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STATE OF MICHIGAN COURT OF APPEALS
In the Matter of AUSHA NIA TUCKER, Minor.

DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee, v GENEAL ROBERSON, JR., Respondent-Appellant, and CHANTELLA TUCKER, Respondent.

UNPUBLISHED September 15, 2009

No. 289919 Washtenaw Circuit Court Family Division LC No. 08-000029-NA

In the Matter of AUSHA NIA TUCKER, Minor.

DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee, v CHANTELLA TUCKER, Respondent-Appellant, and GENEAL ROBERSON, JR. Respondent. No. 289920 Washtenaw Circuit Court Family Division LC No. 08-000029-NA

Before: Sawyer, P.J., and Cavanagh and Hoekstra, JJ. -1-

PER CURIAM. In Docket No. 289919, respondent Geneal Roberson, Jr., appeals as of right from the trial court's order terminating his parental rights to the minor child under MCL 712A.19b(3)(g) and (j). In Docket No. 289920, respondent Chantella Tucker appeals as of right from the same order, which terminated her parental rights to the same child under MCL 712A.19b(3)(a)(ii), (g), and (j). We affirm the termination of respondent Tucker's parental rights in Docket No. 289920, reverse the termination of respondent Roberson's parental rights in Docket No. 289919, and remand for further proceedings. I. Due Process In Docket No. 289919, respondent Roberson argues that the trial court's decision terminating his parental rights must be reversed because his rights to procedural and substantive due process were violated. We agree in part and disagree in part. Whether the child protective proceedings complied with respondent Roberson's rights to substantive and procedural due process is a question of law that we review de novo. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009). But because respondent Roberson did not raise any due process issue in the trial court, this issue is unpreserved. We review unpreserved issues for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). A. Substantive Due Process Substantive due process requires that a statute bear "a reasonable relation to a permissible legislative objective." In re McEvoy, 267 Mich App 55, 70; 704 NW2d 78 (2005). Thus, substantive due process " `demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.' " McAvoy v H B Sherman Co, 401 Mich 419, 436; 258 NW2d 414 (1977), quoting Nebbia v New York, 291 US 502, 525; 545 S Ct 505; 78 L Ed 940 (1934). As respondent Roberson argues, parents have a fundamental substantive due process liberty interest--more precious than any property right--in the care, custody, and management of their children. In re Rood, supra at 91, 111; see also In re B & J, 279 Mich App 12, 22-23; 756 NW2d 234 (2008). Thus, "[i]n order to comply with the guarantees of substantive due process, the state must prove parental unfitness by at least clear and convincing evidence before terminating a respondent's parental rights." Id. at 23 (internal quotations and citation omitted). The Juvenile Code satisfies this standard because it requires that a statutory ground for termination of parental rights be proven by clear and convincing evidence. Id.. An error in the application of this process does not amount to a violation of substantive due process. B Procedural Due Process A parent's liberty interest in the care, custody, and management of his child does not evaporate simply because he has not been a model parent or has lost temporary custody of his child to the state. In re Rood, supra at 91. Thus, where the state moves to terminate parental -2-

rights, it must provide the parents with fundamentally fair procedures, i.e., with procedural due process. Id. At a minimum, procedural due process requires notice and an opportunity to be heard. Id. at 92. Due process also requires fundamental fairness in light of the interests at stake.1 Id. A parent who is not named as a respondent "must be notified of and permitted to participate in each hearing, including dispositional review hearings, permanency planning hearings, and termination proceedings." Id. at 94. State and federal laws impose many procedural requirements on a state agency before it may terminate parental rights. See id. at 95106. Accordingly, a "respondent may certainly claim procedural error in an action brought by the state to terminate this right if the state fails to comply with the required procedures and its failure may be said to have affected the outcome of the case." Id. at 107 (emphasis added). In In re Rood, our Supreme Court found that the respondent father, who was not initially named as a respondent, was deprived of procedural due process by the state's failure to notify him of the proceedings or to engage him to participate, despite his having appeared and provided a current address to the court and the agency. Id. at 107-108, 118-119. The Court then examined whether the respondent father was sufficiently responsible for his own lack of participation as to excuse the due process violations. Id. at 111-114. The Court concluded that he was not, and that the trial court clearly erred in finding otherwise. Id. at 111. The Court also concluded that "[b]ecause respondent's rights were terminated directly and indirectly because of his uninformed lack of participation, he was deprived of minimal due process." Id. at 122. In In re Rood, the respondent was aware that proceedings were pending against respondent Tucker, but he did not receive notice of any hearings or proceedings after the initial disposition, until the termination petition was filed. See id. at 80-83, 113. Further, the respondent in In re Rood had no notice that services and evaluations were available to him, and he was never notified "that his parental rights could be at stake in a neglect case against [the mother]." Id. at 113 (emphasis in the original). "In other words, although he had actual notice of [the child's] removal and the allegations against [the mother], by no means did he receive actual notice of the full nature and import of the proceedings with regard to his own rights." Id. Moreover, the Court stated that "[s]ubsequent notice of the termination petition and the appointment of counsel are insufficient to afford due process when respondent's rights were terminated in part because he had not participated in the earlier proceedings." Id. (emphasis in original). The Court added that "[e]ven if respondent willfully failed to follow up with the DHS or the court in the neglect proceeding against [the mother], he did not effectively forfeit his constitutional parental rights at a later termination proceeding against him by doing so." Id. at 114 (emphasis in original). The Court recognized that the respondent father's failure to visit and support his child was "certainly additional evidence of his own neglect," but stated that "a

The fairness of a statutory or regulatory process is to be evaluated in light of the interest at stake, the risk of erroneous deprivation, and the state's interest, including the function involved and the burdens imposed by having to provide other procedures. In re Rood, supra at 92-93, 122. Here, however, respondent Roberson is challenging only the fairness of the process as applied to him, not the fairness of the procedures mandated by the statutes.

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showing of neglect, alone, merely triggers a parent's right to participate in services. It does not automatically justify termination." Id. In the present case, respondent Roberson was aware of his child's removal, and of the pendency of proceedings against the mother. It is unclear whether he was served with notices of hearings and copies of court orders before the termination petition was filed. However, he conceded that the caseworkers informed him of the hearings after his attorney was released, and urged him to appear. Therefore, this case is not as egregious as In re Rood, and respondent Roberson certainly bears more responsibility for his failure to participate than did the respondent in In re Rood. As in In re Rood, however, there is no indication that respondent Roberson was ever informed that his parental rights could be at stake in the neglect case pending against the mother, until the termination petition was filed. As stated by the Court in In re Rood, supra at 113, "although he had actual notice of [the child's] removal and the allegations against [the mother], by no means did he receive actual notice of the full nature and import of the proceedings with regard to his own rights." (Emphasis added.) We also note that, in In re Rood, the trial court asserted jurisdiction over the child in June 2006, and the termination petition was filed in January 2007. Id. at 80, 83. In the interval, the respondent could have been ordered to participate in services, if he had been given proper notice. In the present case, by contrast, the adjudicative trial was held on June 10, 2008, the trial court asserted jurisdiction over the child on June 30, 2008, and the initial dispositional hearing was held on July 30, 2008. The termination petition was filed less than a week later, on August 5, 2008. MCL 712A.13a(8)(c) provides that "participation in the initial services plan is voluntary without a court order." See also MCR 3.965(E)(2). Under MCL 712A.6, a court acquires jurisdiction over adults only incidentally to its jurisdiction over a minor child or juvenile. See also MCL 712A.6b (jurisdiction over non-parent adults). Similarly, MCL 712A.1(1) provides that once a court finds that a child is within the court's jurisdiction, "the court may enter any of the following orders of disposition that are appropriate for the welfare of the juvenile and society in view of the facts proven and ascertained." See also MCR 3.973(A) and (D). In the present case, respondent Roberson's parental rights were terminated because of his failure to visit the child, his failure to provide a day care plan, his failure to attend court hearings, his continued contacts with the mother in violation of a personal protection order (PPO), past incidents of domestic violence, and his lack of insight concerning the effects of domestic violence on a child. As in In re Rood, respondent Roberson's failure to address these issues before the trial court's assertion of jurisdiction is evidence of neglect. However, "a showing of neglect, alone, merely triggers a parent's right to participate in services. It does not automatically justify termination." In re Rood, supra at 114. It was fundamentally unfair to terminate respondent Roberson's parental rights on the basis of his failure to address these issues at a time when he did not know that his parental rights were at stake and the trial court did not yet have authority to order participation in services. The trial court did not assert jurisdiction over the child until June 30, 2008. At that time, the trial court did not order respondent Roberson to address these issues and did not notify him that his -4-

parental rights were in jeopardy. Rather, the order of adjudication simply states that the prior visitation order is continued. The initial dispositional order entered on July 30, 2008, states that the parents shall comply with and benefit from the case service plan and suspends respondent Roberson's visitation. However, the case service plan does not list any services available to respondent Roberson, and did not require him to do anything except obtain child care for his work-related absences and a supervisor for weekend visitation, even though the worker knew that respondent Roberson had lost his employment. In any event, even if the plan could be interpreted as ordering respondent Roberson to participate in services, he was not given a fair opportunity to comply because the termination petition was filed less than a week later. At the October 8, 2008, pretrial hearing, respondent Roberson's request for supervised visitation was denied, and the court again failed to order him to participate in services.2 We conclude that the termination proceeding against respondent Roberson was conducted in violation of his right to procedural due process, and that this error was "plain." The effect of this error on respondent Roberson's substantial rights is addressed in section II(B), infra. II. Termination of Parental Rights Both respondents argue that the trial court erred in finding that the statutory grounds for termination were established by clear and convincing evidence and that petitioner failed to make reasonable efforts toward reunification. The existence of a statutory ground for termination must be proven by clear and convincing evidence. MCR 3.977(F)(1)(b) and (G)(3); In re Miller, 433 Mich 331, 344-345; 445 NW2d 161 (1989); see also MCL 712A.19b(1). The trial court's findings of fact are reviewed for clear error and may be set aside only if, although there may be evidence to support them, the reviewing court is left with a definite and firm conviction that a mistake has been made. MCR 3.977(J); Miller, supra at 337. Due regard is given to the trial court's special opportunity to judge the credibility of witnesses. Id. The trial court terminated respondent Tucker's parental rights under MCL 712A.19b(3)(a)(ii), (g), and (j), but found that only

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