IN RE MONTES/ADAMS MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of ADAN ARAMIS MONTES,
ALEXANDRA ALISE MONTES, and
AVIYONNE ACASIA-CHRISTINE ADAMS,
Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
March 8, 2007
Petitioner-Appellee,
v
No. 273081
St. Joseph Circuit Court
Family Division
LC No. 05-000520-NA
ALEXIS ANTONIO MONTES,
Respondent-Appellant,
and
QUINCY WASHINGTON, BRIAN ADAMS, and
AMBROSIA CHRISTINE-MARIE ADAMS,
Respondents.
Before: Servitto, P.J., and Talbot and Schuette, JJ.
PER CURIAM.
Respondent1 appeals as of right from the trial court orders2 terminating his parental rights
to the minor children under MCL 712A.19b(3)(h) and (n)(i). We affirm. This appeal is being
decided without oral argument pursuant to MCR 7.214(E).
Respondent claims that he was denied due process by the trial court’s taking of
jurisdiction over the children based on the plea of their mother only, without providing him a
trial on the allegations of the petition. Because this issue is not preserved for appellate review,
1
All references to “respondent” refer to Alexis Antonio Montes only.
2
The trial court entered two termination orders, one relating to Aviyonne only and one relating
to Adan and Alexandra.
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our review is limited to plain error affecting substantial rights. Kern v Blethen-Coluni, 240 Mich
App 333, 336; 612 NW2d 838 (2000). “To avoid forfeiture under the plain error rule, three
requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or
obvious, 3) and the plain error affected substantial rights.” Id.
Michigan case law clearly allows the taking of jurisdiction over a child based on the plea
of only one parent. In In re CR, 250 Mich App 185, 205; 646 NW2d 506 (2002), where the
father contended that his parental rights were erroneously terminated because there was no
adjudication regarding him, this Court concluded that “the court rules simply do not place a
burden on a petitioner like the [DHS] to file a petition and sustain the burden of proof at an
adjudication with respect to every parent of the children involved in a protective proceeding
before the Court can act in its dispositional capacity. The family court’s jurisdiction is tied to the
children, making it possible, under the proper circumstances, to terminate the parental rights
even of a parent who, for one reason or another, has not participated in the protective
proceeding.” Id. at 205. The primary consequence of the lack of adjudication specifically
relating to respondent is that any grounds for termination of his parental rights would constitute
“circumstances new or different from the offense that led the court to take jurisdiction” and
would therefore have to be proven by clear and convincing legally admissible evidence. MCR
3.977(F)(1)(b) (emphasis added).3 Thus, this Court in In re CR, supra at 205-206, held that “the
petitioner must provide legally admissible evidence in order to terminate the rights of the parent
who was not subject to an adjudication . . . .”
The father in In re CR, supra at 204-205, also argued that the denial of an adjudication
and other alleged errors denied him due process by depriving him of notice of the allegations
against him. The Court noted that the father did not claim a lack of notice of the hearing at
which his parental rights were terminated and further found, based on the extensive allegations
of the termination petition as well as the father’s participation in a number of earlier hearings,
that he had actual notice of the grounds on which termination was sought and was not denied due
process. Id. at 204-205, 208-209. In the instant case, the record similarly reflects that
respondent was personally served with notice of the termination hearing and with the termination
petition specifying the factual basis on which termination was sought, but he did not participate
in any hearings except the initial one in June 2005 and the final hearing at which his parental
rights were terminated.
Applying a due process analysis to the facts of this case reveals no due process violation.
The constitutional sufficiency of the procedure may be tested by the balancing test set forth in
Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed2d 18 (1976):
[I]dentification of the specific dictates of due process generally requires
consideration of three distinct factors: first, the private interest that will be
affected by the official action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional
3
By contrast, when termination is not sought on the basis of new or different circumstances, the
rules of evidence do not apply to the termination hearing. MCR 3.977(G)(2).
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or substitute procedural safeguards, and finally, the Government’s interest,
including the function involved and the fiscal and administrative burdens that the
additional or substitute requirement would entail. [See also In re AMB, 248 Mich
App 144, 209; 377 NW2d 421 (1985).]
It is clear that the interest in caring for one’s child is a compelling one. In re Render, 145
Mich App 344, 349; 377 NW2d 421 (1985). However, the risk of an erroneous deprivation of
the right because no adjudication was held on the allegations against respondent appears
negligible when he has admitted that he committed criminal sexual conduct against a sibling of
the minor children and will be incarcerated until, at least, 2010. Further, while the adjudication
established the state’s temporary custody over the children, respondent could not be permanently
deprived of parental rights absent a finding that a statutory basis for that action was established
by clear and convincing evidence, MCL 712A.19b(3), a standard which the United States
Supreme Court deemed adequate to satisfy the dictates of due process. Santosky v Kramer, 455
US 745, 767; 102 S Ct 1388; 71 L Ed2d 599 (1982). The probable value of an adjudication trial
concerning the specific allegations against respondent was minimal because he does not dispute
that he committed criminal sexual conduct against a sibling of the children. Finally, the
government has a significant interest in protecting the welfare of the children. In re Brock, 442
Mich 101, 112-113; 499 NW2d 752 (1993). Weighing all of these factors, we conclude that
where jurisdiction over the children was established by their mother’s plea, the denial of an
adjudicative trial relating to allegations against respondent did not deny him due process.
Accordingly, no plain error occurred.4
Respondent also asserts that a remand is required because the trial court did not make
findings on the record concerning the best interests of the children. Again, because this issue is
not preserved for appellate review, our review is limited to plain error affecting substantial
rights. Kern, supra at 336.
In In re Gazella, 264 Mich App 668, 677; 692 NW2d 708 (2005), this Court noted that
“[n]either the statute nor the court rule requires the court to make specific findings on the
question of best interests, although trial courts usually do.” Where no party offers evidence that
termination is clearly not in the best interests of the child, trial court findings concerning the
child’s best interests are not required. Id. at 678. “For a valid termination order to be entered
4
Respondent also states that he was entitled to notice of the adjudication, but because he fails to
elaborate on this point or to cite any authority in connection with it, the issue is abandoned. In re
Gazella, 264 Mich App 668, 679; 692 NW2d 708 (2005); Yee v Shiawassee Co Bd of Com’rs,
251 Mich App 379, 406; 651 NW2d 756 (2002). Likewise, his unelaborated comment that his
telephonic participation in hearings was not secured after his incarceration as required by MCR
2.004(F) is not included in his statement of issues presented, and is not accompanied by citation
to any authority other than MCR 2.004. Therefore, this issue is also abandoned. Yee, supra at
406. In any event, we note that jurisdiction over respondent was obtained by personal service
before the termination hearing, MCL 712A.12. We further conclude that neither of these alleged
errors would affect the outcome of this matter.
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when no evidence is offered that termination is clearly not in the child’s best interests, all that is
required is that at least one statutory ground for termination be proved.” Id.
Here, no evidence was offered to suggest that termination of respondent’s parental rights
was contrary to the best interests of the children. Moreover, the statutory grounds for
termination were adequately supported by legally admissible evidence. MCR 3.977(F)(1)(b).
Termination was warranted under MCL 712A.19b(3)(n)(i) because respondent admitted that he
committed criminal sexual conduct against the children’s sibling, then age four or five. It is well
established that a parent’s treatment of one child is probative of how he may treat other children.
In re Laflure, 48 Mich App 377, 392; 210 NW2d 482 (1973); In re AH, 245 Mich App 77, 84;
627 NW2d 33 (2001). Where respondent sexually abused the children’s sibling, it is reasonable
to conclude that the continuation of the parent-child relationship would be harmful to the
children and is, therefore, not in their best interests. MCL 712A.19b(3)(n)(i). Since
respondent’s earliest release date is in January 2010, it is also clear that that he cannot provide
the children with a normal home for at least two years, and cannot provide proper care and
custody for them within a reasonable time. MCL 712A.19b(3)(h). The testimony of the foster
care worker further indicated that respondent failed to provide proper care and custody for the
children after they were placed in foster care. Id.
Because no evidence was presented to show that termination of respondent’s parental
rights was contrary to the best interests of the children, and where the evidence was sufficient to
establish at least one statutory ground for termination, the trial court’s failure to make specific
best interest findings on the record does not constitute error, much less plain error. Kern, supra
at 336; In re Gazella, supra at 678.
Affirmed.
/s/ Deborah A. Servitto
/s/ Michael J. Talbot
/s/ Bill Schuette
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