in Re a Noffsinger Minor ( 2019 )


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  •             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    UNPUBLISHED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 A. NOFFSINGER, Minor.                                        October 15, 2019
    No. 331108
    Livingston Circuit Court
    Family Division
    LC No. 2014-014680-NA
    ON REMAND
    Before: RONAYNE KRAUSE, P.J., and GLEICHER and BOONSTRA, JJ.
    PER CURIAM.
    Respondent-father challenged the circuit court’s assumption of jurisdiction over his
    daughter, AN, following the termination of his parental rights. Based on standing precedent, we
    rejected respondent’s challenge as a prohibited collateral attack. The Michigan Supreme Court
    subsequently overturned that precedent and amended the court rules, permitting the current
    respondent’s appellate challenge. However, the circuit court properly assumed jurisdiction in
    this case and respondent is not entitled to relief from that order. We again affirm.
    I. BACKGROUND
    The Department of Health and Human Services (DHHS) filed a petition to take
    jurisdiction over respondent-father’s daughter, AN, based on his history of alcohol abuse and
    domestic violence and the prior termination of his parental rights to three older children. In re
    Noffsinger, unpublished opinion of the Court of Appeals, issued November 29, 2016 (Docket
    No. 331108), slip op at 2 (Noffsinger I). Respondent initially fought the petition, but eventually
    submitted to substance abuse and psychological evaluations. 
    Id. at 2-3.
    Thereafter, respondent
    agreed to plead to grounds for jurisdiction. Specifically, he admitted that he previously lost
    parental rights to other children, was convicted in 2009 for assaulting AN’s mother, and was
    recently assessed as meeting the criteria for “alcohol dependence” and yet still had not initiated
    substance abuse treatment. 
    Id. at 3.
    During the plea proceeding, the circuit court advised respondent of the rights he was
    waiving by pleading to grounds for jurisdiction and asked a series of questions to ensure that
    respondent’s plea was voluntary. 
    Id. at 3-5.
    The court also provided a written advice of rights
    -1-
    form. However, the court did not advise respondent regarding his limited right to appeal the
    adjudicative order and respondent did not attempt to challenge the adjudication until he appealed
    to this Court following the termination decision. 
    Id. at 8.
    Such attacks were deemed “collateral”
    under In re Hatcher, 
    443 Mich. 426
    ; 505 NW2d 834 (1993), and were therefore barred.
    Noffsinger I, slip op at 5. We noted that MCR 3.971 through MCR 3.974 did not require a court
    to advise a parent at the adjudicative phase that his or her right to appeal the jurisdictional
    decision must be taken following the court’s initial dispositional order. Noffsinger I, slip op at 8.
    Accordingly we held:
    Ultimately, we find insufficient ground to extend the law to nullify a
    circuit court’s jurisdiction in a child protective proceeding when the court fails to
    notify the parent that the jurisdictional order must be directly appealed. To date,
    there is no Supreme Court decision declaring a constitutional right to such
    notice . . . . [Various unpublished Court of Appeals opinions] permit collateral
    attacks in the face of a violation of an existing court rule mandate. The Supreme
    Court may wish to consider amending MCR 3.971(B) and MCR 3.972 to require
    appellate right notifications at the adjudicative phase. But we decline to impose a
    duty on all courts in this opinion. Respondent pleaded to jurisdiction and in the
    absence of constitutional error or a court rule violation, is bound by that decision.
    [Noffsinger I, slip op 8.]
    II. SUPREME COURT
    Respondent filed an application for leave to appeal in the Supreme Court, which held the
    application in abeyance pending its resolution of In re Ferranti, Minor (Docket No. 157907-8).
    In re Noffsinger, 913 NW2d 329 (2018). In In re Ferranti, ___ Mich ___; ___ NW2d ___
    (2019), slip op at 1, the Supreme Court overruled Hatcher’s holding that a posttermination
    appellate challenge to an adjudicative order is a prohibited collateral attack. “Hatcher made a
    foundational mistake,” the Court held, as “it erroneously applied the rule from Jackson City Bank
    & Trust Co v Frederick, 
    271 Mich. 538
    ; 
    260 N.W. 908
    (1935)—that a court’s exercise of
    jurisdiction cannot be collaterally attacked in a second proceeding—to what is a single, continual
    proceeding.” Ferranti, slip op at 15. The Court continued:
    Hatcher applied the collateral-bar rule to conclude that a respondent who
    appeals a defect in the adjudicative phase at the end of the child protective
    proceeding (in an appeal from an order terminating parental rights) is
    “collaterally” attacking that very same child protective proceeding. But that
    holding failed to recognize that “[a] child protective proceeding is ‘a single
    continuous proceeding’ ” that begins with a petition, proceeds to an adjudication,
    and—unless the family has been reunified—ends with a determination of whether
    a respondent’s parental rights will be terminated. In re Hudson, 
    483 Mich. 928
    ,
    935 (CORRIGAN, J., concurring), quoting In re LaFlure, 
    48 Mich. App. 377
    , 391;
    210 NW2d 482 (1973). [Ferranti, slip op at 16.]
    In Ferranti, slip op at 3-4, the circuit court did not simply fail to advise the respondents of their
    right to appeal the assumption of jurisdiction; the court completely failed to advise the
    respondents of the rights they waived by entering a plea and the consequences of their plea.
    -2-
    After overruling Hatcher, the Supreme Court did not automatically vacate the circuit court’s
    adjudicative order based on the court’s failure to advise the respondents of their appellate rights.
    Instead, the Court considered the merits of the respondents’ other appellate challenges to the
    plea-taking process. Ferranti, slip op at 22-23. Ultimately, the Supreme Court found error
    warranting relief because the failure to advise the respondents of the rights waived and other plea
    consequences rendered their pleas unknowing, involuntary, and made without understanding and
    violated their right to due process of law. 
    Id. at 23-24.
    The Supreme Court noted in Ferranti, slip op at 3-4 n 1, that it was amending MCR
    3.971 effective on the release date of its opinion. The current child protective proceeding was
    initiated in 2014 and respondent’s parental rights were terminated in 2016. At that time, MCR
    3.971 provided in relevant part:
    (B) Advice of Rights and Possible Disposition. Before accepting a plea of
    admission or plea of no contest, the court must advise the respondent on the
    record or in a writing that is made a part of the file:
    (1) of the allegations in the petition;
    (2) of the right to an attorney, if respondent is without an attorney;
    (3) that, if the court accepts the plea, the respondent will give up the rights to
    (a) trial by a judge or trial by a jury,
    (b) have the petitioner prove the allegations in the petition by a
    preponderance of the evidence,
    (c) have witnesses against the respondent appear and testify under oath at
    the trial,
    (d) cross-examine witnesses, and
    (e) have the court subpoena any witnesses the respondent believes could
    give testimony in the respondent’s favor;
    (4) of the consequences of the plea, including that the plea can later be used as
    evidence in a proceeding to terminate parental rights if the respondent is a parent.
    The relevant provisions of the court rule now provide:
    (B) Advice of Rights and Possible Disposition. Before accepting a plea of
    admission or plea of no contest, the court must advise the respondent on the
    record or in a writing that is made a part of the file:
    (1) of the allegations in the petition;
    (2) of the right to an attorney, if respondent is without an attorney;
    -3-
    (3) that, if the court accepts the plea, the respondent will give up the rights to
    (a) trial by a judge or trial by a jury,
    (b) have the petitioner prove the allegations in the petition by a
    preponderance of the evidence,
    (c) have witnesses against the respondent appear and testify under oath at
    the trial,
    (d) cross-examine witnesses, and
    (e) have the court subpoena any witnesses the respondent believes could
    give testimony in the respondent’s favor;
    (4) of the consequences of the plea, including that the plea can later be used as
    evidence in a proceeding to terminate parental rights if the respondent is a parent.
    (5) if parental rights are subsequently terminated, the obligation to support the
    child will continue until a court of competent jurisdiction modifies or terminates
    the obligation, an order of adoption is entered, or the child is emancipated by
    operation of law. Failure to provide required notice under this subsection does
    not affect the obligation imposed by law or otherwise establish a remedy or cause
    of action on behalf of the parent;
    (6) that appellate review is available to challenge a court’s initial order of
    disposition following adjudication, and such a challenge can include any issues
    leading to the disposition, including any errors in the adjudicatory process;
    (7) that an indigent respondent is entitled to appointment of an attorney to
    represent the respondent on appeal of the initial dispositional order and to
    preparation of relevant transcripts; and
    (8) the respondent may be barred from challenging the assumption of
    jurisdiction in an appeal from the order terminating parental rights if they do not
    timely file an appeal of the initial dispositional order under MCR 3.993(A)(1),
    3.993(A)(2), or a delayed appeal under MCR 3.993(C).
    (C) Right to Appellate Review. The respondent may challenge the assumption of
    jurisdiction in an appeal from the order terminating respondent’s parental rights if
    the respondent’s parental rights are terminated at the initial dispositional hearing
    pursuant to MCR 3.977(E). In addition, the respondent may challenge the
    assumption of jurisdiction in an appeal from the order terminating respondent’s
    parental rights if the court fails to properly advise the respondent of their right to
    appeal pursuant to subrule (B)(6)-(8). [MCR 3.971, as amended effective June
    12, 2019 (emphasis added).]
    -4-
    With one hand the Supreme Court giveth and with the other it taketh away. Essentially,
    the Supreme Court held in Ferranti that a parent may challenge an adjudicative order even
    following termination, but then amended the court rules to limit that right to situations where the
    lower court fails to advise the parent of his or her right to appeal the adjudication following the
    initial dispositional order. The following can be taken from Ferranti and the court rule
    amendment:
       A parent generally must appeal the order taking jurisdiction following the court’s first
    dispositional order thereafter.
       Relevant to this case, a parent may appeal the jurisdictional order following termination if
    the court failed to advise the parent of his or her right to appeal the assumption of
    jurisdiction following the initial dispositional order.1
    Following its resolution of Ferranti and the amendment of the court rules, the Supreme
    Court vacated Noffsinger I in its entirety and remanded to this Court “for reconsideration in light
    of Ferranti.” In re Noffsinger, ___ Mich ___ (Docket No. 154999, entered August 2, 2019).
    III. GROUNDS FOR JURISDICTION
    Regardless of whether we apply Ferranti or the amended court rule, respondent-father
    now has the right to appeal the assumption of jurisdiction. Pursuant to Ferranti, a parent may
    appeal an adjudicative order even following termination. And according to the newly amended
    court rule, respondent has the right to appeal errors in the adjudicative phase following
    termination because the circuit court failed to advise him of his right to appeal following the
    initial dispositional order. But contrary to respondent’s implication and consistent with Ferranti,
    the failure to advise respondent of his appellate rights does not lead to automatic vacation of the
    assumption of jurisdiction.
    In his original appellate brief, respondent challenged the sufficiency of the evidence
    supporting the assumption of jurisdiction. Specifically, respondent asserted, “The trial court did
    not properly adjudicate Father because the facts he admitted are not sufficient to establish
    jurisdiction as there was no indication the facts pled to affected his child. His four-paragraph
    plea . . . was akin to admitting that Monday follows Sunday with the court assuming jurisdiction
    based on that admission.” Respondent continues to challenge the evidentiary support for the
    adjudicative order.
    In the plea agreement, respondent admitted that (1) his parental rights to three older
    children were terminated in a previous child protective proceeding, (2) a substance abuse
    assessment had been conducted, respondent met the criteria for alcohol dependence, and he was
    “not currently receiving any treatment or participating in any abstinence support,” and (3)
    1
    The parent may also appeal the jurisdictional order following termination if termination was
    sought at the initial dispositional hearing.
    -5-
    respondent “was convicted by plea of Domestic Violence – 2nd Habitual Offender” for assaulting
    AN’s mother.
    To properly exercise jurisdiction, the trial court must find that a statutory
    basis for jurisdiction exists. Jurisdiction must be established by a preponderance
    of the evidence. We review the trial court’s decision to exercise jurisdiction for
    clear error in light of the court’s findings of fact. [In re BZ, 
    264 Mich. App. 286
    ,
    296; 690 NW2d 505 (2004) (citations omitted).]
    Relevant to this appeal, the statutory grounds for taking jurisdiction over a child are
    found in MCL 712A.2(b):
    Jurisdiction in proceedings concerning a juvenile under 18 years of age found
    within the county:
    (1) Whose 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. . . .
    * * *
    (2) Whose 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. . . .
    “Neglect” under both provisions is defined consistent with MCL 722.602, which at the time of
    these proceedings provided, “ ‘Neglect’ means harm to a child’s health or welfare by a person
    responsible for the child’s health or welfare which occurs through negligent treatment, including
    the failure to provide adequate food, clothing, shelter, or medical care.”2
    Jurisdiction was properly assumed under MCL 712A.2(b)(1) because AN’s placement
    with respondent would subject her “to a substantial risk of harm to . . . her mental well-being,”
    and under subsection (b)(2) because respondent’s home was “an unfit place for [AN] to live” due
    to respondent’s “cruelty, drunkenness, criminality, or depravity.”
    2
    This definition was amended by 
    2018 PA 60
    , effective June 12, 2018, to provide:
    “Neglect” means harm to a child’s health or welfare by a person responsible for
    the child’s health or welfare that occurs through negligent treatment, including the
    failure to provide adequate food, clothing, shelter, or medical care, though
    financially able to do so, or the failure to seek financial or other reasonable means
    to provide adequate food, clothing, shelter, or medical care.
    -6-
    Respondent makes much of the fact that his plea did not tie his alcoholism and history of
    domestic violence to any specific harm directly incurred by AN. However, the plain language of
    MCL 712A.2(b)(1) and (2) clearly refers to the outcome of respondent’s conduct. Thus, it
    excludes being a victim of someone else’s conduct. See In re Plump, 
    294 Mich. App. 270
    , 273;
    817 NW2d 119 (2011). Nevertheless, it is significant that the Legislature included “[d]omestic
    violence, regardless of whether the violence was directed against or witnessed by the child,”
    MCL 722.23(k), as an explicit factor to consider when resolving custody disputes. This
    recognizes both that committing domestic violence in the home—even against persons other than
    the child—is harmful to children, and that it matters which party was the perpetrator.
    Respondent’s history of committing domestic violence beyond just the 2009 incident for which
    he was convicted, and his clear persistence in aggressive and threatening conduct despite the
    availability of services, shows that he poses a substantial risk of harm to AN’s mental well-being
    and that his home would be an unfit place for AN to live. Furthermore, leaving a child in the
    sole custody of a parent who abuses alcohol and refuses to seek treatment creates the danger that
    the parent will drive while intoxicated with the child or be regularly unable to safely care for the
    child due to inebriation.
    The trial court correctly concluded that living with a parent tenaciously prone to violence
    and unwilling to address his substance abuse issue is harmful to a child’s mental well-being. On
    this record, we cannot find that the evidence preponderates against the circuit court’s assumption
    of jurisdiction. We discern no ground to set that decision aside.
    IV. TERMINATION DECISION
    In his original appeal, respondent also challenged the evidentiary support for the statutory
    grounds underlying the circuit court’s termination decision and contended that termination of his
    parental rights was not in AN’s best interests. In Noffsinger I, slip op at 11-13, we rejected those
    claims. We reaffirm our reasoning in Noffsinger I and adopt it in full for purposes of this
    opinion on remand.
    We affirm.
    /s/ Amy Ronayne Krause
    /s/ Elizabeth L. Gleicher
    /s/ Mark T. Boonstra
    -7-
    

Document Info

Docket Number: 331108

Filed Date: 10/15/2019

Precedential Status: Non-Precedential

Modified Date: 10/16/2019