Opinion
No. 328664
04-26-2016
In re KREMER/MCBEE, Minors.
UNPUBLISHED Oakland Circuit Court Family Division
LC No. 14-817643-NA Before: MURRAY, P.J., and STEPHENS and RIORDAN, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court order terminating his parental rights to the minor children, NK and MM, under MCL 712A.19b(3)(g) (failure to provide proper care or custody), (h) (imprisonment for more than two years), (j) (reasonable likelihood of harm), and (n) (conviction of specified offense and continuation of parent-child relationship would cause harm). We affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
NK and MM were born during respondent's relationship with the children's mother. Respondent and the mother lived together for approximately five years, but never married. Following their separation in 2011, the parties initiated family court proceedings concerning the children, which resulted in a custody agreement under which the parties shared joint legal custody, the mother had sole physical custody, and respondent had scheduled parenting time.
In March 2014, petitioner, the Department of Health and Human Services ("DHHS"), filed a petition requesting that the trial court exercise jurisdiction over the children and terminate respondent's parental rights pursuant to MCL 712A.19b(3)(g) and (3)(j). The petition was based on allegations that respondent had subjected the children to a substantial risk of harm and that his home was unfit for the children because he had sexually abused a minor child. In particular, the petition alleged that it was contrary to the children's welfare to remain in his care because
References to DHHS include its predecessor, the Department of Human Services ("DHS").
[respondent] sexually abused a minor child residing in his home. The sexual abuse included penetration. [NK and MM] had regular and frequent visitation
with [respondent] in his home with the other minor child. Based on the above, it is contrary to the welfare of the children to reside in their father's home or have visitation/contact with their father as [respondent's] actions place [the children] at a substantial risk of harm threatening their life, safety, and well-being.Additionally, the petition alleged that pornographic material was found in respondent's possession, and that he showed this material to the minor child that was residing with him. Further, it alleged that respondent "placed his biological children in a situation that a reasonable person would realize requires actions or judgment beyond their age or maturity level[.]" The petition indicated that respondent had been charged with first-degree criminal sexual conduct ("CSC") and was incarcerated in the Oakland County Jail.
After the petition was authorized, respondent's parenting time was suspended, and the children remained placed with their mother. In conjunction with the suspension of respondent's parenting time, the trial court expressly ordered no telephone contact between respondent and NK and MM.
Ultimately, respondent was convicted of first-degree CSC in the Oakland County Circuit Court and sentenced to a minimum of 25 years and a maximum of 60 years in prison. After several adjournments of the child protective proceedings due to adjournments of respondent's trial and sentencing in his criminal case, the trial court accepted respondent's no contest plea to the trial court's exercise of jurisdiction over the children under MCL 712A.2(b)(1) and (2) and statutory grounds for termination under MCL 712A.19b(3)(g), (h), (j), and (n)(i) in December 2014.
Before respondent entered his plea, the trial court granted petitioner's motion to amend the termination petition to add MCL 712A.19b(3)(h) and (3)(n) as statutory grounds for termination.
In February 2015, respondent filed a motion to withdraw his no contest plea, contending that he did not enter the plea knowingly and voluntarily because he did not fully understand the consequences of the plea under the circumstances. In particular, he claimed, inter alia, that (1) he did not realize that he could not later contest the factual basis of the petition, specifically the truth of the allegations giving rise to his CSC conviction; (2) he did not realize the way in which his defense would be limited at the best interest hearing, as the court would not be able to consider his claim that his criminal conviction was erroneous; (3) he did not completely understand his constitutional rights; and (4) he did not fully understand the significance of a trial with regard "to factual basis and statutory basis." Thus, respondent argued that he lost the ability to elicit testimony regarding the circumstances of the CSC allegations, particularly inconsistencies in the witnesses' testimony. He contended this was necessary in order for the court to have a full understanding of the criminal allegations and, therefore, hold a fair hearing on the best interests of the children. Respondent ultimately contended that the trial court should have stated at the plea hearing that he was giving up his right to cross-examine witnesses regarding the circumstances that gave rise to the CSC charges. Accordingly, he sought to withdraw his plea so that he could fully present his defense and defend his constitutional and parental rights, arguing that a withdrawal of the plea would not jeopardize the children in any way, would not prejudice the prosecution, and would be in the interest of justice.
Respondent especially took issue with the fact that petitioner's motion to exclude the testimony of the CSC victim, the victim's mother, and the victim's sister could preclude him from presenting testimony on this subject at the best interests hearing.
In response, petitioner argued that the court should deny respondent's motion to withdraw his plea, as fair and just reasons for withdrawal were not present. Petitioner also argued that inconsistencies in the CSC victim's testimony had no relevance to the best interests of the children in this case and that respondent was, in effect, attempting to relitigate the criminal case. Additionally, petitioner contended that the trial court complied with MCR 3.971, adequately advised respondent of his rights, and explained all of the consequences of a no contest plea on the record. Petitioner also emphasized that respondent answered in the affirmative when he was questioned on the record regarding whether his plea was knowing and voluntary and whether he understood the rights that he was giving up. Thus, petitioner contended that respondent was aware of and understood his act of entering a plea and that this decision was voluntary. It also argued that allowing respondent to withdraw the plea would jeopardize the best interests of the children because they need finality in this case, especially given the length of the proceedings thus far.
At a hearing in April 2015, the referee denied respondent's motion to withdraw his plea, finding that the advice of rights at the plea hearing fully complied with the court rules. He concluded that the information provided regarding the termination process was complete and was presented to respondent at a moderate pace. He also noted that respondent was given "every opportunity to reconsider the issues." Additionally, the referee rejected respondent's argument that the referee should have told him which witnesses could have been called during the trial or statutory basis hearing. Likewise, he concluded that respondent's claim that he did not fully understand the ramifications of the plea was "hard to believe based upon the information that was presented on the [r]ecord." Accordingly, he found that the plea was knowing, voluntary, and accurate given respondent's representations at the plea hearing.
The trial court also heard arguments regarding petitioner's motion to exclude the testimony of the CSC victim, the victim's mother, and the victim's sister, which respondent wished to present at the best interest hearing in order to demonstrate inconsistencies in the victim's CSC allegations and thereby present "a full range of testimony" regarding respondent's character as a father. The trial court granted petitioner's motion.
A lengthy hearing on the best interests of the children was held over three days in April and May 2015. The parties presented numerous witnesses, including testimony from (1) Dr. Melissa Sulfaro, the senior psychologist at the Oakland County Psychological Clinic, who conducted psychological evaluations of respondent, NK, and MM; (2) Heather Mauk, a CPS supervisor; (3) Amanda Schmidt, a CPS specialist with DHHS; (4) the children's paternal grandmother; (5) the children's mother; and (6) the children's maternal aunt. The parties also stipulated to the admission of a written statement prepared by NK.
After hearing the testimony, the referee found that petitioner had proven, by a preponderance of the evidence, that termination of respondent's parental rights was in the best interest of the children "[f]rom a psychological perspective and from a control perspective over the children." In rendering his decision, the referee made numerous credibility and factual determinations. Consistent with the referee's findings, the trial court entered an order terminating respondent's parental rights in June 2015.
II. WITHDRAWAL OF PLEA
Respondent first argues that the trial court erred in denying his motion to withdraw his no contest plea. We disagree.
A. STANDARD OF REVIEW
A trial court's decision regarding a respondent's motion to withdraw a plea is reviewed for an abuse of discretion. In re Zelzack, 180 Mich App 117, 126; 446 NW2d 588 (1989); see also People v Brown, 492 Mich 684, 688; 822 NW2d 208 (2012). "An abuse of discretion occurs when the trial court chooses an outcome that falls outside the range of principled outcomes." In re Utrera, 281 Mich App 1, 15; 761 NW2d 253 (2008) (quotation marks and citation omitted).
B. ANALYSIS
MCR 3.971 governs pleas during the adjudicative stage of child protective proceedings. Additionally, in In re Zelzack, 180 Mich App at 125, we held that the rules governing pleas in criminal cases may be applied by analogy in termination cases. In criminal cases, a defendant does not have an absolute right to withdraw a plea after the trial court has accepted it. People v Harris, 224 Mich App 130, 131; 568 NW2d 149 (1997). Pursuant to MCR 6.310(B), which applies to the withdrawal of pleas in criminal cases, "a motion to withdraw a plea before sentencing should only be granted if the defendant is able to show that withdrawal of the plea is 'in the interest of justice,' meaning that the defendant has to articulate 'a fair and just reason' for withdrawing the plea." People v Fonville, 291 Mich App 363, 377-378; 804 NW2d 878 (2011). Accordingly, when "a defendant moves to withdraw the plea before sentencing, the burden is on the defendant to establish a fair and just reason for withdrawal of the plea; the burden then shifts to the prosecutor to establish that substantial prejudice would result from allowing the defendant to withdraw the plea." People v Jackson, 203 Mich App 607, 611-612; 513 NW2d 206 (1994); see also Harris, 224 Mich App at 131. The ultimate question in this case is whether respondent's decision to enter a plea was knowing and voluntary. See MCR 3.971. Cf. MCR 6.302(A); People v Cole, 491 Mich 325, 330-331; 817 NW2d 497 (2012).
Here, the reason identified by respondent for withdrawing his plea is that he did not fully understand the rights that he was surrendering when he entered the plea, particularly the fact "that he would not be allowed to pursue inquiry from the witnesses in the criminal proceedings to attack their credibility as to the criminal sexual assault charge, which was the only basis for the initial petition for termination against him." "[A] claim of actual innocence or a valid defense to the charge" may constitute a fair and just reason for withdrawing a plea. Fonville, 291 Mich App at 378. However, respondent fails to identify any authority in the lower court or on appeal showing that a collateral attack on a criminal conviction in this manner is permissible in a termination proceeding. In People v Iannucci, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 323640); slip op at 1-2, the defendant, who was convicted of failure to pay child support under the felony nonsupport statute, MCL 750.165(1), attempted to challenge the amount of child support that he was ordered to pay in the underlying support order in an appeal from his criminal conviction. After discussing the jurisdiction of the family division of the circuit court over such orders, we stated:
An impermissible "collateral attack occurs whenever challenge is made to judgment in any manner other than through direct appeal." People v Howard, 212 Mich App 366, 369; 538 NW2d 44 (1995). This is precisely what defendant seeks to do here. Defendant has not set forth any authority in the felony nonsupport statute, or in any of the cases interpreting it, that would permit him, in this criminal case, to collaterally attack the underlying support order. [Id. at ___; slip op at 2.]Similarly, here, respondent has failed to demonstrate that a collateral attack on his criminal conviction was permissible during the termination proceedings. See also SS Aircraft Co v Piper Aircraft Corp, 159 Mich App 389, 393; 406 NW2d 304 (1987).
Nevertheless, respondent's claim that he was unaware of the consequences of his plea is unsupported by the record. At the plea hearing, respondent's counsel stated, in indicating that he had no objection to petitioner's amendment of the termination petition to add MCL 712A.19b(3)(h) and (3)(n)(i) as statutory grounds for termination, that he had "explained to [his] client that these statutory basis [sic] that have been cited correlate with the factual situation of his conviction[.]" After the referee permitted amendment of the petition, he confirmed with respondent that he wished to enter a no contest plea with regard to the trial court's jurisdiction and the statutory grounds for termination, but wanted to retain the right to a hearing on whether termination of his parental rights was in the best interests of the children. The referee then explained the stages of termination proceedings to respondent, specifically describing respondent's rights and petitioner's burden during each stage. Most notably, the referee twice reiterated that respondent had a right to have his attorney cross-examine any witnesses against respondent, a right to call witnesses on his behalf, a right to have the court order witnesses to appear on his behalf, and a right to testify on his own behalf. The referee expressly stated, "If you plead no contest to the allegations in the petition regarding both jurisdiction and statutory basis [sic], we wouldn't go through all the trial proceedings on those issues." (Emphasis added.) After being sworn, respondent confirmed that he heard the information provided by the referee regarding a trial on the issue of jurisdiction and a hearing on the statutory grounds for termination. Respondent also expressly confirmed that "[he] would be giving up those two findings if [he] pleaded no contest to the allegations in the petition[.]" Additionally, he stated that he understood that pleading no contest was "essentially an irrevocable decision," and that "[j]ust changing your mind at a later date would not result in . . . allowing you to withdraw your plea[.]"
On this record, especially given the referee's clear statement that a trial would not be held on the issues in the petition if respondent pleaded no contest to the allegations, it is apparent that the trial court thoroughly informed respondent of his rights and the consequences of his plea. This warning plainly apprised respondent of the fact that he was giving up his right to later challenge the CSC allegations and conviction, which comprised the basis of the trial court's jurisdiction over the children and the statutory grounds for termination. Additionally, the record shows that respondent expressly and personally confirmed that he wanted the court to accept his plea of no contest to the allegations in the petition—which, again, were allegations of criminal sexual conduct—after the referee explained that a trial would not be held on those issues.
Moreover, it is significant to note that the referee's statements on the record were consistent with the requirements of MCR 3.971(B), which apply to a plea entered during the adjudicative stage of the proceedings. The referee also provided additional information that again informed respondent of his rights and the consequences of entering a no contest plea to the statutory grounds for termination. As such, it is apparent from the record that the referee appropriately tailored the requirements of MCR 3.971(B), which apply to a plea entered during the adjudicative stage of the proceedings, thereby providing information regarding respondent's rights and the consequences of entering a plea in a way that ensured fundamental due process and fairness. Further, there is nothing in the record suggesting that respondent's ability to understand these rights or his ability to make an informed and voluntary decision were impaired. See MCR 3.971(C)(1).
Because MCR 3.971(B) describes rights afforded during the adjudicative phase, see In re AMAC, 269 Mich App 533, 536; 711 NW2d 426 (2006), strict compliance with MCR 3.971(B) is not possible during the dispositional phase. However, under MCR 3.902(A), a trial court must construe the court rules in a manner that "secure[s] fairness, flexibility, and simplicity. The court shall proceed in a manner that safeguards the rights and proper interests of the parties." Consistent with this rule, the record shows that the referee actively ensured that respondent understood his rights before entering his no contest plea in this case.
In an analogous setting, we similarly rejected a defendant's claim that he was confused about the length of his sentence when he entered a plea, finding that such a claim was unsupported by the record when (1) the defendant was present while his attorney and the court discussed the length of his sentence, (2) the defendant indicated that he understood the nature of his plea, and (3) the defendant stopped the proceedings to ask his attorney a question. People v Everard, 225 Mich App 455, 460-461; 571 NW2d 536 (1997). Contrary to the defendant's claims, we concluded, "It appears that defendant simply changed his mind between the date of his plea and the date for sentencing. This was not a valid basis for withdrawing his plea." Id. at 461. In the instant case, it appears from the record that respondent merely changed his mind following the plea proceeding and moved to withdraw his plea based on a change of heart. Cf. In re Burns, 236 Mich App 291, 293; 599 NW2d 783 (1999); In re Curran, 196 Mich App 380, 384-385; 493 NW2d 454 (1992) (holding that a trial court did not abuse its discretion when it denied a parent's request for relief because a parent is not entitled to revoke a release of his or her parental rights solely based on a change in heart).
In sum, we agree with the trial court that respondent's claims are spurious. Especially given the referee's statements on the record, it is clear that respondent did not believe that he could plead no contest to the criminal allegations in the petition and then subsequently attempt to collaterally attack the same allegations by challenging the credibility of the witnesses in the criminal case. Likewise, given respondent's express confirmation that he understood the consequences of his plea in light of the information provided by the referee, the trial court's denial of respondent's motion to withdraw his plea was not outside the range of principled outcomes. See In re Utrera, 281 Mich App at 15.
To the extent that respondent suggests that this issue encompasses a constitutional component or involves his constitutional rights, he has abandoned such a claim by failing to raise it in the statement of questions presented, failing to cite any authority, and failing to adequately explain his claim. See MCR 7.212(C)(5); In re TK, 306 Mich App 698, 712; 859 NW2d 208 (2014); Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496, 543; 730 NW2d 481 (2007), lv gtd in part 480 Mich 910 (2007). --------
III. BEST-INTEREST DETERMINATION
Respondent next argues that the trial court clearly erred in concluding that termination of his parental rights was in the best interests of the children. We disagree.
A. STANDARD OF REVIEW
We review for clear error a trial court's best-interest determination. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014), citing MCR 3.977(K). "A finding is clearly erroneous [if] although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010) (quotation marks and citation omitted; alteration in original); see also In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004) ("A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." [Emphasis added.]).
B. ANALYSIS
Pursuant to MCL 712A.19b(5), "[t]he trial court must order the parent's rights terminated if the [petitioner] has established a statutory ground for termination by clear and convincing evidence and it finds from a preponderance of the evidence on the whole record that termination is in the children's best interests." In re White, 303 Mich App at 713 (footnotes omitted).
To determine whether termination of parental rights is in a child's best interests, the court should consider a wide variety of factors that may include "the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, and the advantages of a foster home over the parent's home." The trial court may also consider a parent's history of domestic violence, the parent's compliance with his or her case service plan, the parent's visitation history with the child, the children's well-being while in care, and the possibility
of adoption. [Id. at 713-714 (footnotes omitted); see also In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012).]"[T]he fact that the children are in the care of a relative at the time of the termination hearing is an explicit factor to consider in determining whether termination was in the children's best interests." In re Olive/Metts Minors, 297 Mich App at 43 (quotation marks and citation omitted).
Here, the referee found that petitioner had proven, by a preponderance of the evidence, that termination of respondent's parental rights was in the best interests of the children "[f]rom a psychological perspective and from a control perspective over the children," and the trial court adopted the referee's findings. In making his determination, the referee placed significant emphasis on Sulfaro's psychological evaluation of respondent and her ultimate conclusion that respondent should not have contact with the children in the future. Additionally, the referee stated that it specifically considered the following factors in making its decision: (1) the children live with their mother; (2) "[respondent] is likely to be incarcerated for a very lengthy period of time"; (3) "the children are bonded to [respondent] by all accounts, although that bond has reportedly lessened over the last year"; and (4) the "Guardian ad Litem argued vehemently that [respondent's] rights should be terminated." On the record, the referee also identified the following factors in concluding that termination was in the children's best interests: "future undetermined behavior on behalf of father, manipulation, father's concern for himself as opposed to his concern for the children, [and] father's failing [sic] to acknowledge how his actions have impacted his family members, particularly his children." Further, the referee noted that "[respondent] has been convicted of a particularly heinous crime, in which his actions evidence disturbing personality traits." Additionally, he specifically found that respondent was aware of the no contact order and violated it, manipulating other family members in the process.
The trial court did not clearly err in concluding that termination of respondent's parental rights was in the best interests of the children. See MCR 3.977(K); In re White, 303 Mich App at 713. The majority of respondent's arguments on appeal relate to his claim that his witnesses, i.e., the children's mother and paternal grandmother, were more credible than other witnesses because they had the most contact with the children. In particular, respondent contends that the evidence indicating that the children would be harmed if respondent's rights were not terminated, including Sulfaro's testimony, was "[i]nsufficient and unconvincing." As such, respondent effectively challenges the trial court's credibility determinations, which found the testimony of Sulfaro, Mauk, and Schmidt most credible and persuasive, the testimony of the grandmother generally credible, and the testimony of the children's maternal aunt only slightly more credible than the testimony of the children's mother, which it found concerning. However, it is not our role to judge the credibility of the witnesses, and deference must be given to the trial court's credibility assessments given its unique opportunity to observe the witnesses and judge their truthfulness. See In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989); In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005). Thus, to the extent that respondent contests the trial court's credibility determinations, we reject respondent's claims.
The rest of respondent's arguments center on the claim that termination of respondent's parental rights was not in the best interests of the children in light of respondent's love for the children, the children's bond with respondent, and the possibility that the children could enjoy a future relationship with him. The trial court expressly recognized this bond. Likewise, the witnesses' testimony consistently indicated that respondent had a relationship with the children, especially prior to his incarceration, and that the children expressed sadness and a sense of loss arising from his absence. However, the trial court did not clearly err in concluding that this bond had decreased over time in light of Sulfaro's and Mauk's testimony regarding the children's demeanor and statements during their interviews, which the trial court found credible, and the statements of other witnesses, including the children's mother and grandmother. See In re Miller, 433 Mich at 337; In re Fried, 266 Mich App at 541.
Additionally, it did not clearly err in concluding that other factors outweighed this bond, such that termination was in the best interests of the children. Although respondent argues that there was no evidence that he physically or emotionally harmed NK or MM, significant evidence was presented, consistent with the trial court's credibility determinations, demonstrating that respondent's past behavior and psychological evaluation indicated a strong potential for future harm. Likewise, the record undermines respondent's claim that no evidence was presented indicating that he failed to conduct himself appropriately as a parent. Testimony at the best interest hearing revealed instances of domestic violence between respondent and both the children's mother and respondent's subsequent girlfriend, as well as instances when respondent implemented questionable disciplinary techniques with another child in the household, such as locking the child out of the house and pulling him down the stairs. The children's aunt also expressed concerns regarding the children's behavior after they visited respondent and discussed improvements in their behavior following his incarceration.
Moreover, despite some witnesses' testimony regarding harm that the children would experience if respondent's rights were terminated and the importance of the children being able to maintain a relationship with respondent by phone or mail during his incarceration, the allegations giving rise to respondent's CSC conviction, which included sexually abusing a young child close in age to MM and NK and exposing that child to pornography, provided additional evidence of a likelihood of future harm if the children were returned to respondent's care. Mauk and Sulfaro similarly testified that disturbing personality traits were revealed by the circumstances of respondent's first-degree CSC conviction. Contrary to respondent's claims on appeal, the mere fact that a custody order was in place does not undermine a finding that termination was in the best interests of the children in light of this evidence, especially given the mother's stated belief that respondent was innocent despite his conviction.
Further, the record demonstrates that respondent knowingly violated the no contact order and used other family members to accomplish this goal. Sulfaro testified that this conduct indicated that respondent disregarded rules, indicated a danger of noncompliance with court orders in the future, and revealed that respondent focused on his own desires regardless of instructions. Mauk similarly expressed concerns based on this conduct.
In addition, consistent with the trial court's findings, Sulfaro testified that the personality assessment results and her interview with respondent indicated that respondent exhibited "self-focused[,] . . . narcissistic, possibly manipulative, hyper-vigilant, and mistrusting" tendencies, which she found concerning. She also stated that the results of these assessments were consistent with family members' descriptions of respondent and instances of respondent's conduct, which revealed controlling and manipulative tendencies. Sulfaro stated that she would be alarmed if respondent was allowed to have contact with the children in light of her concerns regarding the physical safety and emotional well-being of the children, the effect on the children of seeing respondent incarcerated, the nature of the allegations underlying his conviction, and the fact that there was continued phone contact despite the no contact order. Moreover, other testimony revealed other instances of controlling behaviors and other troublesome conduct.
Finally, given the children's adjustment to respondent's absence and his minimum sentence of 25 years in prison, termination of respondent's parental rights was consistent with the children's needs for permanency and stability, especially because of his inability to play a significant role in their lives or provide for them for the duration of their childhood. Multiple witnesses, including the children's mother, also testified that they believed that visiting respondent in prison would be harmful to the children.
Thus, the trial court did not clearly err in finding, by "a preponderance of the evidence on the whole record[,] that termination is in the children's best interests." In re White, 303 Mich App at 713 (footnotes omitted).
IV. CONCLUSION
The trial court did not abuse its discretion in denying respondent's motion to withdraw his no contest plea. Likewise, the trial court did not clearly err in concluding that termination of respondent's parental rights was in the best interests of the children.
Affirmed.
/s/ Christopher M. Murray
/s/ Cynthia Diane Stephens
/s/ Michael J. Riordan