In Re Campbell , 170 Mich. App. 243 ( 1988 )

170 Mich. App. 243 (1988) 428 N.W.2d 347

In re CAMPBELL

Docket No. 103511.

Michigan Court of Appeals.

Decided July 19, 1988.

Baker & Chadwick (by C. Clifford Chadwick), for the Campbell children.

Lynn Rose, for Barbara Horn.

Before: HOOD, P.J., and CYNAR and R.B. BURNS,^[*] JJ.

CYNAR, J.

Respondent, Barbara Horn, appeals as of right from a July 31, 1987, order terminating her parental rights to her three children, twins, V---- and K----, born November 13, 1983, and C----, born July 15, 1978. We affirm.

A preliminary hearing was held on June 8, 1984, based on Madison Heights Protective Services Worker Jane Ishii's complaint. Following the hearing, V---- and K---- were placed in a foster home and C---- was placed with her maternal grandmother, Virginia Franks. Ishii presented a formal petition to the court on June 18, 1984. The court ordered that the children remain in their prior placements. At the June 28, 1984, initial hearing, Horn and John Campbell (the natural father, who is not a party to this appeal) stood mute to the petition.

At the August 2, 1984, hearing, the probate court ordered that (1) V---- and K---- continue in foster care, (2) C---- be temporarily released to Virginia Franks, (3) Horn and Campbell complete parent education classes, (4) Horn attend Al-Anon meetings, (5) Campbell attend Alcoholics Anonymous meetings, (6) Horn and Campbell receive counseling, and (7) any visitations by Horn and Campbell be supervised.

Subsequently, on June 11, 1986, Campbell pled no contest to the April 7, 1986, petition and the probate court terminated his parental rights. The April 7 petition was later amended. Horn pled no contest to the amended petition with the understanding that the contested disposition be adjourned for six months so that her progress could be monitored. The probate court questioned Horn and then accepted her no contest plea. Horn's attorney was satisfied that the court complied with MCR 6.101(F)(1)-(3). The matter was scheduled for review in six months in accordance with the parties' agreement.

On March 2, 1987, a contested dispositional hearing was held pursuant to recommendations that respondent's parental rights be terminated. Constance Sidor, the foster mother for K---- and V----, testified that respondent had not visited the twins since October 14, 1986. Nancy Rebar, a supervisor of Children's Services of Oakland County Family Services, recommended that respondent's parental rights in the twins be terminated because, in the past three years, she had not parented K---- or V----. Rebar's conversations with the twins' stepfather revealed that respondent had a "neglectful attitude" towards them, that respondent did not really want to parent them, she was attempting to regain custody of the twins so as to ultimately regain custody of C---- and, in the stepfather's opinion, the twins would be better off if he and respondent did not have custody.

After Rebar's testimony, the hearing was adjourned until April 2, 1987, pending the completion of a psychiatric evaluation of respondent. The April 2, 1987, hearing was also adjourned because respondent was hospitalized in a psychiatric hospital in Radford, Virginia.

At the April 29, 1987, hearing, psychology expert Martha Wright testified that she was a therapist at Whaley's Children's Center which is a residential treatment facility for emotionally impaired children. C---- was one of her cases. When she first became involved with C----, C---- was suffering from an attention deficit disorder. She was extremely hyperactive, impulsive and had difficulty attending to any given situation. C---- also showed symptoms of having been sexually abused. C---- told Wright that, while living with her mother and grandmother, the mother would take baths with her and occasionally took C---- to the bars. The mother frequently wore little or no clothing, dressed in front of C----, cuddled under the blanket with her for long periods of time with little or no clothing, and asked C---- to massage her legs. The grandmother also asked C---- to sleep with her. Respondent has also physically abused C---- by hitting her with a wooden spoon if she was inattentive to her mother's needs or misbehaved in school. C---- was apparently sexually abused by a neighbor named Lou. Lou was eventually prosecuted for the molestation at respondent's insistence. However, Lou was in the home several times after respondent's mother first discovered the sexual abuse. C---- felt angry and unprotected by her mother over the incidents with the neighbor. C---- was also sexually provocative around male adults as well as male peers. She would get up in the night, turn on her bathroom light and show her body to a male child living across the hall and she attempted to touch the legs of the male staff at Whaley.

Wright recommended that respondent's parental rights be terminated as to C---- because respondent would not be able to meet her needs based on respondent's history of lengthy psychiatric hospitalization and her need to be hospitalized. Respondent distorts what she is told and sometimes becomes easily enraged. She has minimal patience in dealing with C----'s frustrating behaviors. C---- looks forward to seeing her mother, but afterwards she becomes regressed. C---- was not frightened of seeing her mother. She was afraid of returning to her mother's custody. During a visit with C----, respondent became inappropriately tearful over the medication which C---- was taking to help her function in school. Respondent also cried when C---- reminded her that she might be adopted.

Ruth Szabo, a senior psychologist at the Oakland County Juvenile Court Psychological Clinic, conducted a psychological evaluation of C---- on April 22, 1986. Szabo recommended permanent wardship because respondent did not obtain the parenting help which she needed and did not give the type of emotional support and structure that C---- needed. During her interview with the child, C---- indicated that she had several sexual experiences, including intercourse with the respondent's boyfriend. Respondent told C---- not to tell anyone about these experiences.

Following this hearing, the probate court ordered that respondent undergo a psychological evaluation. At the next scheduled hearing, which took place on July 22, 1987, respondent did not appear nor had she contacted her attorney. After numerous attempts, her attorney was unable to contact her.

At this hearing, Charles Yelton, the children's caseworker, testified that respondent did not complete the parent education classes, did not consistently continue with therapy, was institutionalized in psychiatric wards at least three times, did not comply with the requirement that she be in Al-Anon, and never submitted a custodial plan for the children. Respondent was convicted on a "bad check charge" and sentenced to probation with which she did not comply. Yelton recommended termination of respondent's parental rights because she is a damaged individual since her mother raised her "abnormally" and she was passing that treatment on to her children. Both respondent and her mother physically and sexually abused the children.

Following Yelton's testimony, the probate court summarized the testimony and stated that it would enter an order terminating respondent's parental rights. On July 31, 1987, the probate judge entered an order terminating respondent's parental rights. The order provided that it "incorporates the findings of fact and conclusions of law on a separate written statement to follow." On November 23, 1987, the court issued a twenty-three page opinion setting forth findings of fact and conclusions of law warranting termination. Respondent appealed.

First, respondent alleges that the probate court did not comply with certain requirements of MCR 6.101(F) before accepting respondent's no contest plea. Specifically, she claims that the court did not comply with MCR 6.101(F)(1)(c)(x) by not advising her that she had a right to testify, MCR 6.101(F)(2)(c)(iii) by not asking her if it was her own choice to plead, and MCR 6.101(F)(3)(b)(ii) by not conducting a hearing to establish support for her plea. Respondent did not move to withdraw her plea as required by MCR 6.101(F)(7). Nonetheless, she claims that MCR 6.101(F)(7) should not bar appellate review of this issue because her appellate counsel was unaware of the alleged errors.^[1]

A defendant may not raise the issue of alleged noncompliance with MCR 6.101(F)(1)-(4) unless the defendant has moved to withdraw the plea in the trial court. MCR 6.101(F)(7)(a); People v Richardson, 144 Mich. App. 616, 619; 376 NW2d 167 (1985). Respondent has not preserved the issue. However, even if we address her claims that the judge did not comply with MCR 6.101(F), we find no merit.

At the outset, we note that MCR 6.101 is a criminal procedural rule. Juvenile proceedings in probate court are not deemed criminal proceedings, MCL 712A.1; MSA 27.3178(598.1); In re Stricklin, 148 Mich. 659, 666; 384 NW2d 833 (1986), lv den 425 Mich. 856 (1986). Proceedings in juvenile court need not conform with all the requirements of a criminal proceeding, but essential requirements of due process and fair treatment must be met. In re Gault, 387 U.S. 1, 30-31; 87 S. Ct. 1428; 18 L. Ed. 2d 527 (1967); In re Belcher, 143 Mich. App. 68, 71; 371 NW2d 474 (1985), lv den 424 Mich. 863 (1985).

MCR 6.101(F)(1)(c)(x) states:

Pleas of Guilty and Nolo Contendere. A defendant may plead guilty or nolo contendere only with the court's consent. Before accepting the plea, the court shall personally carry out subrules (F)(1)-(4).

(1) An Understanding Plea. Speaking directly to the defendant, the court shall tell him or her:

* * *

(c) if the plea is accepted, the defendant will not have a trial of any kind, so he or she gives up the rights he or she would have at a trial, including the right:

* * *

(x) to testify at the trial if he or she wants to testify.

Our review of the plea-taking hearing reveals that the judge did not specifically tell respondent that, by giving up the right to trial, she was also giving up her right to testify at the trial. The court did twice advise respondent that she was giving up her right to a trial and the right to present witnesses. Thus, we believe that by advising her of these rights, she was implicitly informed that, by pleading no contest, she was relinquishing her right to testify at a trial. We believe that the court substantially complied with this requirement.

She also claims that she was not asked if it was her choice to plead guilty as required by MCR 6.101(F)(2)(c)(ii). However, we conclude that the court substantially satisfied this requirement by asking her if she wished to plead no contest and by asking her if anyone had made threats or promises to make her enter the plea.

Respondent also alleges a violation of MCR 6.101(F)(3)(ii) since the court did not conduct a hearing to establish support for a finding that she was guilty. The court did not hold a hearing. However, from our review of the hearing, it appears that the parties stipulated that the court could rely on the amended petition as a basis for the plea. The court found sufficient grounds to accept the plea after reviewing the record. Thus, we hold that the probate court substantially complied with MCR 6.101(F) and we see no basis for remanding the case to the probate court to allow respondent to withdraw the plea.

Secondly, respondent claims that the court did not comply with MCR 5.914 when it entered the termination order before making findings of fact, conclusions of law, and providing the statutory basis for the order. This argument is wholly without merit.

Under the juvenile code, an order terminating parental rights may not be entered unless the court makes findings of fact, states conclusions of law, and includes the statutory basis for the order. MCR 5.914; In re Draper, 150 Mich. App. 789, 794-795; 389 NW2d 179 (1986).

Following the final hearing, the court stated that it would enter an order terminating respondent's parental rights. The order was entered on July 31, 1987, indicating that it was incorporating findings of fact and conclusions of law in a separate written opinion to follow. The opinion was issued on November 23, 1987, setting forth findings of fact, conclusions of law, and the statutory basis for the order. Respondent takes issue with the sequence in which this was done. She does not claim any prejudice resulted or that the opinion or order are defective. We see no error in the procedure that was followed.

Thirdly, she claims that the court did not comply with MCR 5.908(A)(2)(b). MCR 5.908(A)(2)(b)^[2] provided:

The interval between the adjudicative phase and the dispositional phase, if any, is within the court's discretion, but may not be more than 28 days after the adjudicative hearing without the parties' consent or without good cause, if the child is taken into custody and not released to a parent, guardian, relative, or other proper custodian.

Respondent pled no contest to the amended petition on June 11, 1986, with the understanding that the contested disposition be adjourned for about six months so that her progress could be monitored. The parties understood that, if she made substantial progress, the prosecutor might consider not pursuing the termination petition. Respondent consented to the six-month adjournment and the adjournment was for good cause. It was intended to give respondent the opportunity to improve as a parent. Therefore, we find no violation of MCR 5.908(A)(2)(b).

Finally, she alleges that the court clearly erred in terminating her parental rights on the basis of neglect. We disagree.

Respondent's rights were terminated pursuant to MCR 712A.19a(e); MSA 27.3178(598.19a)(e), which provides:

Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:

* * *

(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect.

We review a decision to terminate parental rights under the clearly erroneous standard. In re Cornet, 422 Mich. 274, 277; 373 NW2d 536 (1985); In re Bedwell, 160 Mich. App. 168, 172; 408 NW2d 65 (1987). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been committed. In re Cornet, supra, p 278, quoting Tuttle v Dep't of State Highways, 397 Mich. 44, 46; 243 NW2d 244 (1976). The petitioner bears the burden of proving by clear and convincing evidence that termination of parental rights is warranted. In re Bedwell, supra, p 173.

Subsection (e) permits termination of parental rights on the basis of neglect. In Fritts v Krugh, 354 Mich. 97, 114; 92 NW2d 604 (1958), our Supreme Court stated that the "entry of an order for permanent custody due to neglect must be based upon testimony of such a nature as to establish or seriously threaten neglect of the child for the long-run future." Respondent urges this Court to follow a recent group of appellate court cases which favor a showing of "culpable neglect" rather than "non-culpable neglect." See In re Bailey, 125 Mich. App. 522; 336 NW2d 499 (1983); In re McDuel, 142 Mich. App. 479; 369 NW2d 912 (1985); In re Tedder, 150 Mich. App. 688; 389 NW2d 149 (1986), lv den 426 Mich. 874 (1986). In Bailey, the Court found that mentally retarded parents were not neglectful within the statute's meaning if the neglect arose solely from their limited mental abilities, since these limitations were insufficient to establish intent or culpability. 125 Mich. App. 527. McDuel, supra, stated that physical incapacity, multiple sclerosis and confinement to a wheelchair, could not be bases for statutory neglect since acts or omissions due to the incapacities were not blameworthy. 142 Mich. App. 486. Tedder, supra, held that a characterological disorder, paranoid schizophrenia, was insufficient to show statutory neglect since conduct arising from the disorder was not blameworthy. 150 Mich. App. 698-699.

The other line of appellate cases hold that culpability or blameworthiness is not required under the statute. In re Sterling, 162 Mich. App. 328, 337-341; 412 NW2d 284 (1987); In re Riffe, 147 Mich. App. 658, 671-672; 382 NW2d 842 (1985), lv den 424 Mich. 904 (1986); In re Slis, 144 Mich. App. 678, 688; 375 NW2d 788 (1985); and In re Harmon, 140 Mich. App. 479, 483; 364 NW2d 354 (1985).

The Sterling Court found that culpability is not required by the statute. The purpose behind the statute is to protect children from unfit homes. The Sterling Court reasoned that the Legislature did not intend for children to suffer long term damage merely because the neglect by the parents was not culpable. 162 Mich. App. 339-341.

We adopt the Sterling position on this issue. We agree that culpable neglect is not required under the statute.^[3]

In applying the neglect standard, we agree with the probate court that respondent was neglectful of the children and her parental rights were properly terminated. The record evidence amply supports termination.

Affirmed.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.

[1] It should be noted that respondent is arguing the need for compliance with MCR 6.101(F) under the old juvenile court rules since the new rules provide for the procedures for acceptance of a no contest plea. The new court rule for acceptance of no contest pleas in termination cases is MCR 5.971. While the termination rule is similar to MCR 6.101(F), the termination rule does not contain the same requirements. We proceed to analyze the claim under the old rules.

[2] This particular rule is no longer a part of the revised juvenile court rules.

[3] Although Judge CYNAR was on the Bailey panel, subsequent to the decision, Judge CYNAR has reversed his position and chooses to follow the Sterling analysis of this issue. Judge HOOD, who was on the Tedder panel, has similarly reversed his position and also chooses to follow the Sterling analysis of this issue.