Father Waived Best-Interest Hearing: Parental Rights Properly Terminated | Speaker Law
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Father Waived Best-Interest Hearing: Parental Rights Properly Terminated

Posted on Wednesday, December 9, 2020

A trial court did not violate a father’s due process rights and properly terminated his parental rights because the father validly waived his participation in the best-interest hearing, the Michigan Court of Appeals has ruled.

The father in In re Donahue-Bey, Minors (Docket No. 351058) argued the trial court did not specifically indicate that his plea waiver would result in the permanent loss of his parental rights. The father also asserted the trial court did not advise him of his rights under MCR 3.971(B)(3) and (4), and this required the court to find, as the Supreme Court did in In re Ferranti, 504 Mich 1 (2019), that his due process rights were violated and his waiver was invalid.

The Court of Appeals rejected the father’s arguments.

“Given the nature of the proceeding, the various competing rights involved, and the steps taken by the trial court to ensure that respondent was intentionally relinquishing a known right, … we conclude that the trial court adequately protected [the father’s] right to due process, and did not err by failing to apply the prerequisites of MCR 3.971 to [the father’s] waiver,” the Court of Appeals said. “We find no error, plain or otherwise.”

Judges Mark T. Boonstra, Mark J. Cavanagh and Stephen L. Borrello were on the panel that issued the unpublished opinion.

Background

ED and JD are twin girls who were born in 2017. Their mother died later that year. At the time, the respondent-father was not residing with the children’s mother and his paternity of the children was unconfirmed. The children were taken into Department of Health and Human Services (DHHS) custody. The respondent was eventually established as the children’s legal father.

DHHS filed a petition for temporary wardship of the children in February 2018, alleging the respondent lacked suitable housing for the children and had not provided proof of residency or a legal source of income. The petition also alleged: 1) the respondent and the children’s mother had an older child who had been removed from their care and placed in a guardianship with the child’s paternal aunt; 2) the respondent had demonstrated poor judgment after the children’s mother died by bringing the children to the home of their maternal grandmother, which had previously been found by Children’s Protective Services to be unsuitable for children; and 3) the respondent had tested positive for marijuana in September 2017. The respondent waived any challenge to the establishment of probable cause at the preliminary hearing and the Oakland County Circuit Court authorized the petition. During the adjudication phase, the respondent entered a no-contest plea to the allegations in the petition and the trial court took jurisdiction over the children. The children were placed in non-relative foster care.

During the next year, the respondent never provided proof of suitable housing or employment. However, he told DHHS that he was paid “under the table” to work at the boarding house where he resided and made cash money dealing in scrap metal. The respondent attended about 75 percent of his parenting-time visits. These visits generally went well, although there were various incidents where the respondent struggled to control the children and the foster care worker was required to intervene. The respondent completed 35 of 53 drug screens, with five positive screens: one for benzodiazepines, one for marijuana and three for fentanyl.

In April 2019, DHHS filed an amended petition seeking the termination of the respondent’s parental rights. DHHS claimed the respondent: 1) failed to provide proof of suitable housing or legal income; 2) failed to complete an outpatient substance abuse program despite that being recommended by his substance abuse assessor; 3) failed to benefit from parenting time or classes; and 3) was facing charges for possession of a controlled substance, resisting arrest, driving on a suspended license and contempt of court.

The respondent was represented by counsel at the termination hearing in July 2019. At that hearing, the respondent waived his right to a hearing on statutory grounds for termination, stating that he wanted to enter a no-contest plea to the allegations in the petition. The respondent signed a waiver of rights form, which the trial court went over with him at the hearing. After the respondent’s waiver, the foster care worker testified to establish the factual basis for the plea. The trial court accepted the respondent’s waiver and plea, finding that sufficient statutory grounds for termination existed under MCL 712A.19b(3)(c)(i), (ii), (g) and (j). The trial court scheduled a best-interest hearing.

On the date of the best interest hearing in September 2019, the respondent, represented by counsel, stated under oath that he wanted to waive his participation in the hearing and not contest the testimony. The respondent completed a written waiver of rights form, which the trial court reviewed with him. On the form, the respondent wrote his initials next to, and thereby indicated his agreement with, each of 15 separate statements, including statements indicating that: he could read, write and speak English; he had consulted with his attorney; he was not under the influence of drugs or alcohol; he understood this was not a criminal case; and he understood the best-interest hearing process. The respondent also marked the checkboxes next to the following three statements, printed in bold type on the form, to indicate his agreement with those statements:

  1. “I agree that termination of my parental rights is in the best interests of my child(ren).”
  2. “I do not contest any evidence that may be offered to establish that termination of my parental rights is in the best interest of my child(ren).”  
  3. “I waive participation in the best interests hearing.”

The respondent signed and dated the form on a signature block located beneath the statement: “MY LAWYER HAS READ AND EXPLAINED TO ME ALL OF THE INFORMATION ON THIS FORM, AND MY ANSWERS ARE TRUTHFUL.” The form was also signed by the respondent’s attorney on a signature block located beneath the statement: “I HAVE READ AND EXPLAINED THE FOREGOING TO MY CLIENT.”

The trial court accepted the respondent’s waiver of participation. After hearing testimony from the foster care worker and reviewing the report of the psychologist who evaluated the respondent, the trial court determined that termination of the respondent’s parental rights was in the children’s best interests. 

Valid Waiver

On appeal, the respondent argued the trial court erred by accepting his waiver of participation in the best-interest hearing because it failed to advise him of the consequences of that waiver.

“We disagree,” the Court of Appeals said, pointing out that “because respondent validly waived his participation in the best interest hearing, he has waived the right to challenge the trial court’s best-interest determination.”

According to the Court of Appeals, the respondent’s argument concerning the validity of his waiver was based on both Ferranti and MCR 3.971, neither of which applied to his case.

“Respondent argues that the trial court failed to ‘specifically state that his plea waiver would result in the permanent loss of his legal rights to his children and that he would have no right to make decisions about his children and would have no right to see his children,’” the Court of Appeals explained. “Respondent additionally claims that the trial court failed to advise him of his rights under MCR 3.971(B)(3) and (4). Respondent argues that this alleged failure requires us to find, as our Supreme Court did in Ferranti, that his due process rights were violated and that his waiver was invalid. … We disagree. Ferranti concerned a plea of admission entered at the adjudication phase of the proceedings, a phase in which the question is ‘whether the trial court can exercise jurisdiction over the child.’ … A respondent has many legal protections during this phase, such as the right to a trial by jury; this is because this ‘critical’ stage ‘divests the parent of [his] right to parent [his] child and gives the state that authority instead.’ … It is for this reason that the entry of pleas of admission or no-contest to allegations in a petition is regulated by our court rules, including that the respondents be advised specifically of the rights that they are giving up and the consequences of their plea, …; the Ferranti court noted that the invalid pleas entered by the respondents in that case ‘relieved [DHHS] of its burden to prove that the respondents were unfit at a jury trial, with all its due-process protections. … These constitutional deprivations affected the very framework within which respondent’s case proceeded.’”

The Court of Appeals continued by looking at MCR 3.971, which governs pleas of admission or no contest. “By its plain language, MCR 3.971 refers to pleas of admission or no contest to allegations in original or amended petitions. The waiver form signed by respondent at the best-interest hearing contains no such pleas; indeed, respondent had already entered pleas to allegations in the petition and, as noted, he does not challenge those pleas on appeal. Moreover, the placement of this rule within the court rules as a whole – after the rules governing the removal of children but before the rules governing adjudication trials and the dispositional and post-dispositional phases – suggests that it applies during the adjudicative phase, which is the only phase of the proceedings when the respondent possesses the right to a trial by jury. … In short, we see nothing in the language of MCR 3.971 indicating that the requirements of MCR 3.971(B) were intended to apply to a waiver of participation in a best-interest hearing.”

In addition, “we are not required by general due process principles to apply the rules governing pleas, or the rationale of Ferranti, to a waiver of this type,” the Court of Appeals observed. “Although respondent did enter a plea during the adjudicative phase of these proceedings, he does not challenge that plea on appeal; nor does he challenge his plea to the existence of statutory grounds for termination. Rather, his claim of error concerns his waiver of participation in the best-interest hearing. This Court has noted [in In re Moss, 301 Mich App 76 (2013)] that, once statutory grounds for termination have been found, while ‘a parent still has an interest in maintaining a relationship with the child, this interest is lessened by the trial court's determination that the parent is unfit to raise the child.’ … The concerns that animated the Ferranti Court are not present here, and a trial court need not treat a waiver of participation in a best-interest hearing as analogous to a plea of admission. Rather, a trial court (or reviewing court) should simply determine whether the waiver was ‘an intentional relinquishment or abandonment of a known right’ considering the due process interests involved, as it would for any other waiver.”

Here, the waiver form completed by the respondent required much more than a simple signature, the Court of Appeals explained. “Respondent initialed or checked the box next to several statements that belie his argument on appeal that he was not advised that his rights to his children could be permanently terminated. These statements include, ‘I understand that the petitioner has established, by clear and convincing evidence, that there is a basis in law to terminate my parental rights to my child(ren),’ and ‘I understand that the court may consider factors including . . . the advantages of a foster home over my home, and my child(ren)’s need for permanency, stability, and finality,’ and ‘I agree that termination of my parental rights is in the best interests of my child(ren).’ Further, he attested multiple times on the form to consulting with his attorney about the information on the form, and his attorney also affirmed that he had explained the information to respondent. The trial court also affirmed, individually, on the record, that respondent understood every statement on the form. Respondent affirmed orally that he agreed that termination of his parental rights was in the best interests of his children, that he understood the nature of the proceeding in which he was waiving participation, that he was not intoxicated or coerced, and that he had had the opportunity to consult with counsel.”

Therefore, “to the extent respondent argues that, regardless of the validity of his waiver, the trial court erred by determining that termination was in the children’s best interests, he has waived appellate review of this issue by validly waiving participation in the hearing, including challenging the evidence presented, and by expressly agreeing that termination of his rights was in his children’s best interests,” the Court of Appeals concluded.

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