Mother’s Waiver Correctly Enforced In Later Removal Hearings

The trial court in this child removal case properly accepted the respondent-mother’s waiver of a probable cause hearing and did not err by enforcing that waiver in subsequent proceedings, the Michigan Court of Appeals has ruled.

The Department of Health and Human Services (DHHS) and Child Protective Services (CPS) attempted to intervene in this case, In re Baby Doe, Minor (Docket No. 369542), after the respondent-mother reportedly was neglecting the medical needs of her infant child. At a preliminary hearing, counsel for the respondent-mother told the trial court that she was “prepared to waive the probable cause finding and ask the Court to authorize a petition and schedule a pretrial.” With the agreement of the parties, the trial court waived the preliminary hearing and scheduled a pretrial hearing. A jury ultimately found that “Baby Doe’s home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of [the respondent-mother], is an unfit place for the child to live in.” As a result, the Roscommon County Circuit Court assumed jurisdiction over the child.

The respondent-mother appealed. She claimed, among other things, that she was not advised of the procedural consequences of waiving the preliminary hearing and was not asked “whether her waiver was being done with knowledge of her rights and voluntarily.”

The Court of Appeals affirmed the trial court’s decision.

“Mother has failed to show that she is entitled to appellate relief …,” the Court of Appeals said. “Additionally, mother cannot show that relief is warranted based on the trial court’s acceptance of her waiver of a probable-cause hearing ….”

Judge Allie Greenleaf Maldonado, Judge Michael J. Kelly and Judge Michelle M. Rick were on the panel that issued the unpublished opinion.

Valid Waiver

On appeal, the respondent-mother argued the trial court erroneously accepted her waiver of a probable cause hearing and wrongly enforced the waiver in subsequent proceedings.

“We disagree,” the Court of Appeals said, noting that MCL 712A.2(b)(2) permits a trial court to assume jurisdiction over a minor child when the child’s “home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.”

The Court of Appeals also pointed out that MCL 712A.13a(9) says: “The court may order placement of the child in foster care if the court finds all of the following conditions:

(a) Custody of the child with the parent presents a substantial risk of harm to the child's life, physical health, or mental well-being.

(b) No provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from risk as described in subdivision (a).

(c) Continuing the child’s residence in the home is contrary to the child’s welfare.

(d) Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child.

(e) Conditions of child custody away from the parent are adequate to safeguard the child’s health and welfare.”

In addition, the Court of Appeals referenced MCR 3.965(B), explaining that it requires a trial court, “under Subrule (5), to ‘determine if the petition should be dismissed or the matter referred to alternate services’; under Subrule (6), to ‘advise the respondent of the right to the assistance of an attorney’ from the preliminary hearing forward; under Subrule (7), to ‘advise the respondent of the right to trial on the allegations in the petition’; and under Subrule (9), to ‘allow the respondent an opportunity to deny or admit the allegations and make a statement of explanation.’”

Meanwhile, MCR 3.965(C)(1) “authorizes a court to ‘receive evidence, unless waived, to establish that the criteria for placement’ are satisfied. (Emphasis added.),” the Court of Appeals observed. “And MCR 3.965(B)(13) authorizes the court to order placement on the basis of ‘determinations … previously made.’ In this case, as noted, the Crawford County court authorized removal, but declined to decide probable cause to authorize the petition, recognizing that Roscommon County was the proper venue. After the case was transferred to Roscommon County, mother’s attorney stated that ‘we’d be prepared to waive the probable cause finding and ask the Court to authorize a petition and schedule a pretrial.’ (Emphasis added). Under the doctrine of invited error, a party is foreclosed from raising as error on appeal any action or decision that the party successfully advocated below. … Thus, mother has waived her right to claim error based on the lack of a probable-cause hearing on appeal.”

Here, the respondent-mother asserted she was not advised of the procedural consequences of waiving the preliminary hearing and was not asked “whether her waiver was being done with knowledge of her rights and voluntarily,” the Court of Appeals said. “However, she does not assert that counsel failed to discuss the question of waiver with her, or otherwise acted contrary to her wishes in the matter. She likewise cites no authority indicating that the trial court has a duty to inform or question a respondent about their knowledge of what a waiver entails. For these reasons, mother’s claim must fail.”

Other Arguments

The Court of Appeals also rejected the respondent-mother’s claim that the trial court erred by not adhering to pertinent timing requirements and, as a result, the adjudication trial was improperly delayed.

“Mother frames this issue as one pertaining to constitutional due process, but invokes due process only by stating generally that the trial court infringed on her due process rights ‘by failing to timely proceed to trial without good cause, by making comments that downplayed the seriousness of the removal of her child and commenting the delay was in her best interest, and by failing to comply with interim court rules,’” the Court of Appeals wrote. “This argument presents no actual constitutional analysis, however, which consequently forestalls any need to engage in such analysis ourselves. … Moreover, mother cites no authority for the proposition that imperfect adherence to the timing requirements invalidates a court’s subsequent decision to assume jurisdiction over a child. For these reasons, mother has failed to show entitlement to appellate relief.”

The Court of Appeals additionally rejected the respondent-mother’s claim that the trial court erred by allowing the DHHS to present evidence relating to post-petition developments while not allowing her to do likewise. “Mother’s main appellate objection is that the challenged evidence concerned matters not alleged in the original petition,” the appeals court said. “This argument lacks merit. The operative petition at the time of the adjudication trial was the third amended petition, filed August 25, 2023. The allegations in that petition included several pertaining to the August 2023 probation compliance check, during which police collected drug paraphernalia and narcotics. For these reasons, mother cannot show that the trial court erred by admitting evidence related to the investigation of Doe’s father’s alleged probation violation.”

The respondent-mother further claimed the trial court wrongly allowed her to be questioned about her continuing relationship with Doe’s father, over her counsel’s objection. “Although th[e] questioning concerned post-petition developments, it did not run afoul of the rule confining the inquiry to the time of the petition because the testimony pertained directly to concerns raised in the third amended petition about criminality in the home environment,” the Court of Appeals said.

In addition, the respondent-mother contended the trial court agreed to limit certain parts of her testimony regarding her improved financial situation. “With her appellate objection, mother offers no analysis under In re Dearmon [303 Mich App 684 (2014)] to show that continued testimony about her improved circumstances would have been admissible as evidence relating to a condition alleged in the petition that happened to be obtained after the petition was filed,” the Court of Appeals said. “She also fails to explain what additional information she would have provided if allowed to do so. Instead, mother implies, without citing any authority, that the court violated a duty to treat all evidence relating to post-petition developments as either admissible or not, and therefore render consistent blanket rulings on such matters. But, as noted, In re Dearmon, … calls for distinguishing ‘evidence of an event supporting jurisdiction that was not alleged in a petition and evidence obtained after the petition was filed.’ Thus, mother’s observations regarding how the trial court limited her testimony regarding her improved situation have no bearing on the court’s decision to allow testimony about the investigation of the father’s alleged probation violations. Ultimately, mother has failed to show error requiring reversal.