Mother Who Pleaded No Contest Did Not Waive Her Right To Challenge DHHS Reunification Efforts

A mother who pleaded no contest in a termination of parental rights case did not waive or abandon her ability to challenge whether the Department of Health and Human Services made reasonable reunification efforts, the Michigan Supreme Court has ruled.

In a one-page order, the high court in In re CCM Baskin, Minor (Docket No. 170007) reversed Part II of the Michigan Court of Appeals majority opinion in the case (Docket No. 374097) and remanded the matter to the trial court. In Part II of its opinion, the Court of Appeals majority said the respondent-mother had “abandoned and waived” her argument that the Department of Health and Human Services (DHHS) should have provided a treatment plan and should have made reasonable efforts toward reunification.

“The trial court plainly erred in terminating respondent’s parental rights without requiring the … DHHS … to engage in reasonable reunification efforts,” the Michigan Supreme Court said. Justice Brian K. Zahra and Justice Richard H. Bernstein indicated they would have denied leave to appeal in the case, while Justice Kimberly A. Thomas did not participate “because she may have independent knowledge regarding this case.”

Notably, the Michigan Supreme Court’s order cited the reasoning of Court of Appeals Judge Allie Greenleaf Maldonado, who had dissented from the underlying Court of Appeals majority opinion.

“As noted by dissenting Judge Maldonado, respondent did not waive this argument by entering a no-contest plea regarding jurisdiction and statutory grounds for termination because the plea colloquy did not discuss the relinquishment of her statutory right to assert that DHHS had failed to make reasonable efforts to reunify her with her child, including through the development of a case service plan,” the Michigan Supreme Court wrote. “The Court of Appeals further erred by holding that respondent abandoned this argument when she addressed the issue in supplemental briefing at the Court of Appeals’ invitation.”

COA Majority Opinion

The respondent’s case arose after she was in a motor vehicle accident with her two children. The respondent was reportedly driving while impaired in a vehicle with faulty brakes, and neither child was properly restrained. Her 4-year-old son was ejected from the vehicle and died.

Several days after the crash, DHHS filed a petition in the Wayne County Circuit Court seeking to terminate the respondent’s parental rights to her 6-year-old daughter, who had survived the collision. The respondent entered a no-contest plea to jurisdiction and to statutory grounds for termination. The trial court ultimately terminated the respondent’s parental rights.

The respondent appealed, arguing that DHHS did not provide her with a treatment plan and did not make reasonable efforts toward reunification.

The Court of Appeals, in a majority opinion joined by Judge Michael J. Riordan and Judge Christopher M. Murray, rejected the respondent’s argument, finding the issue had been abandoned and waived. In Part II of its opinion, the majority offered two reasons for denying the respondent’s challenge.

First, the Court of Appeals majority noted the issue of whether the respondent should have been provided with reunification efforts was “not included in her statement of questions” presented on appeal. “Additionally, when respondent does address this issue within her brief, she includes insufficient authority in support of her position,” the majority observed. “Respondent cites only one authority in her appellate brief, In re Newman, 189 Mich App 61 … (1991), in support of her contention, but she does not identify what portion of that decision supports her argument. Furthermore, our review of the Newman case does not show anything that could be considered to offer support of her contention in light of the factual scenario before us. Therefore, because respondent has failed to include the issue of reunification within her statement of questions presented and include sufficient authority in support of her position regarding reunification, we consider the issue to be abandoned.”

Second, the Court of Appeals majority said that, even if the respondent did not abandon the reunification issue through her “insufficient briefing,” she waived the issue “by entering a no-contest plea to jurisdiction and statutory grounds for termination.” Pointing to the trial court’s exchange with the respondent when it accepted her plea, the majority noted the trial court informed the respondent “that the next step in the process was a best-interest hearing to determine whether it should terminate her parental rights and, in the event that it did not terminate her parental rights, it would ‘order [her] to do certain things before [CCMB] can be returned to [her] care.’”

Although the trial court “did not expressly use terms such as ‘reasonable efforts’ or ‘reunification,’ the trial court did indicate to respondent that reasonable efforts for reunification would occur only in the contingent event that it did not decide to terminate her parental rights after making a best-interest determination,” the Court of Appeals majority wrote. “Accordingly, the trial court again reiterated to respondent that the next step in the process was a best-interest hearing to determine whether it would terminate her parental rights.”

Therefore, the respondent “waived any argument on appeal that she did not receive reasonable efforts for reunification,” the Court of Appeals majority held.

In a footnote to its opinion, the Court of Appeals majority “acknowledge[d]” the published decision in In re MJC, 349 Mich App 42 (2023) – but declined to follow it. The panel in In re MJC had ruled that a father’s no-contest plea to statutory grounds did not waive his right to challenge the adequacy of DHHS’s reasonable reunification efforts.

“[W]e respectfully decline to follow that case now because respondent in this case, unlike, apparently, the respondent in In re MJC, was informed during the plea process that reasonable efforts for reunification would only occur if the trial court did not decide to terminate parental rights at the best-interest hearing,” the Court of Appeals majority said. “Moreover, we note that the case before us involves an accelerated process by which respondent pleaded to both jurisdiction and grounds for termination. Whereas, the In re MJC proceedings occurred during an extended three-year process, and the only relevant plea discussed in In re MJC was the respondent’s plea to the grounds for termination.”

Judge Maldonado’s Dissent

In her dissenting opinion, which the Michigan Supreme Court referenced in its order, Judge Maldonado explained why the respondent’s plea did not constitute a waiver of her right to challenge the sufficiency of the reunification efforts.

Judge Maldonado pointed out that a waiver requires the “intentional relinquishment or abandonment of a known right” and although “magic words” are not required, the waiver must be “explicit, voluntary, and made in good faith.” According to the judge, this distinction was recognized in the In re MJC decision. “Unlike the majority, I do not find In re MJC to be distinguishable from the instant case on this point because just as in In re MJC the trial court did not inform respondent that she has the statutory right to reunification services and that she was waiving those services through her no-contest plea.”

Judge Maldonado also detailed the plea exchange between the trial court and the respondent. “I cannot conclude from this colloquy that the trial court clearly indicated to respondent that she was entitled to reasonable efforts toward reunification – including a case service plan – and that she was relinquishing that statutory right through her plea to jurisdiction and statutory grounds,” she stated. “The only potential reference to reasonable efforts, DHHS services, or a case service plan was the trial court’s statement that it may ‘order [respondent] to do certain things before [her] children can be returned to [her] care.’ But that statement did not make clear the DHHS’s responsibilities to facilitate reunification. Therefore, I would conclude that, just as in In re MJC, respondent’s no contest plea in the present case did not amount to an ‘intentional relinquishment or abandonment of a known right.’”

Accordingly, “this issue has not been waived, and this Court can consider whether the DHHS failed to make reasonable reunification efforts, such that the trial court erred by terminating respondent’s parental rights,” Judge Maldonado concluded.

Next, Judge Maldonado addressed reasonable reunification efforts. “In the present case, a careful review of the record compels the conclusion that the trial court plainly erred in terminating respondent’s parental rights without the DHHS engaging in reasonable reunification efforts,” she said. “Indeed, the order terminating respondent’s parental rights indicates: ‘Reasonable efforts were made to preserve and unify the family to make it possible for the child(ren) to safely return to the child(ren)’s home. Those efforts were unsuccessful.’ But when the trial court terminated respondent’s parental rights at the best-interest hearing, the court stated: ‘[Respondent’s] reaction, denying accountability for her role in the crash suggest[s] she may not increase her safety practice if this Court were to allow her to work towards reunification. Her failure to recognize responsibility suggest[s] she does not understand her duty to keep her children safe, or what it takes to keep them safe. [Emphasis added.]’”

According to Judge Maldonado, this statement from the trial court “contradicts the trial court’s finding that ‘reasonable efforts were made.’ To the contrary, this statement indicates that no reunification efforts were offered or even permitted.”

As a result, “I would conclude that the trial court plainly erred by determining that reasonable efforts were made and terminating respondent’s parental rights at initial disposition. In light of the accelerated proceedings, I would further conclude that this error affected the outcome of the proceedings, causing prejudice to respondent,” Judge Maldonado wrote. “For these reasons, I would reverse the order terminating respondent’s parental rights and remand for further proceedings.”