the son suffers from “severe
autism.” Dr. Strauss diagnosed the daughter with “generalized anxiety disorder,” which is
-5-
common in children who have “separation anxiety.” In Dr. Strauss’s estimation, when he
examined respondents in 2017, they lacked the capabilities to provide the son with the highly
structured environment and the treatment plan that he required. They also lacked the initiative and
motivation necessary to assist the daughter with achieving a regular routine, eating well,
exercising, and maintaining proper hygiene. In sum, Dr. Strauss believed that children in
respondents’ care would suffer “a very high, long-term chronic risk for neglect[.]”
Fisher testified that she performed two home visits at the children’s foster placement in the
two months before the termination hearing. The children were “continu[ing] to do well” in that
placement, with “no change in their behaviors.” Fisher believed that respondents had failed to
“benefit from certain services, particularly mental health services.” She opined that—although the
minor children loved respondents and were bonded to them—it would be in their best interests to
terminate respondents’ parental rights. Fisher noted the great progress the children had made in
foster care, her belief that such progress would be jeopardized if reunification occurred,
respondents’ seeming inability to maintain stability and provide for the children’s special needs,
and the fact that the parent-child bond had seemingly weakened since the children entered foster
care.
Mankin testified that respondents had demonstrated some benefit from the services they
received and had maintained suitable housing for approximately the six months preceding the
termination hearing. However, Mankin had doubts that respondents would be able to maintain
housing over time. Respondents had been experiencing budgetary problems and had outstanding
arrest warrants. Moreover, they had not adequately addressed their psychological problems, and
the prognosis of full recovery was not encouraging. Although respondents had engaged in some
counseling, they had been inconsistent in attending the sessions. In Mankin’s view, although
respondents seemingly loved the children, they had demonstrated that they were not capable of
caring for their special needs.
Respondent-mother testified at the termination hearing and admitted that, at the time of
adjudication, their home had been unsuitable for the children and that respondents had neglected
them. Respondent-mother testified that respondents loved their children, and respondent-mother
maintained that they had made great strides during the pendency of the case. Respondents were
residing in a clean, appropriate home in a trailer park that was located in a safe neighborhood in
Traverse City and had a play area for the children. Respondents had secured a housing voucher
that paid 75% of their rent. They were paying their bills consistently and had developed a payment
plan to pay off court fines that they owed. Also, the fleeing or eluding charges against them had
been “discharged or dismissed,” with respondent-father evidently entering a plea to serve three
days in jail and pay a $300 fine for driving the truck without registration or proof of insurance.
Respondents had also changed to healthier eating habits and planned to ensure proper nutrition
and dietary restrictions for the minor children in the future. Respondent-mother was attending
individual counseling sessions and joint counseling sessions with respondent-father, and she
believed they were benefiting from counseling.2 Also, they were taking prescribed psychoactive
2
Respondent-mother denied that she had any type of personality disorder.
-6-
medications that helped with their psychological problems. Respondent-mother also believed that
she had benefitted from parenting classes and budgeting services she had received during the case.
On cross-examination, respondent-mother admitted that, despite the psychological issues
she had from being raised in an “extremely abusive home,” she did not attend any individual
counseling sessions from June 2018 to February 2019. Respondent-mother also admitted to having
ongoing financial difficulties, to failing to pay court fines and costs, to further criminality on the
part of respondent-father, and to the fact that her driver’s license was either suspended or “expired
and suspended.” On the topic of the daughter’s past bedwetting, respondent-mother suggested that
it might have been done “on purpose,” with the daughter intentionally urinating in her bed because
she had been “[t]oo lazy to get out, . . . more busy watching her tv, or cutting up paper, or playing
on her computer, or playing on her phone[.]”
At the outset of the termination hearing, there was a discussion about whether the then 15-
year-old daughter would testify. Petitioner’s attorney and the LGAL were opposed to her
testifying because the daughter’s therapist indicated it would be traumatic for her to testify in open
court. However, respondents called the daughter as a witness. She testified that she and the son
“get along just fine” with the foster family, and she thought the son had made quite a bit of progress
in that placement. The daughter identified respondents by their full names, rather than referring
to them as “mom and dad” or “mother and father.” She indicated that respondents had neglected
her and that she had been abused sexually, physically, and emotionally in their household.
Conversely, her foster parents were supportive and provided a safe, clean home. The daughter
also testified that she was no longer being bullied in school and had lost “a total of 72.5 pounds.”
The daughter felt strongly bonded with her foster family, and while she still “kind of” loved
respondents, she wanted no further contact with them even if they were able to maintain a stable
home environment. The daughter did not believe that respondents had meaningfully changed or
that they were capable of providing proper care for her, and she would refuse to return to them
regardless of the outcome of these proceedings. Instead, she wanted to remain in foster care. The
son, however, continued to inform the daughter that he wanted to “go home” to respondents. She
attributed this to his lack of understanding.
The trial court permitted the daughter to read two prepared statements, which summarized
her feelings as follows:
I grew up in a house of dog and chicken feces all over the house and never
knew how to bathe, never had friends, hopping house to house. Now, I have a lot
of friends that support me. I smell like laundry detergent and soap. I love school
to death and I’m on the Honor Roll for the second year in a row. And this is also
my cleanest house I’ve ever lived in.
* * *
So, when I was raised with my parents I felt like, just thinking about it right
now, that I am very livid and disgusted about the question, why am here [sic] or
why was I treated like this by my own parents? But, here’s the thing, children
should not be treated like pets out of a dumpster, basically. Especially by their
siblings. Even parents know how to treat their kids, and no one has dog feces or
-7-
chicken feces, especially under a truck topper, in the living room. And I was always
the one who cleaned it up. So, my basement was smelling like bleach all the time
because it was the last minute before the cop came in the house to inspect the
basement to see if it was still a safe place. And I didn’t know how to bathe. And
my life was horrible because I was always bullied by popular kids every day of my
life. And it wouldn’t stop. And I had an older brother . . . who forced me to watch
porn. And he also called me a lesbian. So, I didn’t know what that meant. . . . And
we kept getting evicted. They never paid bills or taxes. We always went to
amusement parks for only fun. And I—every time I was bullied, and I told them
about it, they were not supportive at all. And I never knew what foster care was
until now and I absolutely love it. I think its heaven for me, basically, because I’m
in a family that supports me. They welcomed me into their home. They take care
of all the bullies that I have in my way. And they’re just very protective.
During closing arguments, the LGAL indicated that he believed it was vital for the trial
court to terminate respondents’ parental rights in order to afford the children permanency. He also
argued that the trial court should disregard the son’s stated desire to return to respondents given
the son’s limited capacity to reach a rational decision in that respect. After considering the
evidence on the record at substantial length, the trial court found that statutory grounds for
terminating respondents’ parental rights had been established under MCL 712A.19b(3)(c)(i),
(c)(ii), (g), and (j), and that termination of their parental rights was in the children’s best interests.
This appeal followed.
II. ADJUDICATION
Respondents first argue that, when accepting their pleas to establish the trial court’s
jurisdiction over the children, the trial court erred by failing to properly advise them of all of the
consequences as required by MCR 3.971(B). More specifically, respondents contend that the trial
court failed to comply with MCR 3.971(B)(4) by failing to advise them that their pleas could be
used against them during subsequent termination proceedings. Respondents did not move to
withdraw their pleas in the trial court or otherwise object to the advice of rights that they were
provided. Thus, this issue is unpreserved. See In re Zelzack, 180 Mich App 117, 126; 446 NW2d
588 (1989) (where the respondent did not argue in the trial court that he should be allowed to
withdraw his plea, and therefore, the trial court never addressed the issue, “the issue was not
preserved for appeal”).
Both this Court and our Supreme Court have applied the plain-error standard set forth in
People v Carines, 460 Mich 750; 597 NW2d 130 (1999), to unpreserved claims of error arising
out of child protective proceedings. See In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019);
In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011). The Carines test “has four
elements”:
1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) . . . the
plain error affected substantial rights . . . [, and 4)] once a defendant satisfies these
three requirements, an appellate court must exercise its discretion in deciding
whether to reverse. Reversal is warranted . . . when the plain, forfeited
error . . . seriously affected the fairness, integrity or public reputation of judicial
-8-
proceedings . . . . [People v Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018),
quoting Carines, 460 Mich at 763-764 (alterations and some ellipses in Randolph).]
“A ‘clear or obvious’ error under the second prong is one that is not ‘subject to reasonable
dispute.’ ” Randolph, 502 Mich at 10. An error has affected a party’s “substantial rights when
there is ‘a showing of prejudice, i.e., that the error affected the outcome of the lower court
proceedings.’ ” People v Walker, 504 Mich 267, 276; 934 NW2d 727 (2019), quoting Carines,
460 Mich at 763. “It is the defendant rather than the Government who bears the burden of
persuasion with respect to prejudice.” Carines, 460 Mich at 763 (quotation marks and citation
omitted).
“In Michigan, child protective proceedings comprise two phases: the adjudicative phase
and the dispositional phase.” In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014). The
family court determines whether to take jurisdiction of the child during the adjudicative phase. Id.The “fact-finding adjudication of an authorized petition to determine if the minor comes within
the jurisdiction of the court” is called a “trial.” MCR 3.903(A)(27). The term “trial” includes a
“specific adjudication of a parent’s unfitness,” which subjects the parent to “the dispositional
authority of the court.” MCR 3.903(A)(27). A parent may also waive his or her right to a trial and
admit the allegations in a petition or plead no contest to them. MCR 3.971(A); In re Sanders, 495
Mich at 405.
Pleas generally waive certain rights, and respondents’ jurisdictional pleas in this case
effectively waived, among other things, their rights to a jury trial, to cross-examine the witnesses
against them, and to force petitioner to prove grounds for jurisdiction at a trial. See MCR
3.971(B)(3) (enumerating the rights that a respondent must be advised that he or she will waive by
entering a jurisdictional plea). “Waivers of constitutional rights not only must be voluntary but
must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and
likely consequences.” Brady v United States, 397 US 742, 748; 90 S Ct 1463; 25 L Ed 2d 747(1970). Hence, for a plea to constitute a valid waiver of constitutional rights, the person entering
it must be made “fully aware of the direct consequences of the plea.” People v Cole, 491 Mich
325, 333; 817 NW2d 497 (2012) (quotation marks and citation omitted). “A consequence is
‘direct’ where it presents ‘a definite, immediate and largely automatic effect’ on the defendant’s
range of punishment.” United States v Kikuyama, 109 F3d 536, 537 (CA 9, 1997), quoting United
States v Wills, 881 F2d 823, 825 (CA 9, 1989).
In the context of jurisdictional pleas in child protective proceedings, “[o]ur court rules
reflect this due-process guarantee.” In re Ferranti, 504 Mich at 21.3 At the time respondents’
3
Before In re Ferranti was released, our Supreme Court amended MCR 3.971 to require trial
courts to inform a respondent that appellate review is available to challenge the “court’s initial
order of disposition,” MCR 3.971(B)(6), and that the respondent “may be barred from challenging
the assumption of jurisdiction in an appeal from the order terminating parental rights if [the
respondent] do[es] not timely file an appeal of the initial dispositional order . . . .” MCR
3.971(B)(8). Additionally, in the event that a respondent is not informed that he or she is entitled
-9-
pleas were entered, MCR 3.971 provided, in relevant part, the following:
(B) Advice of Rights and Possible Disposition. Before accepting a plea of
admission or plea of no contest, the court must advise the respondent on the record
or in a writing that is made a part of the file:
(1) of the allegations in the petition;
(2) of the right to an attorney, if respondent is without an attorney;
(3) that, if the court accepts the plea, the respondent will give up the rights
to
(a) trial by a judge or trial by a jury,
(b) have the petitioner prove the allegations in the petition by a
preponderance of the evidence,
(c) have witnesses against the respondent appear and testify under
oath at the trial,
(d) cross-examine witnesses, and
(e) have the court subpoena any witnesses the respondent believes
could give testimony in the respondent’s favor;
(4) of the consequences of the plea, including that the plea can later be used
as evidence in a proceeding to terminate parental rights if the respondent is a
parent. [Emphasis added.]
The record supports that the trial court advised respondents of most of the rights listed in
MCR 3.971. However, contrary to MCR 3.971(B)(4), the trial court failed to advise them that
their pleas could “later be used as evidence in a proceeding to terminate parental rights . . . .” A
written advice of rights form containing such information does not appear in the record. Thus, by
failing to properly advise respondents as required by MCR 3.971(B)(4) that their pleas could “later
be used as evidence in a proceeding to terminate parental rights,” the trial court erred.
However, with regard to the prejudice prong of the plain-error test, we conclude that
respondents have failed to carry their burden of demonstrating that the adjudicatory error at issue
in this case was outcome-determinative. More specifically, in In re Ferranti, 504 Mich at 30-31,
our Supreme Court found error warranting reversal based on a finding that, because the trial court
to challenge a trial court’s assumption of jurisdiction on appeal from the initial dispositional order,
“the respondent may challenge the assumption of jurisdiction in an appeal from the order
terminating [the] respondent’s parental rights.” MCR 3.971(C). The child protective proceeding
at issue in this appeal was initiated in 2017, and respondents entered their pleas in April 2017.
-10-
failed to advise respondents of the rights they were waiving and the potential consequences of their
pleas, the trial court violated their due process rights because the pleas were unknowing and
involuntary. It was undisputed in that case that the trial court’s advice of rights was deficient
because the trial court failed to advise the respondents of “any” of the waived rights enumerated
by MCR 3.971(B)(3) or (B)(4). Id. at 31.
MCR 3.971(B)(3) lists the rights that a parent waives by virtue of entering a plea, as
opposed to requiring petitioner to proceed to trial and prove the allegations contained in the petition
by a preponderance of the evidence. MCR 3.972(C)(1). The rights outlined in MCR 3.971(B)(3)
are particularly important because they directly relate to the adjudicative stage of the child
protective proceeding. The adjudicative stage is a critical stage in the proceeding because if the
trial court exercises jurisdiction, then the parent will be unable to control the care and custody of
his or her child, In re Deng, 314 Mich App 615, 626; 887 NW2d 445 (2016), and will be subjected
to “the dispositional authority of the court,” MCR 3.903(A)(27). See In re Sanders, 495 Mich at
405-406 (“While the adjudicative phase is only the first step in child protective proceedings, it is
of critical importance because the procedures used in adjudicative hearings protect the parents
from the risk of erroneous deprivation of their parental rights.”) (quotation marks and citation
omitted.). In contrast, if the trial court determines that it lacks authority to exercise jurisdiction,
the minor child must be returned to the care of his or her parent(s). See MCR 2.514(A). See also
MCL 712A.18(1) (providing that the trial court must dismiss the petition if it is found that the
petition concerning the child at issue does not fall within the chapter). The importance of the
adjudicative stage is reflected by the fact that it is the only stage of the proceeding when a parent
is entitled to a trial. See also MCR 3.977(A)(3); In re Sanders, 492 Mich at 405-406. Thus, by
failing to advise the respondents of the rights outlined in MCR 3.971(B)(3), the trial court in In re
Ferranti effectively tainted the adjudicative stage of the proceeding.
This case does not feature the numerous errors that occurred in In re Ferranti. Respondents
in this case only take issue with the fact that the trial court failed to advise them that their pleas
could “later be used as evidence in a proceeding to terminate parental rights” as required by MCR
3.971(B)(4). Thus, unlike the parents in In re Ferranti, respondents in this case were informed of
most of the rights that they were waiving, including their rights to a trial by judge or jury, to have
witnesses against them appear, and to subpoena witnesses. Moreover, the transcript of the plea
proceeding supports that respondents reviewed the allegations in the petition with their attorney,
who represented them at the plea hearing. See MCR 3.971(B)(1) and (2). The record also supports
that respondents discussed the allegations contained in the petition with their attorney and
considered their decision. Respondents’ attorney indicated the following at the hearing:
I did speak at length with the Pedersons yesterday. We went over the
petition, and picked out portions we believe that will allow the Court to take
jurisdiction . . . . They are both in agreement with that.
***
I explained to them that they would have a right to a trial on the issue of
jurisdiction before the Court or jury. They’ve agreed to waive those—or that right.
-11-
I’ve also went over [sic] the rights to have witnesses called and subpoena witnesses
and things of that sort.4 [Emphasis added.]
Each of the allegations that respondents were pleading to were read aloud at the hearing.
Thus, respondents were clearly advised of the allegations to which they were pleading.
Additionally, and importantly, respondents confirmed that they were entering pleas of their own
free will. Specifically, before the trial court accepted respondents’ jurisdictional pleas, the
following line of questioning occurred:
Trial Court: Is anyone, Ms. Pederson, twisting your arm to enter into this
plea or are you doing it of your own free will?
Ms. Pederson: My own free will.
Trial Court: And Mr. Pederson?
Mr. Pederson: My own free will.
Although respondents were not informed that their pleas could “later be used as evidence
in a proceeding to terminate parental rights,” respondents were informed on several occasions that,
if the pleas were accepted, a consequence of their pleas would be that they would be required to
comply with the case service plans. The record of the plea proceeding supports that respondents
had reviewed the case service plans before the plea hearing. Furthermore, respondents were
informed several times that another possible consequence of their pleas was that their parental
rights could be terminated if they did not comply with the case service plans. Respondents
indicated under oath that they understood this, thereby supporting that they understood the nature
and the consequences of their pleas.
Thus, this is not a case involving a complete failure to address the requirements listed in
MCR 3.971(B)(4). Furthermore, MCR 3.971(B)(4) relates to the dispositional phase of the
proceedings—as opposed to the adjudicative phase—in that (B)(4) does not address the rights
associated with an adjudication trial. Rather, MCR 3.971(B)(4) concerns how entering a plea at
the adjudication stage could later be used against respondents during the dispositional phase. Thus,
unlike in In re Ferranti, the adjudicative stage was not tainted by the trial court’s failure to advise
respondents of their rights under MCR 3.971(B)(4). Rather, respondents were aware that they
were giving up the right to an adjudication trial before entering pleas.
Additionally, we conclude that the trial court’s error did not affect the outcome of the
dispositional phase of the proceedings. More specifically, in In re Ferranti, 504 Mich at 12, the
trial court relied on two statutory grounds for termination: MCL 712A.19b(3)(c)(i) (conditions that
led to the adjudication continue to exist) and MCL 712A.19b(3)(g) (parent is unable to provide
proper care and custody). In addition to citing both of those grounds, the trial court in this case
4
At oral arguments, respondents’ appellate attorney, who was also respondents’ trial attorney,
indicated that he could not recall if he advised respondents that their pleas could be used against
them during termination proceedings.
-12-
also relied on MCL 712A.19b(3)(c)(ii), under which termination may be appropriate on the basis
of grounds “other” than those that led to the adjudication. See In re JK, 468 Mich 202, 210-212;
661 NW2d 216 (2003). As explained below, the trial court did not clearly err by finding that
termination of respondents’ parental rights was warranted under MCL 712A.19b(3)(c)(ii).
Although respondents’ pleas served to establish a statutory basis for jurisdiction, because only one
statutory ground for termination need be established, In re Ellis, 294 Mich App 30, 32; 817 NW2d
111 (2011), and because termination under MCL 712A.19b(3)(c)(ii) is, by definition, unrelated to
the grounds that led to the adjudication, it follows that the adjudicatory error at issue here did not
affect the decision to terminate respondents’ parental rights.
Because we cannot conclude from the record that respondents’ pleas were not knowingly
and voluntarily made or that respondents’ decision to plead affected the adjudicative or
dispositional stages of the proceeding, we conclude that respondents have failed to carry their
burden of demonstrating prejudice. See Carines, 460 Mich at 763.
Furthermore, even if we were to conclude that respondents’ substantial rights were
affected, respondents would not automatically be entitled to reversal. Rather, “[r]eversal is
warranted . . . when the plain, forfeited error . . . seriously affected the fairness, integrity or public
reputation of judicial proceedings.” See Randolph, 502 Mich at 10. In this case, respondents have
not argued that they would not have pleaded to some of the allegations in the petition had the trial
court informed them that their pleas could be used as evidence against them if termination
proceedings commenced.5 Respondents were informed that their parental rights could be
terminated if they did not comply with the case service plans. Before respondents entered their
pleas, they had reviewed the case service plans and therefore knew what would be required of
them. After respondents failed to comply with and benefit from the case service plans, termination
proceedings were initiated. As discussed later, overwhelming evidence supported termination of
respondents’ parental rights pursuant to MCL 712A.19b(3)(c)(ii) and that termination was in the
minor children’s best interests. Based on this record, we conclude respondents are not entitled to
relief under plain-error review.
III. STATUTORY GROUNDS FOR TERMINATION
Respondents argue that the trial court clearly erred by finding clear and convincing
evidence supporting the four statutory grounds cited in support of termination. We find no clear
error warranting reversal.
We review for clear error the trial court’s decision whether grounds for termination have
been proven by clear and convincing evidence. In re Medina, 317 Mich App 219, 226; 894 NW2d
5
Although the Court in In re Ferranti, 504 Mich at 30, made it clear that “constitutional
deficiencies . . . are not forgiven by what might have transpired at [an adjudication] trial,” we note
that respondents faced overwhelming evidence against them. Had an adjudication trial been
conducted, the trial court likely would have found that one or more of the statutory grounds alleged
in the petition were proven by a preponderance of the evidence. See Id. at 61-62 (MARKMAN, J.,
dissenting).
-13-
653 (2016). “A finding is clearly erroneous if the reviewing court is left with a definite and firm
conviction that a mistake has been made,” with the reviewing court “defer[ring] to the special
ability of the trial court to judge the credibility of witnesses.” In re LaFrance, 306 Mich App 713,
723; 858 NW2d 143 (2014) (citation omitted).
“To terminate parental rights, the trial court must find that at least one of the statutory
grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence.”
In re Ellis, 294 Mich App at 32. The clear and convincing evidence standard is “the most
demanding standard applied in civil cases[.]” In re Martin, 450 Mich 204, 227; 538 NW2d 399
(1995). Evidence is clear and convincing if it
produces in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established, evidence so clear, direct and weighty and
convincing as to enable the factfinder to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue. [Id. (quotation marks, citation,
and brackets omitted.]
“Evidence may be uncontroverted, and yet not be ‘clear and convincing.’ ” Id. (quotation marks
and citation omitted). “Conversely, evidence may be ‘clear and convincing’ despite the fact that
it has been contradicted.” Id. (quotation marks and citation omitted).
The trial court found that grounds for terminating respondents’ parental rights were
established under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), which authorize termination under
the following circumstances:
(c) The parent was a respondent in a proceeding brought under this chapter,
182 or more days have elapsed since the issuance of an initial dispositional order,
and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is
no reasonable likelihood that the conditions will be rectified within a reasonable
time considering the child’s age.
(ii) Other conditions exist that cause the child to come within the court’s
jurisdiction, the parent has received recommendations to rectify those conditions,
the conditions have not been rectified by the parent after the parent has received
notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that the conditions will be rectified
within a reasonable time considering the child’s age.
* * *
(g) The parent, although, in the court’s discretion, financially able to do so,
fails to provide proper care or custody for the child and there is no reasonable
expectation that the parent will be able to provide proper care and custody within a
reasonable time considering the child’s age.
* * *
-14-
(j) There is a reasonable likelihood, based on the conduct or capacity of the
child’s parent, that the child will be harmed if he or she is returned to the home of
the parent.
In our estimation, Subsection (3)(j) provides the best support for termination. For purposes
of that subsection, the harm in question need not be physical; a “risk of emotional harm” can
suffice. See In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011). On this record, the
trial court did not clearly err by determining that there was clear and convincing evidence that
there was a reasonable likelihood, based on the conduct or capacity of respondents, that the minor
children would suffer emotional harm if they were returned to respondents. The daughter was
steadfastly opposed to reunification, and both of the children had thrived in foster care. Dr.
Strauss’s expert opinion, which was not controverted by any other expert testimony, was that it
would take respondents years to address their psychological issues under optimal circumstances.
Dr. Strauss further opined that respondents’ prognoses were rather poor even with treatment, that
respondent-father’s low IQ was irreversible, and that any child placed in respondents’ care would
suffer “a very high, long-term chronic risk for neglect[.]” Moreover, respondents were admittedly
unable to work, which restricted their income, and they owed tens of thousands of dollars in
outstanding debts. In an attempt to meet some of those obligations, they had financially exploited
one of respondent-mother’s disabled adult children, thereby demonstrating their willingness to
sacrifice the best interests of their children for their own self-interest. Respondents also frequently
found themselves incarcerated and fined for a variety of petty crimes. Time and again, respondents
were unable to accept responsibility for their own actions. This was poignantly demonstrated
when, at the termination hearing, respondent-mother suggested that the daughter might have
intentionally wet her own bed—to the point that it had become so saturated with urine that the
floorboards beneath were soaked—because she was simply too “lazy” to get up and go to the
bathroom. In sum, there was ample evidence for the trial court to conclude that there was a
reasonable likelihood, based on the conduct or capacity of respondents, that the minor children
would suffer emotional harm if they were returned to respondents.
For the same reasons that termination was appropriate under Subsection (3)(j), it was also
appropriate under Subsection (3)(c)(ii). Respondents acknowledge that they were respondents in
a child protective proceeding and, before termination occurred, 182 or more days had elapsed since
issuance of the initial dispositional order. Moreover, the conditions discussed above with regard
to Subsection (3)(j)—respondents’ mental problems, their prognoses, and their recurring legal
problems—are all conditions “other” than those that led to the adjudication because respondents
made no admissions concerning those conditions in their jurisdictional pleas. Although the
evidence establishes that respondents were afforded a reasonable opportunity to rectify these
conditions through services, respondents failed to do so. Moreover, in light of Dr. Strauss’s
testimony, the trial court did not clearly err by finding that there was no reasonable likelihood that
respondents would be able to rectify these conditions within a reasonable time given the ages of
the children. Accordingly, we find no clear error with regard to Subsection (3)(c)(ii).
Having decided that termination was properly granted under Subsection (3)(j) and
Subsection (3)(c)(ii), it is unnecessary to consider or decide respondents’ claims of error
concerning the other disputed grounds. See In re Ellis, 294 Mich App at 32 (“Only one statutory
ground need be established . . . to terminate a respondent’s parental rights, even if the court
erroneously found sufficient evidence under other statutory grounds.”).
-15-
IV. BEST INTERESTS
Respondents also argue that the trial court erred by finding that termination of their parental
rights was in the children’s best interests. We disagree. The trial court’s best-interest
determination is also reviewed for clear error. In re Medina, 317 Mich App at 226.
MCL 712A.19b(5) provides, “If the court finds that there are grounds for termination of
parental rights and that termination of parental rights is in the child’s best interests, the court shall
order termination of parental rights and order that additional efforts for reunification of the child
with the parent not be made.” As explained in In re Medina, 317 Mich App at 237:
Although a reviewing court must remain cognizant that the fundamental
liberty interest of natural parents in the care, custody, and management of their
children does not evaporate simply because they have not been model parents or
have lost temporary custody of their children to the State, at the best-interest stage,
the child’s interest in a normal family home is superior to any interest the parent
has. Therefore, once a statutory ground for termination has been established by
clear and convincing evidence, a preponderance of the evidence can establish that
termination is in the best interests of the child. [Quotation marks, citations, and
brackets omitted.]
“In making its best-interest determination, the trial court may consider the whole record, including
evidence introduced by any party.” Id. (quotation marks and citation omitted).
[T]he court should consider a wide variety of factors that may include the
child’s bond to the parent, the parent’s parenting ability, the child’s need for
permanency, stability, and finality, and the advantages of a foster home over the
parent’s home. The trial court may also consider a parent’s history of domestic
violence, the parent’s compliance with his or her case service plan, the parent’s
visitation history with the child, the children’s well-being while in care, and the
possibility of adoption. [In re White, 303 Mich App 701, 713-714; 846 NW2d 61
(2014).]
In support of their argument that the trial court erred by concluding that termination of their
parental rights was in the children’s best interests, respondents cite the parent-child bonds that
existed in this case, and contend that “[i]n the long run termination of these bonds will be traumatic
and not in the children’s best interest.” This argument ignores that because of respondents’
neglect, the parent-child bond had already been transformed into something that has traumatized
the children. In In re Medina, 317 Mich App at 240, this Court addressed a similar argument as
follows:
Respondent argues that “[k]nowing who one’s biological father is and
having a relationship with him have intrinsic value.” In a utopian world, that might
be true. But ours is an imperfect world, and the “value” a child derives from the
parent-child relationship is not, as respondent suggests, universally positive; if it
were, there would be little need for child protective proceedings.
-16-
In other words, the parent-child bond is a blade that is capable of cutting both ways; whether it
benefits or harms a child depends on how the parent wields it. In this case, respondents’ neglect
over the course of years turned the parent-child bond into something emotionally harmful, and
further contact with respondents will likely only prevent the children’s psychological wounds from
healing. Indeed, the 15-year-old daughter has consistently indicated that she would run away from
home if forced to return to respondents. Consequently, respondents do not have an appropriate
parent-child bond with the minor children.
Respondents’ argument is also myopic, focusing on the parent-child bond to the exclusion
of all else. Considering all of the other pertinent factors and the evidence on the whole, we are not
definitely and firmly convinced that the trial court made a mistake with regard to its best-interest
determinations. Both children have flourished in foster care, and the foster mother indicated that
the foster family was interested in adopting the children if respondents’ parental rights were
terminated. Given the length of these proceedings, the children’s ages, and their special needs,
they are in desperate need of stability and permanency, which the foster family has been able to
provide. Although respondents were able to secure appropriate housing during the proceeding,
they have a long track record of evictions, unpaid debts, mental illness, criminality, and neglect.
Moreover, Dr. Strauss indicated that their psychological problems made them far-from-effective
parents, particularly for children with special needs. Thus, the children would not have been safe
in respondents’ care. See In re VanDalen, 293 Mich App at 141. For those reasons, we are
convinced that the trial court’s best-interest determination was not clearly erroneous.
Affirmed.
/s/ Thomas C. Cameron
/s/ Douglas B. Shapiro
/s/ Brock A. Swartzle
-17-