In Re T Hewitt Minor ( 2024 )

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UNPUBLISHED
October 23, 2024
3:42 PM
In re T. HEWITT, Minor.
No. 368861
St. Joseph Circuit Court
Family Division
LC No. 2022-000699-NA
Before: N. P. HOOD, P.J., and O’BRIEN and REDFORD, JJ.
N. P. HOOD, P.J. (dissenting).
I respectfully dissent. I would conclude that the trial court plainly erred by accepting
respondent-mother’s plea of admission because it was not knowingly and understandingly made,
vacate the orders of adjudication and termination regarding respondent-mother, and remand for
further proceedings.
I. BACKGROUND
The majority accurately summarizes the background of this case: this case arises out of a
Child Protective Services investigation of alleged domestic violence incidents involving
respondent-mother and respondent-father. Some aspects of the factual and procedural background
warrant amplification.
The catalyst for the petition was a June 2022 incident, during which respondent-father
allegedly threw a metal figurine at respondent-mother’s head and assaulted her with a propane
torch while she held TH in her arms.1 After the incident, respondent-mother continued to have
contact with respondent-father. Following this continued contact, in September 2022, the
1
Respondent-father allegedly told police officers he called to the scene that respondent-mother
attempted to assault him with multiple objects during the incident, including a knife. According
to the petition, respondent-father was “charged with domestic violence” after the incident, but
respondent-mother was not.
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Department of Health and Human Services (DHHS) petitioned the trial court to exercise
jurisdiction over TH under MCL 712A.2(b)(2) (unfit home or environment).2 Respondent-mother
entered a plea of admission to DHHS’s allegations regarding TH’s exposure to domestic violence.
Before entering her plea, respondent-mother expressed a lack of understanding regarding
the meaning of an “admission” and its implications in the context of the termination hearing. The
presiding referee advised respondent-mother of her trial rights and provided an explanation of the
dispositional phase of the proceedings. The referee asked respondent-mother whether she wished
to enter a plea of admission in light of his explanation, and she responded, “I don’t understand.”
The referee allowed respondent-mother to confer with her attorney, after which the following
exchange occurred:
The Court: Okay, we’re going to go back on the record in the matter of the
Hewitt case, case number 22-699 NA. We were in the middle of giving mother
her—her rights as to trials and what could happen, and she requested some time to
speak with her attorney and so we are back and I’ll go to her attorney as to—is there
a resolution today.
[Respondent-Mother’s Attorney]: Yes, your Honor. We had a chance to—
[respondent-mother] had some questions. We discussed (inaudible) an admission.
We want to make an admission.
The Court: Okay. All right. Is that true, Mom.
[Respondent-Mother]: (inaudible)
The Court: Okay, you’re still under oath. I did put you under oath prior and
do you understand—anything I need to explain to you or that I just—just went over
with you that you—
[Respondent-Mother]: (inaudible)
The Court: Well, I want to reiterate. You’ll have a case plan after today that
you’ll need to follow . . . And I think you already know the majority of what needs
to probably be done, so, um, and so the main thing is you need to understand that
when you enter your admission today it could be used you [sic] on a future
termination of your parental rights. We’re not saying that’s going to happen, but
you just need to know that. Okay.
[Respondent-Mother]: (inaudible)
2
DHHS arguably petitioned the trial court to exercise jurisdiction over TH under MCL
712A.2(b)(1) (failure to provide proper care or custody) as well. Regardless, the trial court
exercised jurisdiction over TH under MCL 712A.2(b)(2), only.
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The Court: And you need—maybe a little bit—put the mic a little bit closer
because I don’t know if we’re picking up enough.
[Respondent-Mother]: (inaudible)
The Court: All right. Okay. So, at this point I’m going to turn it over to
your attorney as to the admission, okay. He’s going to ask you some questions.
Respondent-mother’s attorney then established what the court accepted as the factual basis
for the plea. Respondent-mother admitted that TH “was exposed to domestic violence,” and that
it was contrary to TH’s welfare to be exposed to domestic violence. She did not specify whether
she was the victim of domestic violence or what her role in the exposure was.
Even after the factual basis, the referee continued to express reservations about respondent-
mother’s willingness to enter a plea:
The Court: Well, the issue is your demeanor is not really giving any
confidence to this Court as to—as to your admission, um, is this truly your—your
admission, you’re willing and wanting to do, take—give this admission today.
[Respondent-Mother]: I don’t really understand what admission means. I
mean it’s like—I don’t understand. He explained to me what I have to do and
(inaudible) and that’s fine. If that’s what you’re asking me, yes.
After this exchange, the referee addressed an outburst from respondent-father. Throughout
the plea hearing, respondent-father was disruptive. At times during the hearing, he directly
addressed respondent-mother and attempted to affect her decision whether to enter a plea. The
referee eventually removed respondent-father from the courtroom before continuing with
respondent-mother’s plea colloquy.
The referee then accepted respondent-mother’s plea without eliciting further testimony.
The trial court adopted the referee’s recommendation and exercised jurisdiction over TH, removed
him from respondent-mother’s care, and ordered respondent-mother to complete a case service
plan. Over one year later, the trial court terminated respondent-mother’s parental rights under
MCL 712A.19b(3)(j) based in part on its finding that she failed to rectify the domestic violence
cycle with respondent-father. This appeal followed.
II. PLEA OF ADMISSION
On appeal, respondent-mother argues that the trial court erred by accepting her plea of
admission during the adjudicatory phase of the proceedings because her plea was not knowingly
or understandingly made. I agree.
Whether child-protection proceedings complied with a respondent’s right to due process
presents a question of constitutional law, which this Court reviews de novo. In re Sanders, 495
Mich 394, 403-404; 852 NW2d 524 (2014). However, because respondent-mother did not move
to withdraw her plea or otherwise challenge its validity in the trial court, this issue is unpreserved.
In re Pederson, 331 Mich App 445, 463; 951 NW2d 704 (2020). This Court reviews unpreserved
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errors arising out of child-protection proceedings for plain error affecting substantial rights. Id.To establish plain error, the respondent must show that (1) an error occurred, (2) the error was
plain, i.e., clear or obvious, and (3) the error affected substantial rights. Id. “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 1, 9; 761 NW2d 253 (2008). “When plain error has occurred, ‘[r]eversal
is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent
defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings independent of the defendant’s innocence.” Id., quoting In re Osborne (On
Remand, After Remand), 237 Mich App 597, 606; 603 NW2d 824 (1999).
“In Michigan, child protective proceedings comprise two phases: the adjudicative phase
and the dispositional phase.” In re Sanders, 495 Mich at 404 (citation omitted). During the
adjudicative phase, the court determines whether it may exercise jurisdiction over a child. Id. The
court may exercise jurisdiction over a child if the respondent enters a plea of admission or no
contest to the allegations in the petition, see MCR 3.971, or if DHHS proves the allegations in the
petition at trial, see MCR 3.972. In re Ferranti, 504 Mich 1, 15; 934 NW2d 610 (2019). While
the adjudicative phase is only the first step in child protective proceedings, “it is of critical
importance because the procedures used in adjudicative hearings protect the parents from the risk
of erroneous deprivation of their parental rights.” Id. (quotation marks and citation omitted).
Under the Fourteenth Amendment of the United States Constitution, parents possess the
fundamental right to make decisions regarding the care, custody, and control of their children. In
re Sanders, 495 Mich at 409. For a plea to establish an effective waiver of a fundamental right
under the Fourteenth Amendment of the United States Constitution, it must be knowingly,
understandingly, and voluntarily made. In re Ferranti, 504 Mich at 21. “Our court rules reflect
this due-process guarantee.” Id. MCR 3.971(D)(1) provides that the court may not accept a plea
“without satisfying itself that the plea is knowingly, understandingly, and voluntarily made.” And
MCR 3.971(B) requires the court to advise the respondent on the record or in a writing made part
of the file of the allegations in the petition, their right to an attorney, the rights they waive by
entering a plea, the consequences of the plea, their potential post-termination support obligation,
and the availability of appellate review. In re Ferranti, 504 Mich at 21. See also MCR 3.971(B).
Here, the record reflects deficiencies in respondent-mother’s plea of admission. Many of
her responses to the referee’s inquiries are reflected in the transcript as inaudible, and the referee
repeatedly paused the proceedings to address respondent-father’s outbursts. Respondent-mother
explicitly expressed a lack of understanding regarding the implications of her plea. And although
the referee allowed respondent-mother to confer with her attorney, he accepted her plea without
eliciting clear testimony regarding her knowledge or understanding of its implications, and without
advising her of her right to appellate review.3
On this record, I would not conclude that respondent-mother’s plea of admission was
knowingly and understandingly made. Respondent-mother expressed a lack of understanding
3
After accepting respondent-mother’s plea, the trial court mailed her an advice of appellate rights
form approved by the Supreme Court Administrative Office.
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regarding the implications of her plea, and in doing so, specifically stated, “I don’t really
understand what admission means.” Although respondent-mother had the opportunity to consult
with her attorney, she never expressed that her attorney rectified her lack of understanding
regarding the implications of her plea. The trial court thus plainly erred by accepting respondent-
mother’s plea of admission.
Furthermore, the trial court’s plain error prejudiced respondent-mother by affecting the
outcome of the proceedings. As our Supreme Court has explained, a constitutionally defective
plea “undermine[s] the foundation of the rest of the proceedings.” In re Ferranti, 504 Mich at 31.
A defective plea allows the state to interfere with and later terminate a respondent’s parental rights.
Id. “Due process requires more: either a plea hearing that comports with due process and the court
rule or, if respondents choose, a trial.” Id., citing MCR 3.971 and MCR 3.972. The trial court’s
plain error thus affected the outcome of the proceedings.
This plain error that warrants reversal for two reasons. First, respondent-mother’s apparent
equivocation and confusion at the plea hearing combined with the insufficient factual basis for the
plea—as addressed in the following paragraph—creates a serious risk that she pleaded to
something she did not do. Second, and equally concerning, the effect of this plea on the fairness,
integrity, and public reputation of the court warrants reversal. As it stands, the trial court accepted
respondent-mother’s plea under the following conditions: she admitted to exposing TH to domestic
violence, her abuser was present and harassing her for the bulk of the plea hearing, and she
explicitly stated that she did not understand what her admission meant. To preserve the fairness
and integrity of these proceedings, the trial court must hold a hearing where respondent-mother
may knowingly, understandingly, and voluntarily decide to let the plea stand or invoke her other
rights.
Lastly, respondent-mother does not challenge the factual basis underlying her plea.
Ordinarily, this Court does not address issues that were not raised below or on appeal. Tingley v
Kortz, 262 Mich App 583, 588; 688 NW2d 291 (2004). However, it has the discretion to review
issues not raised by the parties. Id. (explaining that “[t]he jurisprudence of Michigan cannot be,
and is not, dependent upon whether individual parties accurately identify and elucidate controlling
legal questions.”). MCR 3.971(D)(2) provides that a court may not accept a plea “without
establishing support for a finding that one or more of the statutory grounds alleged in the petition
are true, preferably by questioning the respondent . . . .” DHHS petitioned the trial court to
exercise jurisdiction over TH under MCL 712A.2(b)(2) (unfit home or environment). During the
plea hearing, respondent-mother admitted that TH was exposed to domestic violence in the family
home, and exposure to domestic violence was contrary to his welfare. Yet she did not specify
whether she was the perpetrator or the victim of domestic violence. The fact that a respondent was
or is a victim of domestic violence is not a valid basis for terminating parental rights. In re
Jackisch/Stamm-Jackisch, 340 Mich App 326, 334; 985 NW2d 912 (2022), citing In re Plump,
294 Mich App 270, 273; 817 NW2d 119 (2011). Therefore, I would also conclude that respondent-
mother’s admission did not provide a sufficient factual basis for her plea.
III. CONCLUSION
For the reasons previously stated, I would vacate the orders of adjudication and termination
regarding respondent-mother and remand for further proceedings.
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/s/ Noah P. Hood
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