In Re Plaugher 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UNPUBLISHED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 PLAUGHER, Minors. June 9, 2022
No. 358604
Calhoun Circuit Court
Family Division
LC No. 2018-002809-NA
Before: BORRELLO, P.J., and JANSEN and MURRAY, JJ.
PER CURIAM.
After a remote hearing held over three days, the circuit court entered an order terminating
the parental rights of respondent-mother to her three children under MCL 712A.19b(3)(c)(i)
(failure or inability to rectify conditions of adjudication) and MCL 712A.19b(3)(j) (reasonable
likelihood of harm).1 Respondent appeals by right, arguing that the trial court clearly erred by
terminating her parental rights, and that the trial court violated her due-process rights by
conducting the termination hearing using videoconferencing technology and by taking nine months
to appoint appellate counsel after respondent’s timely request. Finding no error requiring reversal,
we affirm.
I. RELEVANT FACTS AND PROCEEDINGS
The family came to the attention of petitioner, the Department of Health and Human
Services (DHHS), in 2016, when the two oldest children were found unsupervised at a McDonald’s
restaurant. The children were four years old and two years old at the time. Beginning in June
2018, petitioner provided various services to the family in an effort to prevent removal of the
children from the home. However, on October 8, 2018, Children’s Protective Services received a
request for immediate assistance when respondent was found unresponsive at her home and the
children were found screaming in the hallway.
1
By the same order, the trial court also terminated the parental rights of respondent-father. He is
not a participant in this appeal. “Respondent” refers solely to respondent-mother.
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The next day, petitioner filed a complaint alleging neglect. Petitioner identified several
instances in which the children had wandered away from the home unnoticed or been left in the
home unsupervised. Petitioner also alleged that the home was strewn with garbage, including
food, dirty dishes, and soiled diapers; that the home was infested with cockroaches; and that drug
paraphernalia was within reach of the children. The children were removed from the home on
October 9, 2018. After a petition was filed, respondent pleaded to the allegations involving
neglect, failure to supervise, domestic violence, and failure to provide a safe, clean environment
for the children. The trial court ordered the parents to comply with, and benefit from, a case service
plan. The initial parent-agency treatment plan called for the parents to undergo psychological
evaluations; to engage in individual counseling, substance abuse counseling, random drug screens,
and in-home parenting education; and to maintain a clean and safe home.
After a sluggish start, the parents made considerable progress toward reunification. In
January 2020, both parents were in such compliance that petitioner recommended reunification
services and return of the children one by one within 30 days. Reunification never occurred, and
by July 2020, petitioner recommended changing the goal from reunification to adoption on the
basis of the parents’ lack of consistency regarding drug screens, parenting time, and
communication. The children came into care with severe signs of neglect, and needed extensive
therapeutic and occupational care. The parents’ inability to call in consistently for drug screens,
to attend parenting time, and to communicate with the foster parents and petitioner did not signify
that the parents had acquired the skills necessary to provide the coordination, communication, and
stability necessary to keep their children safe and healthy.
Both the prosecutor and the lawyer-guardian ad litem (LGAL) recommended initiating
termination proceedings. Respondent advocated for more time, stating that she had been
consistently employed and generally had consistent housing, and that all of her drug screens were
negative. Respondent attributed the problems she had to the pandemic and to the fact that
petitioner did not give her a phone to make sure she could attend video parenting time. The referee
agreed with the LGAL and saw no compelling reason not to order a goal change to adoption.
Petitioner filed a supplemental petition to terminate the parents’ parental rights.
After hearing testimony and oral arguments, the trial court found that clear and convincing
evidence established grounds to terminate respondent’s parental rights under
MCR 712A.19b(3)(c)(i). The trial court found that the children had been in care for over two years
and that conditions remained essentially the same as at the adjudication. The court commented
that respondent had “no realization whatsoever of what her children have actually been through,”
that she “misrepresented situations on a number of occasions,” and that she “change[d] her story
whenever it [was] convenient for her facts and circumstances.” The court also noted that there had
been domestic violence in the relationship from the beginning and that it continued, but that
respondent was unwilling to address it or to receive treatment for it. As to substance abuse, the
court found that respondent missed 50% of her drug screens, and missed screens were deemed
positive. The court also found credible the foster parent’s testimony regarding parenting time, and
it concluded that respondent was only 50% to 60% compliant with parenting time. The trial court
commended respondent on the progress she had made, but it observed that this was a case of “too
little too late”—after more than two years, respondent was just getting started again. The trial
court also found that clear and convincing evidence established grounds for termination under
MCR 712A.19b(3)(j), stating that it had no doubt that to place the children back in an environment
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of domestic violence, chaos, substance abuse, and unfit home conditions would negate all the
progress the children had made and could have lifelong consequences for them.
Turning to the children’s best interests, the trial court acknowledged the children’s bond
with respondent, but it noted that they were also bonded to the foster mother. The court
acknowledged that the children had made substantial progress thanks to the efforts of the foster
parents, but it asserted that the children needed to be together in a stable, permanent home, free
from domestic violence. The court noted that the foster mother loved the children, that she and
the children were bonded, and that the children were together in a preadoptive home. On the basis
of the foregoing, the trial court entered an order terminating the parents’ parental rights. This
appeal by respondent followed.
II. TERMINATION OF PARENTAL RIGHTS
Respondent first argues that the trial court clearly erred by finding that statutory grounds
for termination had been established by clear and convincing evidence and by finding that a
preponderance of the evidence established that termination was in her children’s best interests.
We disagree.
A. STANDARD OF REVIEW
An appellate court “review[s] for clear error . . . the court’s decision that a ground for
termination has been proven by clear and convincing evidence . . . .” In re Trejo, 462 Mich 341,
356-357; 612 NW2d 407 (2000). See also MCR 3.977(K). A finding is clearly erroneous if,
although there is evidence to support it, this Court is left with a definite and firm conviction that a
mistake was made. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). To be clearly
erroneous, a decision must be more than maybe or probably wrong. In re Sours, 459 Mich 624,
633; 593 NW2d 520 (1999); In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009).
“Further, regard is to be given to the special opportunity of the trial court to judge the credibility
of the witnesses who appeared before it.” In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
See also In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989); “Appellate courts are obligated
to defer to a trial court’s factual findings at termination proceedings if those findings do not
constitute clear error.” In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009). “If the trial court did
not clearly err by finding one statutory ground existed, then that one ground is sufficient to affirm
the termination of the respondent’s parental rights.” In re Sanborn, ___ Mich App ___, ___; ___
NW2d ___ (2021) (Docket Nos. 354915 and 354916); slip op at 9.
Whether 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 trial court’s findings regarding the child’s best interests are also reviewed under the clearly
erroneous standard. MCR 3.977(K); In re Rood, 483 Mich at 90-91.
B. STATUTORY GROUNDS
Natural parents have a “fundamental liberty interest . . . in the care, custody, and
management of their children,” and this interest “does not evaporate simply because they have not
been model parents or have lost temporary custody of their child to the State.” Santosky v Kramer,
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455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). However, “[a] parent’s right to control
the custody and care of her children 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 US 645, 652; 92 S Ct
1208; 31 L Ed 2d 551 (1972). “In order to terminate parental rights, the trial court must find by
clear and convincing evidence that at least one of the statutory grounds for termination in MCL
712A.19b(3) has been met.” In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011).
Evidence is clear and convincing if it
“produces in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established, evidence so clear, direct and weighty
and convincing as to enable the factfinder to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue.” [In re Pederson, 331 Mich App
445, 472; 951 NW2d 704 (2020), quoting In re Martin, 450 Mich 204, 227; 538
NW2d 399 (1995).]
MCL 712A.19b(3)(c)(i) provides grounds for termination when the following conditions
are established by clear and convincing evidence:
(3) The court may terminate a parent’s parental rights to a child if the court
finds, by clear and convincing evidence, 1 or more of the following:
* * *
(c) The parent was a respondent in a proceeding brought under this chapter,
182 or more days have elapsed since the issuance of an initial dispositional order,
and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is
no reasonable likelihood that the conditions will be rectified within a reasonable
time considering the child’s age.
The first dispositional order in the present case was issued in November 2018, more than
two years before respondent’s parental rights were terminated in December 2020. It is clear,
therefore, that more than 182 days elapsed since issuance of the initial dispositional order. See
MCL 712A.19b(3)(c).
The conditions that led to respondent’s adjudication were an unclean and unsafe home,
substance abuse, lack of parenting skills, and domestic violence. The trial court mentioned the
cleanliness of the parents’ house in passing, but more significant in the court’s view was
respondent’s record regarding drug screens, her parenting ability, and domestic violence.
The initial parent-agency treatment plan required respondent to undergo random drug
screens. According to the testimony of DHHS caseworker Alexis Cole, respondent was only 50%
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compliant with her drug screens throughout the case. That meant that the 50% of the screens that
respondent missed were presumed by petitioner to be positive. Another DHHS worker, Sandra
Burdick, testified that, because respondent stopped drug screening, Burdick did not consider
respondent to have completed the goal of understanding the impact of drug use on parenting.
Respondent contended that she was inconsistent with drugs screens (and parenting time)
because of issues with her phone: either she would lose it, father would break it, or service would
be cut off. Cole testified that phone problems occasionally appeared in the case notes, but they
only recently had become an issue. She also stated that respondent provided inconsistent
explanations about what happened to her phones. Cole indicated that respondent had not shown
her any phones that were not working, and she could not say whether the phone issues were
genuine or excuses for noncompliance. Record evidence indicates that once a parent
communicated to the caseworker that they needed a phone, the caseworker provided one for them.
To the extent that phone problems prevented respondent from moving toward the goal of
reunification with her children, her failure to inform her caseworker when issues with her phone
jeopardized that goal arguably called into question respondent’s cooperation with the parent-
agency treatment plan. “A parent’s failure to participate in and benefit from a service plan is
evidence that the parent will not be able to provide a child proper care and custody.” In re White,
303 Mich App 701, 710; 846 NW2d 61 (2014).
Regarding parenting skills, the trial court’s primary concern was that respondent had not
demonstrated sufficient insight into the magnitude of her children’s needs and what it would take
to meet those needs. Specifically, the court was concerned that respondent did not display any
understanding of her children’s needs for stability, consistency, and attention. This was a concern
throughout the case. Burdick testified that she had been engaged to help the parents improve their
understanding of the children’s special needs and how to provide for them, among other things.
The record is clear that Burdick did not think that respondent had met this goal. In a report to the
court written shortly before the termination hearing, Burdick continued to state that respondent
“should improve her insights into the needs of the children.” Burdick also testified at the
termination hearing that respondent would need to make major changes in her life to be able to
provide a safe and stable environment for the children, and Burdick did not see those changes
happening within a reasonable period.
Other testimony suggested that respondent’s contact with the children was not stable or
consistent, and did not demonstrate sensitivity to their emotional needs. The foster parent, Crispin
Moore, testified that when the oldest child’s tonsils were removed, only one person was allowed
to accompany him during the procedure. She asked if respondent or father wanted to be that
person; they expressed interest, but never gave a firm answer. Four hours after the surgery, the
parents sent Moore a text saying that they would not be able to attend the surgery. Moore also
testified that she invited respondent to call anytime to check on the children and informed
respondent of the children’s medical appointments so she could attend them. However, respondent
rarely, if ever, called to check on the children, and never attended any of their medical
appointments while they were in Moore’s care, or asked about their outcomes. Moore also testified
that the oldest child came back from an overnight stay with the parents dirty, exhausted, and
ravenous. According to Moore, respondent frequently chose to have video visits with the children
during a break from work or before she had to leave to go somewhere, which necessarily resulted
in shortened visits. Moore said that respondent’s video visits averaged 20 minutes in length. Cole
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testified that respondent visited the children the night before the termination hearing began in
December 2020, and the week before that, but her last in-person visit with the two oldest children
was on September 18, 2020. From this series of incidents, the trial court “could reasonably infer
that respondent’s fitness for parenting had not improved.” See In re Miller, 433 Mich at 341.
At the termination hearing, no questions were asked of respondent regarding the children’s
particular needs and how respondent planned to meet them. Respondent’s testimony stressed her
children’s bond with her and how well their parenting time and overnight visits went, and
specifically sought to discredit Moore’s testimony. Respondent testified that she notified Moore
the day before one of the children’s surgery that she would not be able to attend, that Moore did
not actually let her call to check in with the children at unscheduled times, and that respondent’s
video visits with the children routinely lasted between 30 and 60 minutes. The trial court found
Moore’s testimony credible and respondent’s testimony not credible. This Court typically gives
due regard to the special opportunity of the trial court to judge the credibility of the witnesses who
appeared before it. See In re Miller, 433 Mich at 337.
As to domestic violence, there is scant record evidence of the nature or frequency of the
domestic violence, and no evidence that respondent perpetrated domestic violence or that
respondent’s behaviors harmed the children or exposed them to harm. This Court has previously
found clear error when a trial court based its termination decision on a respondent’s involvement
in domestic violence, but the record failed to establish that the respondent was a perpetrator. We
explained,
The critical question is who is the abuser (or abusers), and without that information,
mere references to domestic violence in the abstract cannot be used to support
termination. The record clearly shows that respondent was a victim
of domestic violence, but it contains nothing beyond hints or suggestions that she
may also have been a perpetrator. Hints and suggestions are not enough. [In re
Jackisch/Stamm-Jackisch, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket
No. 357001); slip op at 5.]
In the present case, there was not even a hint or suggestion that respondent was a perpetrator. In
light of Jackisch/Stamm-Jackisch, domestic violence was not a proper basis for the present trial
court’s termination decision on domestic violence.
We conclude nevertheless that the trial court did not clearly err by finding that clear and
convincing evidence established grounds for termination under MCL 712A.19b(3)(c)(i). It is
undisputed that respondent did not fully comply with her treatment plan’s drug screening
requirements. In addition, although there was evidence in the court reports that respondent
successfully completed supportive visitation classes and acted appropriately during in-person
parenting time, there was no indication that respondent fully understood the special needs of her
children and how to accommodate them, and respondent’s own contact with the children,
particularly in 2020, was inconsistent and did not evince a sensitivity to the children’s emotional
needs or need for consistency. Burdick’s testimony indicated that it was very unlikely that
respondent could make the major changes necessary to provide a safe and stable environment
within a reasonable period of time. For these reasons, we affirm the trial court’s finding that clear
and convincing evidence established the grounds for termination of respondent’s parental rights
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under MCL 712A.19b(3)(c)(i). Because we conclude that the trial court did not clearly err by
finding statutory grounds to terminate under MCL 712A.19b(3)(c)(i), we need not consider the
trial court’s findings under MCL 712A.19b(3)(j). In re Sanborn, ___ Mich App at ___; slip op
at 9.
C. BEST INTERESTS
“If the court finds that there are grounds for termination of parental rights and that
termination of parental rights is in the child’s best interests, the court shall order termination of
parental rights and order that additional efforts for reunification of the child with the parent not be
made.” MCL 712A.19b(5). The trial court must find by a preponderance of the evidence that
termination of parental rights is in a child’s best interests. In re Moss, 301 Mich App at 90. In
making its best-interest determination, a trial court may consider the “child’s bond to the parent,
the parent’s parenting ability, the child’s need for permanency, stability, and finality, and the
advantages of a foster home over the parent’s home[.]” In re Gonzales/Martinez, 310 Mich App
426, 434; 871 NW2d 868 (2015) (quotation marks and citation omitted). The court may also
consider “the parent’s compliance with treatment plans, the child’s well-being in care, and the
possibility of adoption.” In re Sanborn, ___ Mich App at ___; slip op at 11. In making a best-
interest determination, the focus is on the child, not the parent. In re Schadler, 315 Mich App 406,
411; 890 NW2d 676 (2016).
The trial court did not clearly err by concluding that termination of respondent’s parental
rights was in the best interests of the children. The trial court acknowledged the strong bond
between respondent and her children. On appeal, respondent argues that, in light of the
presumption that a child’s best interests lies with his or her natural parent, respondent’s bond with
the children should have been dispositive of the best-interest issue. However, the parent-child
bond is only one factor that a trial court must consider in determining the best interests of the
children, see In re Gonzales/Martinez, 310 Mich App at 434, and all the other factors
preponderated in favor of termination. Cole testified that the children were bonded with the foster
parents and their older son. As already discussed, the trial court did not clearly err by concluding
that respondent had not shown evidence of the parenting skills necessary to provide for the
children’s special needs. According to the psychological evaluations submitted to the court, the
children needed a stable and structured environment that provided clear clues about appropriate
behavior. Testimonial evidence established that the children were reunited in a preadoptive foster
home, where they were receiving the therapies they needed to overcome their individual delays
and were scheduled to begin counseling to address their trauma. In light of the foregoing, the trial
court’s finding that termination was in the best interests of the children was not clearly erroneous.
III. VIDEOCONFERENCE PROCEEDINGS
Respondent next argues that her right to due process was violated when the trial court
conducted the termination hearing using videoconferencing technology in violation of
MCR 3.904(B). We disagree.
Because this claim of error comes to us unpreserved, our review is for plain error affecting
the respondent’s substantial rights. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). In
order to establish the right to relief, the respondent must show that there was an obvious error that
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affected the outcome of the proceedings. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253
(2008).
“The fundamental requisite of due process of law is the opportunity to be heard. The
hearing must be at a meaningful time and in a meaningful manner.” In re Rood, 483 Mich at 92
(quotation marks and citations omitted). “Due process requires fundamental fairness, which is
determined in a particular situation first by considering any relevant precedents and then by
assessing the several interests that are at stake.” Id. (quotation marks and citations omitted). “In
Michigan, procedures to ensure due process to a parent facing removal of his child from the home
or termination of his parental rights are set forth by statute, court rule, [DHHS] policies and
procedures, and various federal laws . . . .” Id. at 93.
MCR 3.904(B) governs the use of videoconferencing technology in child protective
proceedings. MCR 3.904(B)(2) allows courts to use such technology under the following
conditions:
(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.
On April 7, 2020, the Michigan Supreme Court entered Administrative Order No. 2020-6
“[i]n response to the extraordinary and unprecedented events surrounding the COVID-19
pandemic in Michigan[.]” Supreme Court Administrative Order No. 2020-6, 505 Mich xc (2020).
The Supreme Court noted that its “highest priority during this crisis” was for courts “to be vigilant
and protect against the further spread of the coronavirus,” but also recognized the necessity of
ensuring that Michigan’s courts “operate[d] as efficiently and effectively as possible under the
circumstances . . . .” Id. To that end, our Supreme Court
authorize[d] judicial officers to conduct proceedings remotely . . . using two-way
interactive videoconferencing technology or other remote participation tools under
the following conditions:
• any such procedures must be consistent with a party’s Constitutional rights;
• the procedure must enable confidential communication between a party and the
party’s counsel;
• access to the proceeding must be provided to the public either during the
proceeding or immediately after via access to a video recording of the proceeding,
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unless the proceeding is closed or access would otherwise be limited by statute or
rule;
• the procedure must enable the person conducting or administering the procedure
to create a recording sufficient to enable a transcript to be produced subsequent
to the activity. [Id. at xci-xcii.]
While this order was in effect “all judges in Michigan [were] required to make a good faith effort
to conduct proceedings remotely whenever possible.”2 Id. at xcii.
On June 26, 2020, our Supreme Court ordered the continued use of “remote participation
technology (video or telephone) as much as possible to reduce any backlog and to dispose of new
cases efficiently and safely.” Supreme Court Administrative Order, 2020-19, 506 Mich ___
(2020). Both of these administrative orders were rescinded on July 26, 2021. See July 26, 2021
order of the Michigan Supreme Court in ADM File No. 2020-08, 507 Mich ___. These orders
governed the trial court’s conduct of the termination hearing in this case.
The trial court’s decision to conduct the termination hearing via videoconferencing
technology did not affect respondent’s substantial rights. See In re Utrera, 281 Mich App at 8.
The trial court held proceedings in compliance with the earlier-quoted administrative orders issued
by our Supreme Court in response to the COVID-19 pandemic. As indicated, in fashioning the
administrative order, the Supreme Court sought to balance the public’s interest in avoiding the
spread of COVID-19 with that of ensuring the efficient and effective resolution of matters before
the courts. See In re Rood, 483 Mich at 92. Respondent received notice of the hearing and the
petition from her caseworker. Petitioner provided respondent with the means of attending the
hearing remotely. She attended each day’s proceeding, and stated under oath that she had been
able to hear all the testimony. The proceeding provided respondents the opportunity for
confidential communication with their attorneys, provided for access by the public, and was
conducted in a way that allowed a transcript to be produced after the hearing.
Respondent has not shown a violation of MCR 3.904(B) as temporarily amended by the
Supreme Court’s administrative orders. The use of videoconferencing technology allowed the
termination hearing to continue while still minimizing close contact between people in an effort to
prevent the spread of COVID-19 during a global pandemic. The circumstances involved balancing
the children’s health, safety, and need for finality and permanency after having been wards of the
court for more than two years, with the health of the respondents, judge, attorneys, court staff, and
witnesses. “Due process is flexible and calls for such procedural protections as the particular
situation demands.” In re Brock, 442 Mich 101, 111; 499 NW2d 752 (1993) (quotation marks,
citation, and alteration omitted). Under the circumstances here presented, respondent has not
demonstrated that the procedure was fundamentally unfair or that she was denied “such procedural
2
This requirement to “make a good faith effort to conduct proceedings remotely whenever
possible” belies respondent’s argument on appeal that nothing in the administrative orders
prevented in-court hearings.
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protections as the particular situation demands.” Id. (quotation marks and citation omitted).
Accordingly, respondent is not entitled to any relief on this ground.
In light of the outbreak of the coronavirus, the administrative orders responding to the
outbreak by requiring courts to use remote participation technology as much as possible, and the
fact that the termination hearing was conducted in accordance with the administrative orders,
respondent has failed to show that the trial court plainly erred by conducting the hearing remotely,
or that the remote hearing affected her substantial rights.
In light of our disposition of these two issues, we need not reach respondent’s claim that
the trial court’s nine-month delay in appointing appellate counsel after her timely filed request was
a violation of her due-process rights. Given that the trial court did not clearly err by terminating
respondent’s parental rights to her children, or violate her due-process rights by using
videoconferencing technology to conduct the termination hearing, the timely appointment of
appellate counsel would not have affected the outcome of her appeal.
Affirmed.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Christopher M. Murray
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