In Re Kester 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UNPUBLISHED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 KESTER, Minors. July 28, 2022
No. 359141
Huron Circuit Court
Family Division
LC No. 15-004467-NA
Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to her
minor children under MCL 712A.19b(3)(j).1 For the reasons stated in this opinion, we vacate the
trial court’s order of adjudication and its order of termination, and we remand for further
proceedings.
I. BASIC FACTS
Respondent divorced the children’s father in 2015. After the divorce, they maintained
separate households and shared custody of the children. Later in 2015, their seven-month-old child
sustained bruising to the side of his face while he was in his father’s care. He was taken to a
hospital. Medical personnel determined that the injuries were indicative of abuse. Following an
investigation by Child Protective Services (CPS), petitioner, the Department of Health and Human
Services, filed a petition seeking removal of the children from the care of respondent and the
children’s father. Respondent entered a plea of admission, the trial court took jurisdiction over the
children, and respondent was ordered to comply with a case-service plan. She was offered and
participated in a number of services, including services aimed at helping her recognize and respond
to risks associated with exposing her children to both sexual offenders and violent individuals.
1
The children’s father voluntarily relinquished his parental rights to the children. He is not a party
to this appeal.
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In May 2016, petitioner recommended that the children be returned to respondent’s care
because respondent participated in and appeared to benefit from the services offered. In November
2016, the court terminated its jurisdiction over the children. At that time, respondent and the
children’s father were again living together. Between November 2016 and March 2020, CPS
investigated the family several times but the children were not removed.
On March 2, 2020, however, CPS received a complaint of suspected child abuse. The
youngest child—now five years old—was found with bruises on his body, including linear bruising
on his buttocks. The children disclosed that their father hit them with a board and that respondent
was aware that he did so. Although respondent initially denied knowing that the children were hit
with a board, she later admitted that the children told her about the abuse. She also admitted that
she had spoken to the children’s father about his behavior because she did not like it when he used
the board to “discipline” the children.
On March 3, 2020, petitioner filed a new petition seeking removal of the children and
asking the court to again take jurisdiction over them. During the preliminary hearing, the court
authorized the children’s removal, suspended their father’s parenting time, and allowed respondent
supervised visitation.
On August 26, 2020, a pretrial hearing was held. Respondent attempted to enter a plea of
admission to several allegations in the petition; the children’s father, in turn, attempted to enter a
plea of no contest to the allegations in the petition. Contrary to MCR 3.971(B)(3), the trial court
did not advise either respondent or the children’s father of the rights that they would be waiving
by entering a plea. Nor did the court advise them of any of the consequences of their proffered
pleas despite such advice being required by MCR 3.971(B)(4)—(B)(8). Contrary to MCR
3.971(D)(1), the court also made no effort to ascertain whether the proffered pleas were
understanding, voluntary, and knowing. Instead, after determining that respondent and the
children’s father were “minimizing” their admissions, the court directed that respondent and the
children’s father be removed from the hearing.2 After they were removed, the court expressed that
it was disgusted with them, ordered petitioner to file a supplemental petition seeking termination
of their parental rights, and suspended respondent’s parenting time.
Before the proceeding ended, the children’s guardian ad litem (GAL) had the following
exchange with the prosecuting attorney:
Q. So—so, [prosecutor], if—if the—the offer with [respondent] was that
if she gave jurisdiction there would not be additional criminal charges or criminal
charges; does that mean, at this point, does the Prosecutor’s Office intend to file
criminal charges?
2
Because of the COVID-19 pandemic, the pretrial hearing was held using Zoom
videoconferencing. The trial court suggested at a later hearing that allowing respondents to
participate remotely was causing them to misunderstand the severity of the proceedings. However,
when respondent’s lawyer expressed a willingness to appear in person, the court stated that it was
unnecessary.
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A. That was not the offer. We were just seeking jurisdiction. It was
[another prosecutor] who was handling the criminal case. He determined that he
was not going to re-authorize criminal charges. I have not had a hand in anything
that had to do with either of their criminal charges.
It is unclear whether respondent shared the GAL’s understanding that if she entered a plea of
admission, she would not have additional criminal charges brought against her. However, the
record reflects that respondent’s lawyer met with respondent’s criminal lawyer and with the
prosecutor one day before the pretrial. Moreover, the pretrial had previously been adjourned to
allow time for respondent to be arraigned on criminal charges, and it had been adjourned to allow
for ongoing plea discussions. Consequently, it appears likely that respondent may have also been
under the mistaken impression that if she entered a plea in this case she would not be subject to
criminal prosecution.
Following the hearing, petitioner filed a supplemental petition seeking termination of
respondent’s parental rights and the parental rights of the children’s father, and the court entered
an order suspending respondent’s parenting time. The rescheduled pretrial was later adjourned to
allow the lawyers more time. Respondent’s lawyer used that time to meet with respondent for one
hour and to also communicate with her via text message on a number of occasions.
On September 9, 2016, the pretrial hearing was continued. The court began the hearing by
stating that its decision to abruptly end the prior hearing was because, after expressing a
willingness to enter pleas, respondent and the children’s father had minimized the events so as to
deem them inconsequential. The court explained that it had asked for a petition seeking
termination to be filed to see if the court could get “their attention.” Respondent’s lawyer then
made the following statement:
Following the hearing, I had a meeting with my client, and we expanded—I’ve
already provided the numbers that we would give [pleas of admission to] without
any corrections. But number 20 was always the sticky one. So my client and I
expanded that and I gave it to her to think about over the weekend and she contacted
me. I was able to e-mail it [to] everyone, I think yesterday, and. .. it expanded to
about page—and—and I did that on purpose so that it broke down into like one or
two sentences per piece so that if there’s any changes to be made, they’re a lot
easier than a bulky paragraph.
She indicated that, having discussed the matter with respondent, respondent had decided to enter
a plea of admission.
The court decided that it was going to take respondent’s testimony first. It did not,
however, swear her in as a witness. As it relates to advising respondent of the rights she was
waiving and the consequences of her plea, the trial court engaged in the following colloquy with
her:
Q. . . . And, [respondent], you understand that nobody can force you to
make an admission here today? That you have to be—it has to be of your own free
will; do you understand that?
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A. Yes.
Q. Do you also understand that in doing so, you would be giving up your
right to a trial by the Court or by a jury; do you understand that?
A. Yes.
Q. Do you also understand that by giving jurisdiction, it would open up
the—the—the procedure of trying to unify you with your child—or children, but if
you—if the Court determines that you’ve failed after six months, there is a
possibility you could—this case could move toward termination of parental rights?
And if you’ve lost custody of your children, after one—for a full year, then in fact
the Court must look at terminating your parental rights; are you aware of all those
things.
A. Yes.
Q. Knowing those things, is it your intention to make an admission today
to give the Court jurisdiction?
A. Yes.
The court then stated its belief that respondent had made “a knowing and voluntary waiver.”
Respondent’s lawyer and the prosecuting attorney agreed with the court’s assessment.
Thereafter, respondent made unsworn admissions to several of the allegations in the
petition. The court accepted her plea and entered an order taking jurisdiction over the children.
The court restored parenting time to respondent, but it did not order that the petition to terminate
her parental rights be dismissed. Instead, it stated only that it would “table it” for now.
Respondent was provided with services aimed at reunifying her with the children. She
appeared to be benefiting. However, she subsequently failed to protect one of the children from
sexual abuse. Petitioner, therefore, filed a supplemental petition seeking termination of her
parental rights. Following a hearing on the petition, the trial court found by clear and convincing
evidence that termination of respondent’s parental rights was warranted under MCL
712A.19b(3)(j). Then, after a best-interests hearing, the court found by a preponderance of the
evidence that termination of respondent’s parental rights was in the children’s best interests. As a
result, the court entered an order terminating respondent’s parental rights. The court also entered
an injunction precluding respondent from having any contact with the children until they reached
the age of 18.
II. ADJUDICATION
A. STANDARD OF REVIEW
Respondent argues that the trial court’s behavior coerced her into entering a plea of
admission at the September 16, 2020 pretrial hearing. She contends that, as a result, her plea was
not voluntary so the court accepted her plea in violation of MCR 3.971(D). Because she did not
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move to withdraw her plea or otherwise object to the plea procedures in the trial court, this issue
is unpreserved. See In re Pederson, 331 Mich App 445, 462; 951 NW2d 704 (2020). Unpreserved
challenges are reviewed for plain error affecting a respondent’s substantial rights. In re Utrera,
281 Mich App 1, 8; 761 NW2d 253 (2008). On a review for plain error, the respondent “must
establish (1) error occurred; (2) the error was ‘plain,’ i.e., clear or obvious; and (3) the error
affected [the respondent’s] substantial rights.” In re Ferranti, 504 Mich 1, 29; 934 NW2d 610
(2019). “Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the
outcome of the proceedings.” In re Utrera, 281 Mich App at 9.
B. ANALYSIS
Child protective proceedings have two phases: an adjudicative phase followed by a
dispositional phase. In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014). The court
determines whether to exercise jurisdiction over the child during the adjudicative phase. In re
Brock, 442 Mich 101, 108; 499 NW2d 752 (1993). “To acquire jurisdiction, the factfinder must
determine by a preponderance of the evidence” that there is a statutory basis for jurisdiction under
MCL 712A.2. In re Brock, 442 Mich at 108-109. The necessary fact-finding may be determined
in a trial conducted by the court or by a jury. In re Pederson, 331 Mich App at 464. Alternatively,
a respondent may waive his or her right to trial and admit the allegations of the petition or plead
no contest to them. Id.
Due process and our court rules require a trial court to advise” a respondent of the rights
that will be waived by the respondent’s plea “and of the consequences that may flow from it.” In
re Ferranti, 504 Mich at 30. The version of MCR 3.971(B) in effect at the time that respondent
entered her plea provided:
(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
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(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 any errors in the
adjudicatory process, which may be challenged in an appeal from the court's initial
order of disposition;
(7) that an indigent respondent is entitled to appointment of an attorney to
represent the respondent on any appeal as of right and to the 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).
In this case, the trial court plainly erred by advising respondent of only one of the rights
that she was waiving by entering a plea. Specifically, although the court advised respondent that
by pleading she was waiving her right to a trial, see MCR 3.971(B)(3)(a), the court did not advise
her that she was also waiving her right to have petitioner prove the allegations in the petition by a
preponderance of the evidence, to have the witnesses against her appear and testify under oath, to
cross-examine the witnesses, and to have witnesses subpoenaed, see MCR 3.971(B)(3)(b)—(3)(e).
The court also plainly erred by not advising respondent of any of the consequences of her
plea. First, the court did not advise her that her plea could later be used as evidence in a proceeding
to terminate her parental rights. See MCR 3.971(B)(4). Instead, the court told her that her plea
would allow her access to reunification efforts and, if those efforts were unsuccessful, then it might
result in the termination of her parental rights. In doing so, the court suggested that if she did not
plea, services aimed at reunification would not be available. The court made no effort to advise
respondent that, generally, she would have a continuing child-support obligation if her parental
rights were terminated. See MCR 3.971(B)(5). Further, the court did not advise respondent that
she had a right to appeal the order of adjudication and that if she were indigent she would be
entitled to have a lawyer appointed to her to represent her in such an appeal. See MCR 3.971(B)(6)
and (5). Finally, the court neglected to warn respondent that her failure to appeal the initial
dispositional order might result in her being barred from challenging the assumption of jurisdiction
in an appeal from an order terminating her parental rights. See MCR 3.971(B)(6).
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The errors in this case are akin to the errors in In re Ferranti. In that case, the trial court
wholly failed to advise the respondent-parents of the consequences of their pleas and the rights
that they were giving up. In re Ferranti, 504 Mich at 30. Our Supreme Court determined that the
error affected the respondent-parents’ substantial rights, reasoning:
The respondents were deprived of their fundamental right to direct the care,
custody, and control over JF based on those invalid pleas. And the invalid pleas
relieved the Department of its burden to prove that the respondents were unfit at a
jury trial, with all of its due-process protections. See Sanders, 495 Mich at 405
(explaining that in an adjudication trial the respondent “is entitled to a jury,. .. the
rules of evidence generally apply,. .. and the petitioner has the burden of [proof]”).
These constitutional deprivations affected the very framework within which
respondents’ case proceeded. There was error, it was plain, and it affected the
respondents' substantial rights. See [In re] Mitchell, 485 Mich [922] at 922
[(2009)]; [In re] Hudson, 483 Mich [928] at 928[; 763 NW2d 618 (2009)].
Finally, we conclude that the error here seriously affected the fairness,
integrity, or public reputation of judicial proceedings. The trial court did not advise
the respondents that they were waiving any of the important rights identified in
MCR 3.971(B)(3). And it failed to advise the respondents of the consequences of
entering their pleas. MCR 3.971(B)(4). This failure resulted in the respondents’
constitutionally defective pleas and undermined the foundation of the rest of the
proceedings. The defective pleas allowed the state to interfere with and then
terminate the respondents’ fundamental right to parent their child. Due process
requires more: either a plea hearing that comports with due process and the court
rule or, if respondents choose, a trial. MCR 3.971; MCR 3.972. [In re Ferranti,
504 Mich at 30-31.]
In this case, the trial court failed to advise respondent of the majority of the rights outlined
in MCR 3.971(B)(3), of the consequences of her plea as outlined by MCR 3.971(B)(4)—(5), and
of her appellate rights and the consequences of failing to timely exercise them as outlined in MCR
3.971(B)(6)—(8). As a result, the trial court effectively tainted the adjudicative stage of the
proceeding. And, as in Ferranti, that error seriously affected the fairness, integrity, or public
reputation of judicial proceedings by allowing the state to interfere with and ultimately terminate
respondent’s fundamental right to parent her children.
Additionally, given the record in this case, we have serious misgivings as to whether the
plea entered by respondent was voluntary. MCR 3.971(D)(1) prohibits the court from accepting a
plea of admission “without satisfying itself that the plea is knowingly, understandingly, and
voluntarily made.” Here, the court asked respondent if she understood “that nobody can force you
to make an admission here today” and that her admission was “to be of your own free will.”
Respondent indicated that she understood. However, the record reflects that when respondent had
previously failed to enter a plea to the satisfaction of the trial court, she was immediately punished.
She was kicked out of the proceedings and, in her absence, her parenting time was suspended and
petitioner was directed by the court to file a petition seeking termination of her parental rights.
There is nothing on the record to suggest that the termination petition would be dismissed and her
parenting time would be restored even if she chose to exercise her right to an adjudication trial.
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Instead, at the time that respondent entered her plea, the only reasonable inference that can be
drawn is that she believed the failure to enter a plea to the court’s satisfaction would result in the
case proceeding on the termination petition and that she would continue to have no parenting time
whatsoever with her children. In light of this record, respondent’s unsworn statement that she
understood that the decision to enter a plea was a decision free of coercion is insufficient to
overcome the inference that her plea was not voluntarily because of the trial court’s unapologetic
and coercive conduct.3
Vacated and remanded for further proceedings. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Christopher M. Murray
/s/ Stephen L. Borrello
3
Under different circumstances, we would not consider respondent’s challenge to the
voluntariness of her plea. MCR 3.971(B)(8) provides that a respondent’s failure to “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)” may bar the respondent “from challenging the assumption of jurisdiction
in an appeal from the order terminating parental rights . . . “ In turn, MCR 3.971(C) expressly
allows only for a challenge to the assumption of jurisdiction premised upon the court’s failure to
“properly advise the respondent of their rights to appeal pursuant to subrule (B)(6)—(8).” Here,
had the court properly advised respondent of her right to an appeal of the order of adjudication, we
would have barred respondent’s untimely challenge to the voluntariness of her plea. Respondent’s
untimely challenge to the order of adjudication is only proper because of the court’s failure to
properly advise respondent of her appellate rights.
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