In Re a Pattengill Minor ( 2023 )

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
UNPUBLISHED
In re A. PATTENGILL, Minor. May 18, 2023
No. 363173
Shiawassee Circuit Court
Family Division
LC No. 21-014398-NA
Before: CAMERON, P.J., and K. F. KELLY and M. J. KELLY, JJ.
PER CURIAM.
Respondent-mother1 appeals by right the trial court’s order terminating her parental rights
to the minor child, AP, at the initial dispositional hearing. Finding no errors warranting reversal,
we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
In 2020, respondent’s parental rights to another child were terminated because of neglect
and respondent’s failure to benefit from services. During respondent’s prior termination case, a
psychological evaluation was performed, during which respondent experienced visual and
auditory hallucinations. The evaluator concluded respondent had a low IQ score and a cognitive
impairment. In addition, the evaluator concluded that respondent was “low in empathy, place[d]
a high value on obedience,” and experienced “deficits in her insight and judgment” that would
impair her parenting abilities. The evaluator recommended that respondent receive ongoing and
consistent support for the safety of her child and to have someone help manage her finances.
In December 2021, petitioner, the Department of Health and Human Services (the
“Department”), filed a petition to remove AP from respondent’s care and terminate respondent’s
parental rights at the initial dispositional hearing. Before AP was born, respondent was a victim
in an Adult Protective Services investigation, during which she was found living in a “shack” for
two years in “deplorable home conditions” without electricity or gas. Respondent was 28 weeks
1
AP’s legal father, whose paternity was established through marriage, was also a respondent in
the proceedings below. The father’s parental rights were not terminated during these proceedings.
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pregnant with AP when she was found and had not received prenatal care. A Child Protective
Services (“CPS”) investigation was opened after respondent tested positive for marijuana at the
hospital after giving birth to AP, at which time AP’s umbilical cord also tested positive for
marijuana. At the hospital, respondent did not have any baby supplies. Respondent was
subsequently hospitalized after having a mental breakdown and suicidal ideations. At the time the
petition was filed, respondent and AP were living with another family who assisted respondent in
caring for AP. This family reported that respondent frequently slept with AP, which violated a
prior infant safe sleep agreement, and would not wake up when AP cried and would ignore her.
Respondent was also arrested and charged with second-degree criminal sexual conduct for
inappropriately touching another individual and was incarcerated while awaiting trial. During
respondent’s criminal proceeding, respondent was deemed incompetent to stand trial because of
her cognitive deficits. Before respondent was incarcerated and during her period of incarceration,
the Department provided services to respondent, but she failed to benefit from them. Respondent
informed CPS investigators that she received Social Security income because of her cognitive
impairments and felt that AP was not safe in her care. Respondent’s caseworker believed that
there was a reasonable risk of harm to AP if she was returned to respondent’s care and that AP
was safe in her foster home, which provided her with permanency.
On August 30, 2022, respondent pleaded no contest to the allegations in the petition.
Before accepting her plea, the trial court extensively questioned respondent to ensure she
understood the ramifications of her plea in light of her cognitive deficits. The court also questioned
her attorney regarding her comprehension and understanding of the termination proceedings and
the implications of her no-contest plea. Respondent testified that she previously informed her
attorney that she wanted to voluntarily relinquish her parental rights. The trial court took
jurisdiction over respondent and AP and proceeded with the dispositional and best-interests
determinations. The trial court found that statutory grounds for termination were met under MCL
712A.19b(3)(j) (reasonable likelihood of harm if returned to parent) and that it was in AP’s best
interests to terminate respondent’s parental rights. Accordingly, the court entered an order
terminating respondent’s parental rights to AP. This appeal followed.
II. ANALYSIS
A. STANDARD OF REVIEW
Generally, the trial court’s decision on a motion to withdraw a plea is reviewed for an abuse
of discretion. In re Zelzack, 180 Mich App 117, 126; 446 NW2d 588 (1989).2 Respondent,
however, did not move to withdraw her plea and has, therefore, failed to preserve the argument for
appeal. Id. Unpreserved issues are reviewed for plain error affecting substantial rights. In re
Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). In order to avoid forfeiture of the argument,
respondent must “establish that (1) error occurred; (2) the error was plain, i.e., clear or obvious;
and (3) the plain error affected their substantial rights. And the error must have seriously affected
2
Cases decided before November 1, 1990, are not binding but may be considered for their
persuasiveness. In re JP, 330 Mich App 1, 14; 944 NW2d 422 (2019).
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the fairness, integrity or public reputation of judicial proceedings.” In re Ferranti, 504 Mich 1,
29; 934 NW2d 610 (2019) (quotation marks, citations, and alteration omitted). “Generally, an
error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the
proceedings.” Utrera, 281 Mich App at 9.
B. DISCUSSION
Respondent argues that her plea was not knowingly, understandingly, and voluntarily made
in light of her cognitive impairment. We disagree.
Pleas in termination proceedings are governed by MCR 3.971, which states, in relevant
part:
(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.
* * *
(6) that appellate review is available to challenge any errors in the
adjudicatory process, which may be challenged in an appeal from the court’s initial
order of disposition;
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(7) that an indigent respondent is entitled to appointment of an attorney to
represent the respondent on any appeal as of right and to preparation of transcripts;
and
(8) the respondent may be barred from challenging the assumption of
jurisdiction in an appeal from an order terminating parental rights if they do not
timely file an appeal of the initial dispositional order under MCR 7.204 or a delayed
appeal under MCR 3.993(C).
MCR 3.971(D)(1) commands that “[t]he court shall not accept a plea of admission or of no contest
without satisfying itself that the plea is knowingly, understandingly, and voluntarily made.”
There is nothing in the record concerning respondent’s no-contest plea to suggest that the
trial court plainly erred when it concluded that respondent’s plea was knowingly, understandingly,
and voluntarily made. Although the record does not contain detailed information about
respondent’s cognitive impairment, the trial court was aware of it and took additional steps to
ensure that her plea was valid. These steps included allowing respondent to interrupt the trial court
if she did not understand something and repeatedly asking her if she understood everything, to
which respondent replied, “Yes.” The following colloquy took place on the record:
Trial Court. Okay. The evidence, allegations in the Petition speak of both
developmental disability and mental illness. It is imperative that, therefore, to [sic]
take a minute and make sure that what she intends to do is voluntary.
[Respondent], it is very important that you understand what I’m saying.
And I—I say that to everybody and it’s not because I don’t think you’re smart
enough or I don’t think this or that. It’s just because this is a foreign environment.
They don’t teach you this stuff in school. And, so I want you to do something I—
I rarely tell people to do and that is go ahead and interrupt me. Just say, wait. Just
put your hand up. Bring it to a halt if—if I’m saying something you don’t
understand. Okay?
Respondent. Yes, your Honor.
Trial Court. Will you do that?
Respondent. Yes.
Trial Court. Okay. Thank you. The—well, okay. I’m gonna start with the
plea. The—your attorney has said that you wish to plead no contest to the
allegations in the Petition. Let me explain what that is.
No contest does not mean you admit them. It doesn’t mean you don’t—you
neither admit nor deny them. You don’t deny them. You don’t admit to them. You
just—you are going to allow the Court to accept them as true for the purpose of its
business today. Though you will not make any admission, the no contest plea will
likely lead to the termination of your parental rights regarding [AP].
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Do you understand that?
Respondent. Yes, your Honor.
Trial Court. Okay. If you don’t wanna do that, we’re all set up and ready
to go. You’re entitled to have a trial and make [petitioner’s attorney] prove that the
Court should take jurisdiction by a preponderance of the evidence and that a basis
to terminate your parental rights exists by clear and convincing evidence. He would
do that by calling witnesses, presenting exhibits. You wouldn’t have to do anything
because it’s his burden of proof.
You’ve got your own lawyer there next to you. And you would have the
right to have him cross-examine the witnesses and challenge the evidence.
Do you understand that?
Respondent. Yes.
Trial Court. Okay. At the end of [petitioner’s attorney’s] case, you,
likewise, wouldn’t have to, but your attorney could produce witnesses and present
testimony and exhibits of your own.
Do you understand that?
Respondent. Yes.
Trial Court. You have the right to have a witness testify on your behalf
even if he or she does not want to appear I would order that witness to be here.
Are you with me?
Respondent. Yes.
Trial Court. Okay. If—you could testify or you could choose not to and I
would consider your testimony fairly. And if you chose not to I wouldn’t hold that
against you in making my decision.
If the Department prevailed and—and won the case, you would have the
right to appeal that. An appeal is not a new trial. It’s where a panel of three judges
review the transcript that we’re making now and the arguments of the parties to
determine whether or not you had a fair trial. And you’d have the right to be
represented on that appeal.
Are you—do you understand that?
Respondent. Yes, your Honor.
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Trial Court. Okay. Those are the rights you’d be waiving in exchange for
this no contest plea.
Do you understand that?
Respondent. Yes.
Trial Court. Okay. It has been pled in the—in the Petition that you have
some cognitive disability and that’s why I wanna make it very clear because I
don’t—you will even have an appeal period after today. But, I wanna make sure
that you’re not being coerced or pressured. You understand what you’re doing.
Do you feel you understand what you’re doing here today?
Respondent. Hm-mmm.
Trial Court. Is that a yes, ma’am?
Respondent. Yes
Trial Court. Okay. Hm-mmm doesn’t show up on the transcript very well.
[Respondent’s attorney], would you, likewise, give the Court your opinion
as her lawyer as to—
Trial Counsel. Yes, your Honor.
Trial Court. The record should reflect that in another county, on a criminal
matter which is much different burdens and standards, that she had been deemed
incompetent to stand trial. So, I—how can I be satisfied that this is a voluntary?
Trial Counsel. Well, your Honor, today when my client made me aware
that she was willing to voluntarily relinquish her custody, she was very clear and
pointed on the fact that it was what—it was in the best interests of [AP]. And not—
she wasn’t concerned with her own position or the father’s position. It was just
pointed to the straight fact that ultimately it was gonna be best for the child.
Trial Court. Okay. And you felt she understood the process?
Trial Counsel. Absolutely. We went through it thoroughly multiple times
and she was carrying on a conversation with me about it. So I’m just very confident
with it.
Respondent focuses heavily on the affirmative answer to the question by her attorney
regarding whether respondent believed termination would be in the best interest of AP, claiming
that she “was susceptibl[e] to the suggestion that whatever the agency wants her to do is what is
best for her daughter, even if [respondent] has no idea what the agency is asking of her.” Despite
there being no evidence that respondent did not understand the question, the trial court was aware
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that respondent had her parental rights terminated to another child. Thus, because respondent was
involved in a prior termination case, she presumably understood what in this case it meant to have
her parental rights terminated.
Further, respondent provides no authority to support her argument that the trial court was
required to make additional accommodations to ensure her plea was valid. Respondent asserts, for
example, that the trial court should have ordered an updated psychological evaluation, appointed
a guardian—in addition to an attorney—to assist respondent throughout this process, and should
have asked her open-ended questions to ensure that she completely understood the questions asked
of her and the rights she was relinquishing. Respondent cites no authority that such
accommodations were required. See Cheesman v Williams, 311 Mich App 147, 161; 874 NW2d
385 (2015) (“An appellant may not merely announce a position then leave it to this Court to
discover and rationalize the basis for the appellant’s claims; nor may an appellant give an issue
only cursory treatment with little or no citation of authority.”). To the extent respondent contends
that the trial court should have accommodated her in compliance with something akin to those
afforded under the Americans with Disabilities Act (“ADA”), we reject the argument as this court
has stated that “a parent may not raise violations of the ADA as a defense to termination of parental
rights proceedings.” In re Terry, 240 Mich App 14, 25; 610 NW2d 563 (2000).
The court also questioned respondent’s attorney regarding her comprehension and
competence in light of the finding in her criminal case that she was incompetent to stand trial.
When respondent’s attorney was asked, specifically, whether respondent understood the nature of
the proceedings, her attorney replied, “Absolutely.” In light of this colloquy, and in light of the
scant treatment respondent gives the issue on appeal, the trial court did not plainly err when it
accepted respondent’s plea despite the finding of incompetence in a sister court.3
In conclusion, the trial court record does not indicate that respondent’s no-contest plea was
not knowingly, intelligently, and voluntarily made. Therefore, respondent has failed to show that
the trial court plainly erred by accepting her no-contest plea to the allegations in the petition.4
3
Respondent also contends that the Department coerced her into making her no-contest plea by
informing the trial court that she was willing to relinquish her parental rights. However,
respondent herself testified during the adjudicatory hearing that she told her attorney that she was
willing to relinquish her parental rights.
4
Although respondent’s statement of the questions presented only raises the issue of whether her
plea was knowing and voluntary, respondent raises a host of other issues on appeal, including
whether there were sufficient statutory grounds to terminate her parental rights and whether the
Department made reasonable efforts toward reunification. Because these issues were not included
in her statement of questions presented, they have been waived. English v Blue Cross Blue Shield
of Mich, 263 Mich App 449, 459; 688 NW2d 523 (2004) (“An issue not contained in the statement
of questions presented is waived on appeal.”). Moreover, respondent did not raise these issues
below and has, therefore, forfeited them absent a showing of plain error. See Utrera, 281 Mich
App at 8.
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Affirmed.
/s/ Thomas C. Cameron
/s/ Kirsten Frank Kelly
/s/ Michael J. Kelly
Even if the arguments had not been waived, they lack merit. The trial court terminated
respondent’s parental rights under MCL 712A.19b(3)(j), which permits termination when “[t]here
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.” The trial court did not plainly err
when it concluded there was a reasonable likelihood that AP would be harmed if returned to
respondent’s care. Respondent failed to demonstrate that she could properly care for AP, whose
umbilical cord tested positive for marijuana at her time of birth. Moreover, respondent did not
have any supplies to care for AP at her time of birth, and respondent herself told CPS that she did
not think AP was safe living with her. When respondent and AP lived with another family,
respondent violated the infant safe sleep agreement by sleeping in the same bed with AP,
respondent would not wake up when AP cried and would ignore her. Respondent’s caseworker
testified that respondent failed to benefit from the three months of services provided during this
case before she was incarcerated, failed to benefit from the services she received while incarcerated
during this case, and failed to benefit from services she received in her prior CPS case, which
resulted in the termination of her parental rights to her other child. Given this evidence, the trial
court did not plainly err when it concluded there was a reasonable likelihood that AP would be
harmed if returned to respondent’s care.
Similarly, the trial court did not plainly err when it terminated respondent’s parental rights
despite the fact that no reasonable efforts were made toward reunification. The petition requested
termination of respondent’s parental rights because DHHS determined there was a risk of harm to
AP, respondent’s parental rights had previously been terminated, and respondent had failed to
rectify the conditions that led to the prior termination. Moreover, the trial court found: (1) by a
preponderance of the evidence that one or more of the grounds for assumption of jurisdiction over
AP under MCL 712A.2(b) were established, (2) there was clear and convincing evidence that one
or more of the facts in the petition were true and established grounds for termination of parental
rights under MCL 712A.19b(3)(j), and (3) termination of respondent’s parental rights was in the
child’s best interests. See MCR 3.977(E).
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