In Re Zarske Minors ( 2021 )

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UNPUBLISHED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 ZARSKE, Minors. November 4, 2021
No. 356620
Alpena Circuit Court
Family Division
LC No. 17-007323-NA
Before: MARKEY, P.J., and BECKERING and BOONSTRA, JJ.
PER CURIAM.
Respondent-father appeals as of right the trial court order terminating his parental rights to
his two minor children, RZ and TZ, pursuant to MCL 712A.19b(3)(h) (parent is imprisoned for
such a period that the child would be deprived of a normal home for more than two years). On
appeal, respondent argues that the trial court assumed jurisdiction without a proper factual basis,
that the court erred by finding a statutory ground for termination established by clear and
convincing evidence, and that termination was not in the best interests of the children. We
disagree.
I. FACTUAL BACKGROUND
In November 2017, petitioner, the Department of Health and Human Services (DHHS),
filed a petition seeking the removal of the children from the care of respondent and his wife
because they produced and consumed methamphetamine in the home while the children were
asleep. Respondent entered a no-contest plea on the basis of portions of the police report that were
contained in the removal petition. Counsel for DHHS stated that the report would be provided to
the court after the hearing. However, apparently this police report was never provided to the trial
court and entered into the record. Initially, respondent participated in services, including therapy,
substance abuse treatment, and overnight parenting time. He was eventually sentenced to 4 to 20
years’ imprisonment on the basis of charges stemming from the methamphetamine use and
production. He continued to participate in the services available to him in prison. During
respondent’s incarceration, the children’s mother voluntarily released her parental rights to the
children. In December 2020, DHHS filed a supplemental petition seeking the termination of
respondent’s parental rights due to the length of time the children had been in care, and
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respondent’s inability to participate in services and therefore eliminate the barriers that brought
the children into care.
At the termination hearing, caseworker Heather Burkhardt-Watson testified in regard to
her attempts to place the children with relatives. The children’s paternal grandmother initially
declined placement because she was already caring for a family member with special needs and
she was unable to devote the necessary attention to the children. The children’s grandmother
eventually decided that she wanted to maintain a grandmotherly role and that the children were
receiving the best care from their foster parents. Watson also spoke to the children’s paternal aunt,
who initially did not believe that she could properly accommodate the children with her work
schedule, but she later felt that the children were in the best possible placement with the foster
parents.
Watson explained that RZ and TZ were placed with the foster family in December 2017,
and had remained there since. She testified that the children were “doing very well” and that they
viewed the placement as their home. Watson testified that RZ was nearly five years old and that
TZ was three years old. She stated that the paternal grandmother maintained a strong relationship
with the children while they were in their placement. She testified that the foster parents had to
lead the conversation when respondent would call because the children were not interested in
talking with him. Watson testified that respondent had been incarcerated since March 2019, and
that his earliest release date was February 2023. As a result, the children would be seven and five
years old, respectively, at the time of his release. She opined that once respondent was released
from prison, he would have to maintain sobriety, housing, and employment, in addition to
reconnecting with the children, which could possibly take another two or three years. The children
had “a very close bond” with their foster parents, they viewed their foster father as their father,
and “they get along great” with the older children who were in the home. According to Watson,
it “would be tremendously traumatizing to” the children to be removed from the foster home and
placed with respondent when he was released from prison and that it would not be “fair to them to
not have a permanent home, and to wonder for the next two years as they get older, as their [sic]
able to understand more, the fact that they may have to leave the only home they’ve ever known.”
She also expressed concern in regard to respondent’s criminal history, and whether the children
would have to be removed again due to future drug use or other criminality.
Respondent affirmed that his earliest release date from prison was February 2023. He
believed that he had the tools that he needed to be successful upon his release. He testified that he
had employment with a construction company lined up and that he planned to live with his parents.
The children were familiar with their grandparents’ home and would be comfortable there.
Respondent determined that the foster parents were “good people,” that he would want the children
to continue to have a relationship with them, and that he would want to gradually regain custody
of them. In terms of relative placement, respondent explained that he spoke to his mother and she
agreed to take the children if it would help him keep his parental rights. His mother did not testify
at the termination hearing.
At the conclusion of the hearing, the trial court entered an order terminating respondent’s
parental rights. He now appeals.
II. DISCUSSION
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A. NO-CONTEST PLEA
Respondent argues that the trial court erred by accepting a no-contest plea without
establishing a proper factual basis. We disagree.
Respondent “did not move to withdraw [his plea] in the trial court or otherwise object to
the” factual basis supporting the plea. In re Pederson, 331 Mich App 445, 462; 951 NW2d 704
(2020). “Therefore, this issue is unpreserved.” Id. The plain error standard applies “to
unpreserved claims of error arising out of child-protective proceedings.” Id. at 463. A plain error
occurs if three requirements are “met: 1) error must have occurred, 2) the error was plain, i.e., clear
or obvious, 3) and the plain error affected substantial rights. The third requirement generally
requires a showing of prejudice, i.e., that the error affected the outcome of the lower court
proceedings.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (citation omitted).
Even if the three requirements are met, “[r]eversal is warranted only . . . when an error seriously
affected the fairness, integrity or public reputation of judicial proceedings . . . .” Id. at 763-764(quotation marks and citation omitted). “A ‘clear or obvious’ error under the second prong is one
that is not subject to reasonable dispute.” In re Pederson, 331 Mich App at 463 (quotation marks
and citation omitted).
“Child protective proceedings are generally divided into two phases: the adjudicative and
the dispositional. The adjudicative phase determines whether the probate court may exercise
jurisdiction over the child. If the court acquires jurisdiction, the dispositional phase determines
what action, if any, will be taken on behalf of the child.” In re Brock, 442 Mich 101, 108; 499
NW2d 752 (1993). “The fact-finding adjudication of an authorized petition to determine if the
minor comes within the jurisdiction of the court is called a trial.” In re Pederson, 331 Mich App
at 464 (quotation marks and citation omitted). “A parent may also waive his or her right to a trial
and admit the allegations in a petition or plead no contest to them.” Id. See also MCR 3.971(A).
MCR 3.971(D)(2) provides in relevant part:
The court shall not accept a plea of admission or of no contest without establishing
support for a finding that one or more of the statutory grounds alleged in the petition
are true, preferably by questioning the respondent unless the offer is to plead no
contest. If the plea is no contest, the court shall not question the respondent, but,
by some other means, shall obtain support for a finding that one or more of the
statutory grounds alleged in the petition are true.
In the present case, respondent, in light of his pending criminal case, entered a plea of no
contest to the allegations in the petition. For the factual basis supporting this plea, the court relied
“upon the portions of the police report that are set forth in the petition.” However, the petition did
not contain any references to a police report, the court stated that it did not have the police report,
and there is nothing in the record that suggests that the court was ever presented with a police
report. However, respondent expressly stipulated to the use of the police report to establish the
factual basis, and he did not raise an objection to the court’s decision to accept the plea after stating
that it did not have the police report. “A party who expressly agrees with an issue in the trial court
cannot then take a contrary position on appeal.” Grant v AAA Mich/Wisconsin, Inc (On Remand),
272 Mich App 142, 148; 724 NW2d 498 (2006). Because respondent expressly agreed with the
trial court’s actions, he cannot now use the procedure as the basis of his appeal.
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In any event, even if the trial court erred by accepting respondent’s no-contest plea without
presentation of the police report, there was sufficient evidence for the court to find that at least one
of the statutory grounds alleged in the petition was true. See MCR 3.971(D)(2). The petition for
jurisdiction was filed pursuant to MCL 712A.2(b)(1) and (2). Those provisions provide, in
pertinent part, that
[The] parent or other person legally responsible for the care and
maintenance of the juvenile, when able to do so, neglects or refuses to provide
proper or necessary support, education, medical, surgical, or other care necessary
for his or her health or morals, who is subject to a substantial risk of harm to his or
her mental well-being, who is abandoned by his or her parents, guardian, or other
custodian, or who is without proper custody or guardianship.
* * *
[The] 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 petition alleged that an undercover narcotics team informed Child Protective Services (CPS)
that methamphetamine and components used in the manufacture of methamphetamine were
discovered in respondent’s home. As a result of this discovery, respondent was arrested and
incarcerated for possession and production of methamphetamine. The petition also stated that
respondent admitted that he used methamphetamine in the bathroom while the children were
sleeping in the home. At the preliminary hearing, a CPS caseworker testified in regard to the
allegations in the petition, explaining that he received a complaint that methamphetamine was
discovered in the home in which respondent and the children lived. The caseworker further
testified that respondent informed him that respondent used methamphetamine in the bathroom
while the children were sleeping. Respondent was eventually sentenced and imprisoned for
possession and manufacture of methamphetamine. As a result, respondent has failed to establish
that any error that occurred by the trial court accepting the plea without receiving the police report
affected the outcome of the proceedings. See In re Pederson, 331 Mich App at 463.
B. STATUTORY GROUNDS
Respondent next asserts that petitioner failed to establish a statutory ground for termination
by clear and convincing evidence. We disagree.
We review for clear error a trial court’s finding “that a ground for termination has been
proven by clear and convincing evidence . . . .” In re Olive/Metts, 297 Mich App 35, 40; 823
NW2d 144 (2012) (quotation marks and citations omitted). “A trial court’s decision 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.” Id. at 41 (quotation marks
and citation omitted; alteration removed).
To terminate parental rights, the trial court must find by clear and convincing evidence that
at least one of the enumerated statutory grounds has been established. MCL 712A.19b(3).
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Respondent’s parental rights were terminated pursuant to MCL 712A.19b(3)(h), which requires
proof that:
The parent is imprisoned for such a period that the child will be deprived of
a normal home for a period exceeding 2 years, and the parent has not provided for
the child’s proper care and custody, 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 mere present inability to personally care for one’s children as a result of incarceration does
not constitute grounds for termination.” In re Mason, 486 Mich 142, 160; 782 NW2d 747 (2010).
An incarcerated parent “can achieve proper care and custody through placement of the child with
a relative.” In re Baham, 331 Mich App 737, 754; 954 NW2d 529 (2020) (quotation marks,
citation, and alteration omitted).
Respondent argues that “the testimony at the termination trial showed that he had in place
a relative caregiver that would be available but for his inability to direct who would have the care
of his children.” The only relatives who were discussed as potential family placements were
respondent’s mother and sister, and the testimony supported the trial court’s finding that they were
not appropriate placements for the children. The caseworker testified that the grandmother initially
denied placement because she was occupied caring for a disabled family member and that she later
requested that the children remain with the foster family because they were doing well there. The
caseworker testified that the aunt told her that she would not be able to accommodate the children.
Neither relative ever testified, neither of them ever requested placement, and respondent never
attempted to direct placement of the children with either one of them.
Respondent asserts that the trial court erred by finding that he would not be able to provide
for the children within a reasonable time considering their respective ages. His earliest release
date was February 2023, and both of the children were younger than five years old at the time of
termination. The children had already spent more than three years, the majority of their lives, in
foster care, and if respondent’s rights were not terminated it would have been at least two more
years before they could live in their permanent home. The caseworker testified that the children
needed permanency and that it would be traumatic for them to have to spend two more years
without knowing how that would be achieved. As a result, the trial court’s findings were not
clearly erroneous and supported termination pursuant to MCL 712A.19b(3)(h).
C. BEST INTERESTS
Finally, respondent argues that petitioner failed to prove that termination was in the best
interests of the children. We disagree.
We review a trial court’s finding that termination is in the child’s best interests for clear
error. In re Olive/Metts, 297 Mich App at 40. If the trial court finds that a statutory ground for
termination of parental rights has been established, it must order termination of parental rights only
if it finds that doing so is in the best interests of the child. MCL 712A.19b(5); In re Olive/Metts,
297 Mich App at 40. In making this finding, the trial court may consider factors such as “the
child’s bond to the parent, the parent’s parenting ability, the child’s need for permanency, stability,
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and finality, and the advantages of a foster home over the parent’s home.” In re Olive/Metts, 297
Mich App at 41-42 (citations omitted). “[W]hether termination of parental rights is in the best
interests of the child must be proved by a preponderance of the evidence.” In re Moss, 301 Mich
App 76, 90; 836 NW2d 182 (2013).
The testimony presented at trial supported the court’s finding that termination was in the
best interests of RZ and TZ. The children had a strong bond with their foster parents and did not
have a strong bond with respondent. The caseworker testified that the children had “a very close
bond” with their foster parents, that they considered their foster parents to be their mother and
father, and that they viewed their placement as home. The caseworker and the foster mother
testified that the foster mother had to facilitate the phone calls the children had with respondent
because the children generally were not engaged with the calls. The trial court justifiably placed
tremendous emphasis on the children’s need for permanence, stability, and finality. See id. The
children had spent most of their lives in their foster placement, and the caseworker testified that it
would have been traumatic to remove the children from their foster home. The children had been
in foster care for approximately three years, and the children would have been left in limbo for at
least two more years while respondent finished his prison sentence and then established himself
outside of incarceration. Finally, the evidence suggested that the foster parents, who planned to
adopt RZ and TZ, intended to continue to facilitate the relationship between the children and
respondent and his family.
Affirmed.
/s/ Jane E. Markey
/s/ Jane M. Beckering
/s/ Mark T. Boonstra
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