In Re T Barron Minor ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re T. BARRON, Minor. February 17, 2022
No. 357164
Hillsdale Circuit Court
Family Division
LC No. 20-000283-NA
Before: BORRELLO, P.J., and M. J. KELLY and REDFORD, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to the
minor child, TB. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
TB was born in May 2020, and a petition seeking the termination of respondent’s parental
rights to TB was submitted by the Department of Health and Human Services (DHHS) four days
later. The petition contained allegations involving respondent’s long history of substance abuse,
including allegations that she used marijuana and methamphetamine while pregnant with TB.
Following a hearing on emergency removal, TB was returned to respondent’s custody and the
matter was set for trial.
However, in July 2020, TB was removed from respondent’s care and an amended petition
was filed alleging that TB was taken to the hospital for “seizure like activity” and subsequently
tested positive for methamphetamine. The amended petition further alleged that respondent’s
behavior at the hospital led hospital staff to suspect that she was under the influence of drugs. An
emergency removal hearing was held, and the trial court ordered that TB be removed from
respondent’s custody and placed with the DHHS. TB was placed in foster care. TB’s foster family
placement also included half-siblings and cousins of TB.
Jurisdiction over respondent was subsequently established at the August 2020 adjudication
hearing by way of respondent’s plea of admission. The goal was changed to reunification. The
initial disposition hearing was held in September 2020, a review hearing was held in December
2020, and a combined review and permanency planning hearing was held in March 2021. At the
March hearing, the permanency planning goal was changed to adoption. Subsequently, a petition
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to terminate respondent’s parental rights to TB was filed. At the conclusion of the termination
hearing in April 2021, the trial court ordered that respondent’s parental rights to TB be terminated.
The trial court concluded that statutory grounds existed to terminate respondent’s parental rights
under MCL 712A.19b(3)(c)(i), MCL 712A.19b(3)(g), and MCL 712A.19b(3)(j). The trial court
also concluded that it was in TB’s best interests to terminate respondent’s parental rights.
Respondent now appeals, although respondent does not challenge the trial court’s
statutory-grounds or best-interests rulings.
II. FAILURE TO PLACE WITNESSES UNDER OATH
Respondent first argues that her substantive and procedural due process rights were
violated because the trial court “failed to have witnesses sworn and placed under oath” at the
September 2020 initial disposition hearing, the December 2020 review hearing, and the March
2021 review and permanency planning hearing.
Respondent acknowledges that she never raised this issue or objected to these allegedly
improper failures in the trial court.1 Our review is thus for plain error affecting substantial rights.
In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). Accordingly, respondent must
demonstrate “that (1) error occurred; (2) the error was ‘plain,’ i.e., clear or obvious; and (3) the
plain error affected [her] substantial rights.” In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019)
(citation omitted). The error must also “have seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings[ ] . . . .” Id. (citation and quotation marks omitted; alterations
and ellipsis in original).
Respondent’s appellate argument is difficult to understand. Seemingly, respondent argues
that the failure to have witnesses sworn and placed under oath at the three hearings denied
respondent the opportunity to cross examine the caseworkers who provided oral reports to the trial
court during these hearings.2 However, the record reflects that respondent was represented by
counsel at each of these hearings and the record does not indicate that respondent or her counsel
ever made a request for cross-examination during these hearings that was denied. Respondent’s
counsel also provided oral reports and arguments to the trial court on behalf of respondent.
The procedures governing dispositional hearings, dispositional review hearings for a child
in foster care, and permanency planning hearings are contained in MCR 3.973, MCR 3.975, and
MCR 3.9763 respectively. Pursuant to MCR 3.973(E)(1), the “Michigan Rules of Evidence do not
1
We also note that respondent did not even attend the September or December hearings, although
her counsel was present and participated at those hearings.
2
We additionally note that documentary exhibits were admitted into evidence at these hearings
and that respondent’s counsel specifically indicated on the record each time that he had no
objection to the admission of those exhibits.
3
The recent amendments to these court rules do not impact the relevant provisions for purposes
of this appeal.
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apply at the initial dispositional hearing, other than those with respect to privileges.” Additionally,
MCR 3.973(E) further provides in relevant part:
(2) All relevant and material evidence, including oral and written reports,
may be received and may be relied on to the extent of its probative value. The court
shall consider the case service plan and any written or oral information concerning
the child from the child’s parent, guardian, legal custodian, foster parent, child
caring institution, or relative with whom the child is placed. If the agency
responsible for the care and supervision of the child recommends not placing the
child with the parent, guardian, or legal custodian, the agency shall report in writing
what efforts were made to prevent removal, or to rectify conditions that caused
removal, of the child from the home.
(3) The parties shall be given an opportunity to examine and controvert
written reports so received and may be allowed to cross-examine individuals
making the reports when those individuals are reasonably available. [Emphasis
added.]
With respect to review hearings for children in foster care, MCR 3.975(E) provides in
relevant part:
Dispositional review hearings must be conducted in accordance with the procedures
and rules of evidence applicable to the initial dispositional hearing. The Agency
shall provide to all parties all reports in its case file, including but not limited to
initial and updated case service plans, treatment plans, psychological evaluations,
psychiatric evaluations, substance abuse evaluations, drug and alcohol screens,
therapists’ reports, contracted service provider reports, and parenting time logs. . . .
The reports that are filed with the court must be offered into evidence. The court
shall consider any written or oral information concerning the child from the child’s
parent, guardian, legal custodian, foster parent, child caring institution, or relative
with whom a child is placed, in addition to any other relevant and material evidence
at the hearing. . . .
With respect to permanency planning hearings, MCR 3.976(D)(2) provides that the
Michigan Rules of Evidence do not apply, other than those with respect to
privileges, except to the extent such privileges are abrogated by MCL 722.631. At
the permanency planning hearing all relevant and material evidence, including oral
and written reports, may be received by the court and may be relied upon to the
extent of its probative value. The court must consider any written or oral
information concerning the child from the child’s parent, guardian, custodian,
foster parent, child caring institution, or relative with whom the child is placed, in
addition to any other evidence offered at the hearing. The court shall obtain the
child’s views regarding the permanency plan in a manner appropriate to the child’s
age. The parties must be afforded an opportunity to examine and controvert written
reports received and may be allowed to cross-examine individuals who made the
reports when those individuals are reasonably available.
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Here, respondent does not cite any provision of the above court rules that was violated.
Respondent also does not argue that the procedures provided by the court rules are insufficient to
protect her due-process rights. In fact, respondent does not even cite these court rules, nor does
respondent attempt to apply the proper analytical test for determining whether the provided
procedures comport with due process. See, e.g., In re TK, 306 Mich App at 706-707 (applying the
test outlined in Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976)).
Accordingly, respondent has failed to meet her burden of demonstrating plain error regarding this
appellate issue. In re Ferranti, 504 Mich at 29.
Respondent has also essentially abandoned this issue on appeal by failing to cogently
develop an argument supported by relevant legal authority. “A party cannot simply assert an error
or announce a position and then leave it to this Court to discover and rationalize the basis for [her]
claims, or unravel and elaborate for [her her] argument, and then search for authority either to
sustain or reject [her] position.” In re TK, 306 Mich App at 712 (quotation marks and citation
omitted; alterations in original).
III. RELATIVE PLACEMENT
Next, respondent argues that the trial court failed to properly consider the maternal
grandmother as a relative placement for TB. The record reflects that TB’s maternal grandmother,
who lived in North Carolina, sought to have TB placed with her. This matter was discussed at
length at the September 2020 and December 2020 hearings. The prosecuting attorney, who
represented petitioner, provided the court with explanations of the discussions and actions that had
occurred related to exploring the possibility of placing TB with her maternal grandmother and the
decision to place TB in foster care. The maternal grandmother was also provided visitation with
TB. A home study was conducted of the maternal grandmother’s home that found the home
appropriate, but TB nonetheless remained placed with a foster family in Michigan. TB had been
placed with this foster family since her removal from respondent’s custody in July 2020.
Respondent asserts on appeal that the “DHHS failed in multiple ways to comply with MCL
722.954a.” Specifically, respondent claims that the DHHS failed to make a placement decision in
writing and provide reasons for the placement decision as required by MCL 722.954a(4) which
states:
(4) Not more than 90 days after the child’s removal from his or her home,
the supervising agency shall do all of the following:
(a) Make a placement decision and document in writing the reason for the
decision.
(b) Provide written notice of the decision and the reasons for the placement
decision to the child’s attorney, guardian, guardian ad litem, mother, and father; the
attorneys for the child’s mother and father; each relative who expresses an interest
in caring for the child; the child if the child is old enough to be able to express an
opinion regarding placement; and the prosecutor.
As with her first issue raised on appeal, respondent has not provided any evidence or
citation to the record that would support her contention that the DHHS failed to comply with MCL
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722.954a. There is also no indication in the record that respondent ever objected to the alleged
failure to comply with this statute. Thus, our review is for plain error. In re TK, 306 Mich App at
703. The record indicates that respondent and her counsel were aware of TB’s actual placement
and that the reasons for the placement decision were discussed on the record. Respondent
acknowledges as much by discussing some of these reasons in her appellate brief. Accordingly,
respondent has not established that any alleged error affected her substantial rights or seriously
affected the fairness, integrity or public reputation of the proceedings. In re Ferranti, 504 Mich
at 29. Respondent has therefore not shown that there was a plain error requiring reversal. Id.
Moreover, it appears that respondent believes that TB should have been placed with the
maternal grandmother rather than a foster family, but respondent offers no legal basis on which
we could conclude that she is entitled to appellate relief. There is no absolute requirement that a
child be placed with a relative caregiver. In re McIntyre, 192 Mich App 47, 52; 480 NW2d 293
(1991). Respondent’s failure to cogently support the factual and legal basis for her argument also
constitutes an abandonment of this issue on appeal. In re TK, 306 Mich App at 712.
Affirmed.
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
/s/ James Robert Redford
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