In Re Piland Minors ( 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UNPUBLISHED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 PILAND, Minors. September 15, 2022
No. 360062
Ingham Circuit Court
Family Division
LC Nos. 17-000591-NA;
17-000592-NA;
18-000996-NA
Before: M. J. KELLY, P.J., and CAMERON and HOOD, JJ.
PER CURIAM.
Respondent-mother and respondent-father appeal as of right an order terminating their
parental rights to three minor children, MP, JP, and VP, under MCL 712A.19b(3)(b)(ii) and (j).1
Because there are no errors warranting reversal, we affirm.
I. BASIC FACTS
Respondents’ daughter AP was born on February 6, 2017. Evidence established that she
developed severe jaundice, that respondents were informed that she needed immediate medical
assistance, and that they refused to obtain such assistance (despite having medical insurance)
because they believed in “divine healing” and rejected “manmade” medical care.
AP died on February 9, 2017. The doctor that performed AP’s autopsy opined that AP
likely had had “hemolytic disease of the newborn,” an incompatibility with her mother’s blood
that led to an excess of bilirubin. The doctor testified that hemolytic disease is “extremely
1
The trial court terminated respondents’ parental rights during earlier proceedings, but in In re
Piland, 336 Mich App 713, 717; 972 NW2d 269 (2021), this Court ordered a retrial for the
adjudicative phase so that the jury could be instructed in accordance with MCL 722.634. That
statute provides, in relevant part, “[a] parent or guardian legitimately practicing his religious
beliefs who thereby does not provide specified medical treatment for a child, for that reason alone
shall not be considered a negligent parent or guardian.”
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treatable” both pre- and post-birth, and explained that the easy availability of treatment had led to
a virtual elimination of the disease in the western world. He opined that AP’s condition could
have been easily treated by giving respondent-mother the medicine “RhoGAM” prenatally. Post-
birth, the treatment included “setting a baby in sunlight” or artificial light or, for more advanced
cases, giving a blood transfusion. Given the severity of AP’s jaundice, the doctor opined that mere
sunlight would not have worked in her case.
Respondents, however, refused to treat with RhoGAM prior to AP’s birth. Moreover, they
also refused to seek medical treatment for AP after she was born. They were informed of the risks
by their midwife. She testified that before AP was born she advised respondents that jaundice
occurring within 24 hours of birth was likely to be severe. Twenty hours after AP’s birth, the
midwife conducted a follow-up visit. She observed that AP had “high and marked” jaundice in
her face and chest. The midwife again stressed of the risks of jaundice occurring so soon after
birth, and she recommended that AP be taken to a doctor or hospital emergency room.
Respondent-mother refused, stating that “God makes no mistakes” and “Our baby is fine.” The
midwife discussed the signs of a worsening problem and, because she was concerned for AP, she
scheduled an appointment to come by the next day. Respondent-mother cancelled that
appointment, but told the midwife that AP’s yellowing was worsening. By 9:00 a.m. on
February 8, 2017, AP’s grandmother observed that “AP’s whole body was nothing but yellow.”
AP was also lethargic, had spit up something bloody, and had stiffening in her arms and legs.
Respondents did not seek medical treatment for AP. She died.
Respondents’ daughter VP, born after AP, had the same affliction as AP, and she spent 50
days in a neonatal-intensive-care unit after being taken from respondents’ home by Child
Protective Services workers. VP made a full recovery.
Throughout the proceedings, respondents maintained that they would not have done
anything differently with regard to AP, and they expressed anger that petitioner had obtained
medical treatment for VP. They remained adamant that they would not seek medical treatment for
any of their children beyond “basic first aid.”2
The jury found that respondents’ home was unfit on the basis of neglect, cruelty, and
criminality. Thereafter, the trial court entered an order taking jurisdiction over the children. And,
following a termination hearing, the trial court found statutory grounds to terminate respondents’
parental rights under MCL 712A.19b(3)(b)(ii) and (j). The court also found that termination of
respondents’ parental rights was in their children’s best interests.
2
By way of example, while in foster care, MP was prescribed an EpiPen for a severe allergic
reaction, and respondents objected to his having received treatment and stated that they would
have not sought it. Further, JP broke his ankle while in foster care, and respondent-mother
disagreed with medical professionals that the ankle was broken, averring that if someone obeys
God, his or her bones would not break. Respondents expressed to a caseworker that they were
“opposed to medical examinations, drug administrations, and manmade medical attention of any
kind.”
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II. PROSECUTORIAL MISCONDUCT
A. STANDARD OF REVIEW
Respondents first argue that the prosecuting attorney representing petitioner committed
misconduct at the adjudication trial by referring to respondents as “defendants” during closing
argument. The test for prosecutorial error is whether the litigant was denied a fair and impartial
trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). This Court decides issues
of prosecutorial error on a case-by-case basis, reviewing the pertinent portion of the record and
examining the prosecutor’s remarks in context. People v Noble, 238 Mich App 647, 660; 608
NW2d 123 (1999). Unpreserved issues are reviewed under the plain-error standard. In re Utrera,
281 Mich App 1, 8-9; 761 NW2d 253 (2008). Under the plain-error doctrine, reversal is only
warranted if a plain (i.e., a “clear or obvious”) error occurred that “affected substantial rights,” i.e.,
“affected the outcome of the lower court proceedings.” People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999).
B. ANALYSIS
During closing argument, the prosecuting attorney representing petitioners, addressed
respondents’ refusal to allow their midwife to return to their house two days after AP was born.
He argued:
And—and what are the defendants jointly doing when they prohibit [the
midwife] from coming? Well, [the midwife] is the person who [sic] they hired.
The professional. The trained professional.
Respondents’ lawyer objected, stating, “Your Honor, I object to the use of the word defendants.
This is—is not a criminal trial.” The prosecutor then said:
Did I say defendants? I—I so much apologize. And I—I want to take—I
recluse [sic]—withdraw that from the record—respondents. Thank you. And I
apologize. Respondents is the appropriate word. Thank you, [defense counsel].
What did the respondents do—and if I do that again, please scold me. All
Right.
Respondents’ lawyer replied, “Okay.” The trial court did not sustain the objection, nor did it
provide the jury with a curative instruction.
Respondents contend that the prosecutor committed misconduct by referring to them as
defendants and that the trial court should have responded to the misconduct. However, the
prosecutor immediately acknowledged that “defendants” was the wrong term, withdrew his use of
the term, and acknowledged that “respondents” was the appropriate term. The trial court had no
need to respond to the error given that the prosecutor immediately conceded it and given that
respondents’ lawyer did not seek any additional instructions based on the prosecutor’s conceded
error. Furthermore, this single misstatement took place amidst a lengthy closing argument during
which the prosecutor repeatedly referred to respondents using the term “respondents.” We,
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therefore, conclude that respondents were not denied a fair or impartial trial on the basis of the
prosecutor’s single use of the term “defendants.” Watson, 245 Mich App at 586.
Additionally, while we are not unaware of the needless impish tone of the prosecutor’s
response to the objection, we do not believe that it rises to the level of misconduct. The
prosecutor’s sarcastic comments were in response to the objection raised by respondents’ lawyer
and they accurately conceded error. Thus, although the prosecutor’s response to the objection
should have been stated in general terms, particularly in a case of such a serious nature, reversal is
not warranted in this case.
III. INEFFECTIVE ASSISTANCE
Respondents next argue that they were deprived of effective assistance from their attorney
during the dispositional hearing because respondents’ attorney appeared remotely via
videoconferencing technology, while respondents were present in the courtroom. “[T]he
principles applicable to claims of ineffective assistance of counsel in the arena of criminal law also
apply by analogy in child protective proceedings[.]” In re Martin, 316 Mich App 73, 85; 896
NW2d 452 (2016). To obtain relief on the basis of ineffective assistance, a party “must show that
counsel’s performance fell short of [an] . . . objective standard of reasonableness and that, but for
counsel’s deficient performance, there is a reasonable probability that the outcome of the . . . trial
would have been different.” People v Ackley, 497 Mich 381, 389; 870 NW2d 858 (2015)
(quotation marks, citation, and brackets omitted). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. (quotation marks and citation omitted).
Here, at the beginning of the termination hearing, the prosecutor and the guardian ad litem
introduced themselves. Respondents’ lawyer then noted that he was “appearing by Zoom.”
Respondents were present in the courtroom. There were no objections to respondents’ lawyer
appearing by Zoom. Indeed, the court rules expressly allow for such an appearance during a
termination hearing. MCR 3.904 states, in part:
(B) Child Protective and Juvenile Guardianship Proceedings.
(1) Except as provided in subrule (B)(2), courts may allow the use of
videoconferencing technology by any participant, as defined in MCR 2.407(A)(1),
in any proceeding.
(2) As long as the respondent is either present in the courtroom or has
waived the right to be present, on motion of either party showing good cause, the
court may use videoconferencing technology to take testimony from an expert
witness or any person at another location in the following proceedings:
(a) removal hearings under MCR 3.967 and evidentiary hearings; and
(b) termination of parental rights proceedings under MCR 3.977 and trials,
with the consent of the parties. A party who does not consent to the use of
videoconferencing technology to take testimony from a person at trial shall not be
required to articulate any reason for not consenting. [Emphasis added.]
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Lawyers are expressly included in the definition of “participants.” See MCR 2.407(A)(1).
Because the court rules explicitly allow for a lawyer representing a respondent-parent to
appear by videoconferencing technology, it did fall below an objective standard of reasonableness
for respondents’ attorney to appear by Zoom. See Ackley, 497 Mich at 389. Moreover, to the
extent that respondents argue that the trial court should not have allowed the dispositional hearing
to proceed because respondents’ attorney was appearing by Zoom, in light of the court rule
allowing for their lawyer to appear using videoconferencing technology, respondents cannot show
any error, plain or otherwise. See Carines, 460 Mich at 763.
We also find unpersuasive respondents argument that they were prejudiced because they
were prevented from whispering questions and raising concerns to their lawyer. In In re Smith-
Taylor, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket No. 356585); slip op at 10, rev’d
on other grounds 971 NW2d 657 (2022), the respondent had agreed to participate in child-
protective proceedings by videoconference but later argued that the trial court erred by failing to
inform her of her right to appear in person. This Court stated, in part, “Respondent failed to set
forth any argument as to how the outcome of the proceedings would have been different had they
taken place in-person. Accordingly, respondent has failed to establish that her due process rights
were violated.” Id. at ___; slip op at 11. Similarly, respondents in the present case have not
indicated how the outcome of the proceedings would have differed if their lawyer had been present
in person at the termination hearing. Indeed, although they mention the inability to whisper to
their lawyer, they fail to indicate what, exactly, might have been whispered. They also do not
indicate what physical evidence their lawyer might have presented if he had appeared in person.
As a result, they have not set forth any argument showing that the outcome of the proceedings
would have been different if their lawyer had appeared in person.
Affirmed.
/s/ Michael J. Kelly
/s/ Thomas C. Cameron
/s/ Noah P. Hood
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