In re Barber/Espinoza, Minors

• Docket No. 369359

• Published Sept. 19, 2024 (Gadola, Patel, Young)

• Lenawee County Circuit Court

Holding: The Trial Court plainly erred when it found that Respondent-Mother was not entitled to reasonable efforts to reunify Respondent-Mother with her minor children and when it failed to inform Respondent-Mother of her appellate rights following the Trial Court’s removal of the children from Respondent-Mother’s care.

Facts: Petitioner, DHHS, filed for permanent custody of the minor children based largely on a forensic interview given by one of the children, CB, where CB disclosed sexual abuse perpetrated on her on two different occasions by two different, adult men in the presence of Respondent-Mother. Respondent-Mother observed the abuse occurring to CB but did not attempt to stop it, and CB alleged that one of the incidents occurred because Respondent-Mother was attempting to secure drugs from one of the men. The Trial Court suspended Respondent-Mother’s parenting time and contact with both children following the preliminary hearing and the children were placed with their father. The Trial Court did not inform Respondent-Mother of her right to appeal the removal decision. The Trial Court later found, in a written order, that reasonable efforts to reunify were not required due to the presence of aggravated circumstances as defined by MCL 722.638. The Trial Court ultimately concluded that there was clear and convincing evidence to terminate Respondent-Mother’s parental rights pursuant to MCL 712A.19b(3)(b)(i), (b)(ii), and (j) and that termination was in the children’s best interests. Respondent-Mother subsequently appealed.

Key Appellate Rulings:

In order to be considered an aggravated circumstance within the meaning of MC 722.638(1) and (2), sexual abuse perpetrated on a child must be perpetrated by “a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child’s home.”

The Court of Appeals noted that, while “CB unquestionably alleged abuse via criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate,” which is indeed contained within the plain language of MCL 722.638(1)(a)(i), “this case is complicated because the sexual abuse was committed by an unrelated adult not living in the home.” The Court thus found that “the key question here is whether criminal sexual conduct against a minor child enumerated in MCL 722.638(1)(a)(ii) must be perpetrated by “a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child’s home” to constitute an aggravated circumstance warranting termination at the initial disposition.” The Court recognized that it had recently addressed this very question in two unpublished cases: In re Boyce (Docket No. 348992) released on January 23, 2020, and In re Bergren (Docket No. 354767) released June 3, 2021.

Although both Boyce and Bergren sported similar facts (both cases involved parents who knew the children had been sexually abused and either facilitated the abuse or failed to intervene to prevent future abuse), the Court came to different conclusions regarding the key question present here. The Boyce Court determined that “a parent subjects a child to aggravating circumstances when the child is sexually abused by an unrelated adult living outside the home if the parent placed the child at an unreasonable risk of harm because of their failure to take reasonable steps to intervene to eliminate that risk.” The Bergren Court conversely determined “that criminal sexual conduct as an aggravating circumstance must be committed by a parent or other specifically listed person in MCL 722.638(1)(a).” The Court in the present case determined that the Bergren interpretation of MCL 722.638 was proper, as Boyce “incorrectly conflates the related but distinct requirements of MCL 722.638(1) and (2).” The Court further found that allowing aggravating circumstances to apply generally to cases involving criminal sexual conduct perpetrated by anyone so long as the parent is “suspected of placing the child at an unreasonable risk of harm because of the parent’s failure to take reasonable steps to intervene to eliminate that risk” would render superfluous the Legislature’s clear instruction that the various categories of abuse be perpetrated by” those individuals listed in MCL 722.638. Because the Trial Court in this case committed the same error as the Bergren trial court, and because a petition for termination at initial disposition was not mandated under MCL 722.638(1), the Court of Appeals concluded that the Trial Court’s decision to terminate Respondent-Mother’s parental rights without first offering reunification services was clearly erroneous.

Plain error applies even where the appellant does not provide substantive argument regarding the prejudicial nature of a clear and obvious error.

The Court of Appeals held that, although there was a “dearth of published authority addressing the facts and question at issue and indeed [] conflicting unpublished authority on the matter,” the Trial Court’s error was sufficiently “clear and obvious” such that the plain error standard could apply. The Court determined as such due to the fact that its “interpretation of MCL 722.638 is clearly provided by the statute’s plain language and supported by a recent case from this Court.”

The Court went on to hold that the Trial Court’s error prejudiced Respondent-Mother, although Respondent-Mother did not provide “substantive argument that the outcome of this case was affected by the trial court’s error,” because “it is unclear how an aggrieved respondent could establish outcome-determinative error concerning the denial of reunification services altogether and (2) the error improperly dispensed with a critical aspect of a child protective proceeding—the requirement to offer reunification services before terminating parental rights—affected the very framework within which this case progressed, undermined the foundation of the rest of the proceedings, and impaired respondent’s fundamental right to direct the care, custody, and control over her children.” The Court further noted that, although there was no authority addressing this issue, “it logically appears that the error at issue would categorically deprive respondents the ability to challenge the case’s outcome, or at least hinder this ability, because reunification services are the primary avenue through which a parent can demonstrate their willingness and ability to parent once a case commences,” and Respondent-Mother could have demonstrated termination was not warranted if she had been provided the opportunity to participate in reunification services. The Court also found In re Ferranti, 501 Mich 1 (2019) to be analogous to the situation presented by this case, as, although the error here occurred before the adjudication, “the error nevertheless impaired respondent’s fundamental right to direct the care, custody, and control over her children in the first instance, and it unquestionably affected the very framework within which this case progressed and undermined the foundation of the rest of the proceedings.” As such, the Court of Appeals reversed the Trial Court’s order terminating Respondent-Mother’s parental rights.

Where a trial court fails to advise a respondent of their appellate rights, pursuant to MCR 3.965(B)(15), following removal of a child from the respondent’s care, the trial court plainly errs.

Although Respondent-Mother argued the Trial Court had violated MCR 3.971(B), the Court of Appeals held that rule was inapplicable, as Respondent-Mother did not offer a plea to establish the basis for jurisdiction. The Court of Appeals did conclude that, because the Trial Court failed to advise Respondent-Mother of her appellate rights following the removal of the children from Respondent-Mother’s care, the Trial Court had violated MCR 3.965(B), and the Trial Court’s violation of that court rule was a “clear or obvious error in the process” such that plain error standard applied.

Respondent-Mother presented two arguments as to why the Trial Court error prejudiced her. She first alleged prejudice “because the trial court’s failure to inform her of her appellate rights reinforced her belief that the trial court was not interested in being fair or objective with respect to her legal position.” However, because Respondent-Mother failed to demonstrate “how her personal beliefs about the trial court affected the outcome of the proceedings,” the Court did not agree Respondent-Mother was prejudiced on this ground. The Court reiterated that the Trial Court’s error prejudiced Respondent-Mother in relation to the aggravated circumstances issue, which impaired Respondent-Mother’s constitutional right to the care, custody, and control of her children. The Court thus determined that, had Respondent-Mother been advised of her appellate rights, she could have succeeded on the aggravated circumstances issue prior to the termination of her parental rights.