Opinion
No. 340258
06-19-2018
In re K. M. SPOONER, Minor.
UNPUBLISHED Ingham Circuit Court Family Division
LC No. 16-000425-NA Before: CAMERON, P.J., and METER and BORRELLO, JJ. PER CURIAM.
Respondent-father appeals as of right a trial court order terminating his parental rights to his daughter under MCL 712A.19b(3)(c)(i) and (g). We affirm.
I. FACTS
The petitioner in this case is the child's mother, who filed a petition in March 2016 requesting that the trial court exercise jurisdiction over the child and terminate respondent's parental rights at the initial dispositional hearing. Petitioner alleged that respondent had elected not to have any contact with the child for two years, then started showing interest only when petitioner advocated stepparent adoption involving her husband. Petitioner further alleged that the child suffered from a rare and severe form of epilepsy, where conventional medications were largely ineffective. Instead, a highly regulated ketogenic diet proved uniquely successful in controlling the child's seizures. According to petitioner, respondent had consistently refused to cooperate with maintaining the child's care, particularly the ketogenic diet.
At the adjudication trial, petitioner elaborated that the ketogenic diet required high fat, moderate protein, low carbohydrates, and very careful measuring and monitoring. Petitioner added that this included paying close attention even to non-food items the child might consume, or lotions or other products that might be applied to her skin. According to petitioner, even in response to involvement by Child Protective Services and court orders, respondent consistently declined to learn about, or acquire proficiency at administering, the ketogenic diet. Petitioner further testified that the child now had a feeding tube because she "was gagging and vomiting for most of her meals and medications," causing her seizures to return. Moreover, use of the feeding tube required close attention, including frequent cleaning and also use of a "feeding pump for any formula that she has to take in."
The pediatric neurologist serving as the child's "epilepsy doctor" described the child's condition as "myoclonic atonic epilepsy" and confirmed that standard medical approaches had failed to control it, but that the ketogenic diet showed promise. The doctor elaborated as follows:
[I]f the diet is not given specifically for a specific child at any given time, so a snack isn't followed or they don't eat all of their meal their ketones—which the ketogenic diet allowed the body to produce ketones—their ketones will drop and in [the subject child's] case that results in seizures. . . . [W]e have to monitor for things like cholesterol, selenium levels, zinc levels, vitamin B and so on and make sure that those are normal because there are other health consequences if they are not.The doctor further confirmed that "things like sunscreens, toothpaste, any lotions, any other medicines that are given, things like playing with [modeling clay] or finger paints kind of all affects ketosis," and anyone caring for the child needed to be trained in the administration and monitoring of the ketogenic diet and in use of the feeding tube. The doctor additionally reported that she had regular contact with petitioner, but none with respondent.
The trial court assumed jurisdiction over the child, but it denied petitioner's request to terminate respondent's parental rights at the initial dispositional hearing. Instead, the trial court adopted a case service plan for respondent. After several months, however, petitioner filed a supplemental petition again requesting termination of respondent's parental rights. After receiving reports and testimony indicating that respondent had failed to avail himself of opportunities to learn and practice what was required for the child's special diet, the trial court concluded that termination of respondent's parental rights was warranted under MCL 712A.19b(3)(c)(i) and (g), and termination of respondent's parental rights was also in the child's best interests. This appeal followed.
II. PROCEDURAL ISSUES
On appeal, respondent first argues that the proceedings below were rendered invalid for lack of service of process as required by statute and court rule. We disagree.
"A failure to provide notice of hearing by personal service on a noncustodial parent in a termination proceeding as required by statute . . . is a jurisdictional defect that renders all proceedings in the [trial] court void." In re Adair, 191 Mich App 710, 713-714; 478 NW2d 667 (1991). However, "[a]ny interested party who shall voluntarily appear in said proceedings, may, by writing, waive service of process or notice of hearing." MCL 712A.12.
Under MCR 3.920(B)(2)(b), "[i]n a child protective proceeding, a summons must be served on any respondent and any nonrespondent parent." Subrule (B) further sets forth what constitutes proper service of process. Subrule (F) provides for a party's waiver, in writing, of notice of hearing or service of process. Under subrule (G), "[a]fter a party's first appearance before the court, subsequent notice of proceedings and pleadings shall be served on that party or . . . on the attorney for the party . . . , except that a summons must be served for trial or termination hearing as provided in subrule (B)."
"[T]he general rules governing waiver of objections regarding service of process should apply in termination proceedings where a parent or parents appear at the termination hearing, challenge the petition for termination, and fail to challenge or raise the issue of lack of service of process arising out of prior proceedings." In re Gillespie, 197 Mich App 440, 447; 496 NW2d 309 (1992). Reflecting this reasoning is MCR 3.920(H), which states, in pertinent part, that "[t]he appearance and participation of a party at a hearing is a waiver by that party of defects in service with respect to that hearing unless objections regarding the specific defect are placed on the record."
In this case, although the lower court record does not include documentation of perfect success at providing respondent with notice of the proceedings, the register of actions does list several instances of service of process, or waivers of service, in connection with respondent. More significantly, despite intimations concerning being apprised of "the charges" or his rights, respondent nowhere asserts that at any moment in the proceedings below he was actually at some disadvantage for want of actual notice of the proceedings concerning him.
Of greater significance, however, and dispositive of this issue, is that respondent personally appeared, and participated in, all of the proceedings below. Further, respondent does not suggest that he ever expressed any concerns or objections about notice below, and our review of the record has brought no such activity to light. Because ordinary waiver rules apply in termination cases in connection with parents who "appear at the termination hearing, challenge the petition for termination, and fail to challenge or raise the issue of lack of service of process arising out of prior proceedings," In re Gillespie, 197 Mich App at 447, coming to bear here is the provision of MCR 3.920(H) according to which a party's "appearance and participation . . . at a hearing is a waiver by that party of defects in service with respect to that hearing unless objections regarding the specific defect are placed on the record." For these reasons, respondent fails to show that he is entitled to reversal because of a lack of notice in connection with the proceedings below.
Respondent also argues that his due process rights were violated for want of some separate proceeding, before the termination hearing, to determine whether to act on the supplemental petition reiterating the request for termination of his parental rights. We disagree.
The original goal of the March 2016 petition was termination of respondent's parental rights, but the trial court credited respondent's desire "to become a part of that child's life" upon announcing its assumption of jurisdiction over the child after the September 2016 trial proceeding, and decreed that respondent's effort in that regard was "going to be the next phase of this." Following a dispositional review hearing on December 14, 2016, the trial court issued an order in January 2017 allowing respondent the opportunity to participate in and benefit from services.
In arguing that the trial court denied him the benefit of required procedure in connection with proceeding to a termination hearing, respondent cites MCR 3.975(A), which states that a "dispositional review hearing is conducted to permit court review of the progress made to comply with any order of disposition and with the case service plan" and also for "court evaluation of the continued need and appropriateness for the child to be in foster care." In this case, however, the child has never been in foster care, so that provision is inapplicable. And the December 2016 dispositional review hearing complied with the subrule.
Without citing any authority, respondent implies that a trial court must convene a special dispositional hearing for purposes of deciding whether to proceed beyond continuing reunification efforts to a termination hearing. Respondent cites some of the trial court's notes to support the assertion that the trial court "did not evaluate whether reasonable efforts were being made to reunify [respondent] with his daughter," but instead "abdicated its statutory role . . . by asking [the juvenile court officer] to decide if a change of goal was necessary." We are not compelled to interpret the trial court's notes so cynically, but instead see them as indicating an appropriate concern for receiving the latest pertinent information in light of petitioner's renewed campaign for termination. For these reasons, we reject respondent's procedural bases for challenging the termination decision.
III. REUNIFICATION SERVICES
Respondent argues that the trial court properly terminated his parental rights without first offering him sufficient reunification services. We disagree.
Where a court has taken temporary jurisdiction over a child, reasonable efforts must be made to reunite the child with the natural parents unless doing so would cause a substantial risk of harm to the child's physical or mental well-being. Tallman v Milton, 192 Mich App 606, 614-615; 482 NW2d 187 (1992), citing MCL 712A.19a(4).
There is no dispute that the trial court denied petitioner's request to terminate respondent's parental rights immediately, and the trial court's September 26, 2016 order referred the parties and child "to the Intensive Neglect Services program under the supervision of [the] Senior Juvenile Court Officer" and directed the parties "to cooperate with the investigation and recommendations of the Senior Juvenile Court Officer." There is also no dispute that the trial court's order of January 19, 2017, adopted the officer's October 14, 2016 service plan, which was updated on April 4, 2017.
The initial case service plan called for respondent to "attend all medical appointments and be responsible for the proper medical care" of the child, and it directed respondent to "complete any medical training required regarding [the child's] medical needs." The updated service plan reported that petitioner "has helped train" respondent "with the ketogenic diet, but that the latter "has difficulties with measurements," has at times appeared "defensive" and "refused the input suggested," and "after several months of food preparation . . . continues to make mistakes while measuring the food." The update additionally reported that respondent "appears to have difficulty multi-tasking when he is preparing food" and "on one occasion, gave [the child] the wrong plate of food."
The record thus shows that respondent was offered opportunities to acquire expertise and proficiency in tending to the child's crucial and exacting dietary needs, but in eight months failed to show himself to be a reliable caregiver in that regard. To the extent that respondent was offered services, he substantially failed in his duty to benefit from them. See In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012) (where respondents in a child protection case have been offered reunification services, "there exists a commensurate responsibility on the part of respondents to participate in the services that are offered").
In arguing that he should have been offered services better tailored to his particular needs, respondent specifies a need for a psychological evaluation, treatment addressing his tendencies to engage in domestic violence, and his need for emotional stability. However, " '[t]he time for asserting the need for accommodation in services is when the court adopts a service plan . . . .' " Id. at 247, quoting In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000). In this case, respondent does not assert, and the record does not show, that respondent ever requested those or any other additional services below. And as petitioner points out, respondent's minimal progress with the services he was offered suggests that the trial court did not miss any promising opportunities to engineer a happier outcome for respondent for not having insisted that the services offered include counseling for anger management or emotional stability. Moreover, as petitioner also points out, nothing prevented respondent from seeking avenues for mitigating his anger or stability issues even apart from pressure from the court. For these reasons, respondent fails to show that the trial court erred in concluding that reasonable efforts had been made to reunify him with the child.
IV. STATUTORY GROUNDS FOR TERMINATION
Respondent argues that the trial court erred in concluding that termination of his parental rights was warranted under MCL 712A.19b(3)(c)(i) and (g). Again, we disagree.
Respondent grafts onto his argument for this issue the contention that the supplemental petition seeking termination was inoperative for failing to set forth some of the informational particulars required by the pertinent court rule. We could decline to consider this claim because respondent did not include this procedural issue in his statement of the questions presented. See Meagher v McNeely & Lincoln, Inc, 212 Mich App 154, 156; 536 NW2d 851 (1995) (this Court need not entertain arguments that are not germane to the issues set forth in the statement of questions presented); MCR 7.212(C)(5). In any event, the issue is without merit, given that the supplemental petition incorporates by reference the original petition, which respondent never challenged. --------
An appellate court "review[s] for clear error . . . the court's decision that a ground for termination has been proven by clear and convincing evidence . . . ." In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). "Clear error exists when some evidence supports a finding, but a review of the entire record leaves the reviewing court with the definite and firm conviction that the lower court made a mistake." In re Dearmon, 303 Mich App 684, 700; 847 NW2d 514 (2014). This Court must defer to the trial court's special opportunity to observe the witnesses. Id.
The trial court terminated respondent's parental rights under MCL 712A.19b(3)(c)(i) and (g), which authorize termination under the following circumstances:
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:The trial court summarized its findings as follows:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
* * *
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
The Court has been shown by clear and convincing evidence that the proofs supporting these statutes has been shown. This father was given the opportunity to demonstrate that he could comply with the necessities required by this child. What he has demonstrated is that the conditions that lead to this adjudication continue to exist and the Court is of the opinion that there was no reasonable likelihood that those conditions are ever going to improve within a reasonable period of time considering the child's age. Furthermore, . . . the father has failed to appreciate the necessity of following the correct medical diet needed by the child which has put the child's life at risk. In the alternative, the child's mother has been the necessary caregiver and has done everything and has tried to bring the father into the child's life. . . .
There is no dispute that the child suffered from an unusually severe epileptic condition, that the ketogenic diet had proved uniquely successful in controlling her seizures, and that administration of the ketogenic diet was an exacting undertaking.
In attempting to cast doubt on the trial court's conclusion that respondent had failed to "demonstrate that he could comply with the necessities required by this child," respondent concedes he did not acquire proficiency in the measuring or monitoring required for the ketogenic diet, admitting that he still "needs work." Respondent then attempts to minimize the significance of his persistent failures by suggesting that the use of a feeding tube and pump should have themselves stopped the seizures, such that respondent's own lack of follow-through posed no additional "substantial" risk to the child. The ketogenic diet and the operation of the feeding tube and the pump are critical issues that directly relate to the child's health. They require real expertise and close attention. We reject respondent's suggestion that those same devices could shield the child from the hazards of respondent's continued disinclination to develop and apply the expertise and proficiency required to maintain that regime for the child.
Because a proper understanding of the child's special ketogenic diet and an ability to proficiently follow the attendant requirements and procedures for monitoring and administering that diet were critical to the child's proper care and well-being, and because respondent failed to make satisfactory progress in achieving either of these goals after more than eight months, the trial court did not clearly err in finding that the condition that led to the adjudication continued to exist and was not reasonably likely to be rectified within a reasonable time, or in finding that respondent was unable to provide proper care and custody and there was no reasonable expectation he would be able to do so within a reasonable time considering the child's age. Therefore, respondent has failed to show that the trial court clearly erred in concluding that termination of his parental rights was warranted under MCL 712A.19b(3)(c)(i) and (g).
V. BEST INTERESTS
"If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). Respondent argues that the trial court erred in concluding that termination of his parental rights was in the child's best interests. We disagree.
A trial court must order the termination of a respondent's parental rights if the it finds by a preponderance of the evidence based on the record as a whole that termination is in the child's best interest. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). This Court reviews the trial court's determination of a child's best interests for clear error. Id. "A trial court's decision is clearly erroneous '[i]f, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.' " In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012) (citation omitted).
The trial court explained its best-interest determination as follows:
In determining the best interest of this child the termination of the father's rights are required because this child needs stability and needs conditions to be rectified. Respondent father does not seem to change his ways. He has been given eight months and changes haven't been made with him not complying with the ketogenic diet as required, which puts the child's life at risk.The trial court additionally held that petitioner "has been the necessary caregiver and has done everything and has tried to bring the father into the child's life," and that "[t]here is nothing further that she could have done to bring father and daughter closer together."
Respondent's argument disputing the trial court's conclusion in this regard consists of a single paragraph of unsupported assertions. Among them, respondent's attempt to blame petitioner or the trial court for any problems he had developing a bond with the child bears minimally on the question of the child's best interests, and, by stating that he was "making progress" and "continuing to build his relationship" with the child, respondent admits that a close father-daughter bond was at most a work in progress. Even such commendable progress, however, hardly neutralizes, or otherwise counterbalances, the trial court's conclusion that after "eight months . . . changes haven't been made with him not complying with the ketogenic diet," failure to adhere to which "puts the child's life at risk."
For these reasons, respondent has failed to show that the trial court clearly erred in determining that termination of his parental rights was in the child's best interests.
Affirmed.
/s/ Thomas C. Cameron
/s/ Patrick M. Meter
/s/ Stephen L. Borrello