in Re J H Rocha-Mena Minor ( 2019 )

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UNPUBLISHED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 J. H. ROCHA-MENA, Minor. October 1, 2019
No. 348352
Wayne Circuit Court
Family Division
LC No. 09-490800-NA
Before: JANSEN, P.J., and CAMERON and TUKEL, JJ.
PER CURIAM.
Respondent appeals as of right from the trial court’s order terminating his parental rights
to the minor child under MCL 712A.19b(3)(c)(i), (c)(ii),1 (g), (i), and (j). We affirm.
Respondent’s sole argument on appeal is that the trial court erred in terminating his
parental rights because he has a constitutional right to the care and custody of his child.
Respondent did not raise any constitutional objections at the trial court; accordingly, the issue is
not preserved, and our review is for plain error affecting substantial rights. In re Utrera, 281
Mich. App. 1, 8; 761 NW2d 253 (2008).
Parents possess a fundamental interest in the companionship, custody,
care, and management of their children, an element of liberty protected by the due
process provisions in the federal and state constitutions. US Const, Am XIV;
1963 Const, art 1, § 17. Because child protective proceedings implicate “an
interest far more precious than any property right,” Santosky v Kramer, 455 U.S.
745, 758-759; 102 S. Ct. 1388; 71 L. Ed. 2d 599 (1982), “to satisfy constitutional
due process standards, the state must provide the parents with fundamentally fair
1
Although the trial court’s order terminating respondent’s parental rights cited statutory ground
MCL 712A.19b(3)(c)(ii), we note that the trial court did not mention that ground when it made
its oral pronouncement. In spite of this inconsistency, it is well established that courts speak
through their written orders. In re Contempt of Henry, 282 Mich. App. 656, 678; 765 NW2d 44
(2009).
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procedures.” Hunter v Hunter, 484 Mich. 247, 257; 771 NW2d 694 (2009)
(quotation marks and citation omitted). [In re Yarbrough, 314 Mich. App. 111,
122; 885 NW2d 878 (2016).]
However, respondent fails to recognize that “[a] parent’s right to control the custody and
care of her child[] is not absolute, as the state has a legitimate interest in protecting ‘the moral,
emotional, mental, and physical welfare of the minor’ and in some circumstances ‘neglectful
parents may be separated from their children.’ ” In re Sanders, 495 Mich. 394, 409-410; 852
NW2d 524 (2014), quoting Stanley v Illinois, 405 U.S. 645, 652; 92 S. Ct. 1208; 31 L. Ed. 2d 551
(1972). “Once the petitioner has presented clear and convincing evidence that persuades the
court that at least one ground for termination is established under [MCL 712A.19b(3)], the
liberty interest of the parent no longer includes the right to custody and control of the child[].”
In re Trejo, 462 Mich. 341, 355; 612 NW2d 407 (2000) (emphasis added); see also In re Moss,
301 Mich. App. 76, 85-86; 836 NW2d 182 (2013). “In other words, at that point, ‘the parent’s
interest in the companionship, care, and custody of the child gives way to the state’s interest in
the child’s protection.’ ” In re Moss, 301 Mich. App. at 93-94 (WILDER, J., concurring), quoting
In re Trejo, 462 Mich. at 356.
Thus, a parent’s constitutional right to the companionship, care, and custody of his child
is not violated if the trial court appropriately finds that a statutory ground for termination was
proven by clear and convincing evidence. Here, the trial court found that the statutory grounds
in MCL 712A.19b(3)(c)(i), (c)(ii), (g), (i), and (j) were established by clear and convincing
evidence. Therefore, respondent has failed to show how his constitutional rights were violated
by the termination of his parental rights. See also In re Sanders, 495 Mich. at 422 (stating that
there is “no constitutional or jurisdictional impediment to disrupting the parental rights of [the
parent], who was afforded the right to a determination of fitness”).2
2
Respondent’s counsel has made the same constitutional-right-to-parent argument, which suffers
from the same legal flaws, in other cases. See, e.g., In re E Sanders, unpublished per curiam
opinion of the Court of Appeals, issued July 9, 2019 (Docket No. 345604); In re M Jones, Jr,
unpublished per curiam opinion of the Court of Appeals, issued April 4, 2017 (Docket No.
335423); In re Young, unpublished per curiam opinion of the Court of Appeals, issued May 26,
2016 (Docket No. 330552); In re D Reichard, unpublished per curiam opinion of the Court of
Appeals, issued August 18, 2015 (Docket No. 326056).
We note that in each case, counsel made what is essentially the identical argument as in
this case and which, as here, did not argue any of the particular statutory facts relevant to the
case. The argument that a respondent has a constitutional right to parent his or her child, while
true, is beside the point; the statute provides a mechanism by which the constitutional right may,
in accordance with due process, be extinguished in an appropriate case. Thus, the essential
question presented in each such case is whether the petitioner carried its burden under the statute.
Given the legal irrelevancy of the question posed by respondent’s counsel, and his failure to
address particular factual circumstances applicable to each case, it is difficult to avoid the
conclusion that counsel’s representation approaches, if it does not actually constitute,
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Critically, respondent on appeal does not challenge the trial court’s findings related to
these statutory grounds. Indeed, respondent in the argument portion of his brief on appeal does
not even cite or acknowledge a single statutory ground on which the trial court relied in
terminating his parental rights. As a result, we decline to review the trial court’s findings, as
respondent has abandoned any challenge to them.3 See Mitchell v Detroit, 355 Mich. 182, 203;
94 NW2d 388 (1959) (“Failure to brief a question on appeal is tantamount to abandoning it.”);
Froling v Carpenter, 203 Mich. App. 368, 373; 512 NW2d 6 (1993).4
Affirmed.
/s/ Kathleen Jansen
/s/ Thomas C. Cameron
/s/ Jonathan Tukel
performance falling below an objective level of reasonableness. In the present case, no argument
for ineffective assistance will lie, as we have thoroughly reviewed the record for any other
meritorious argument which counsel could have made but did not, and have not found any.
However, that review on our part does not excuse counsel’s repeated argument, in many cases, of
a frivolous legal position, or his failure to address the unique circumstances of the case at hand.
3
The trial court also found that termination of respondent’s parental rights was in the child’s best
interests. Under Michigan law, once a court finds that there is clear and convincing evidence to
support a statutory ground for termination of parental rights, the court must terminate the
respondent’s parental rights if a preponderance of the evidence shows that termination is in the
best interests of the child. MCL 712A.19b(5); In re Moss, 301 Mich. App. at 90. But as with the
statutory factors, respondent presents no argument that the trial court erred with respect to this
finding either.
4
Despite respondent’s failure to challenge any of the statutory grounds for termination, we note
that although the trial court’s order provides that it relied on MCL 712A.19b(3)(i) (rights to one
or more siblings of the child have been terminated due to serious and chronic neglect) in
terminating respondent’s parental rights, it is evident that this factor only applied to respondent-
mother, who is not a party to this appeal.
Regardless, assuming the trial court improperly relied on MCL 712A.19b(3)(c)(ii), see
note 1 of this opinion, and (3)(i), reversal is not warranted because only one statutory ground
need be proven to terminate a parent’s parental rights, In re Foster, 285 Mich. App. 630, 633; 776
NW2d 415 (2009), and the trial court also cited grounds (3)(c)(i) (parent’s act caused physical
injury or physical or sexual abuse and there is a reasonable likelihood that the child will suffer
from injury or abuse in the foreseeable future if placed in the parent’s home); (3)(g) (parent fails
to provide proper care or custody for the child, although financially able to do so, 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); and (3)(j) (reasonable likelihood that the child will
be harmed if returned to the home of the parent, based on the conduct or capacity of the child’s
parent).
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