IN RE JASON LAMARR PINKSTON JR MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of JASON LAMARR PINKSTON,
JR., Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
March 20, 2007
Petitioner-Appellee,
v
No. 273172
Saginaw Circuit Court
Family Division
LC No. 05-030124-NA
JASON L. PINKSTON, SR.,
Respondent-Appellant.
Before: Servitto, P.J., and Talbot and Schuette, JJ.
PER CURIAM.
Respondent appeals as of right from the trial court order terminating his parental rights
under MCL 712A.19b(3)(c)(i), (g), (h), and (j). We affirm.
I. FACTS
Respondent has been incarcerated in the Milan Federal Correctional Institution since June
2005, for distribution of five grams or more of cocaine. The petition for termination of
respondent’s parental rights, filed in December 2005, stated that termination was requested
because respondent never established paternity, had a criminal history, was incarcerated until
2014, and had not provided for the child. Respondent appeared by telephone at the first hearing,
and was appointed counsel by the trial court. At the second hearing, respondent failed to appear
by telephone because the federal prison did not cooperate. Citing respondent’s failure to
establish paternity of the child, the court-appointed attorney was granted permission to withdraw
from the case. Respondent’s request for a second chance to participate in the proceedings was
granted in May 2006, but he again failed to participate by telephone in the termination trial, due
to the federal prison. Respondent’s counsel1 told the trial court that she could proceed in
respondent’s absence. Termination of respondent’s parental rights was granted because, due to
1
This was respondent’s second court-appointed attorney.
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respondent’s incarceration, he could not provide proper support for the child, visit the child, or
participate in a treatment plan. Additionally, respondent did not offer an alternative care plan.
II. DUE PROCESS & TERMINATION OF PARENTAL RIGHTS
Respondent does not argue that the trial court erred in finding that the statutory grounds
for termination were established by clear and convincing evidence, but instead argues that his
rights to due process and confrontation were violated when the trial court proceeded without his
appearance by telephone after arrangements with the federal prison in which he was incarcerated
were not successful. We disagree.
A. Standard of Review
Unpreserved, constitutional error is reviewed under the plain error rule. “To avoid
forfeiture under the plain error rule, three requirements must be met: 1) error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Further, this Court
reviews decisions terminating parental rights for clear error. Clear error has been defined as a
decision that strikes this Court as more than just maybe or probably wrong. In re Trejo, 462
Mich 341, 356-357; 612 NW2d 407 (2000). The trial court’s findings of fact may not be set
aside unless they are clearly erroneous, and this Court shall give regard to the trial court’s special
opportunity to judge the credibility of witnesses who appeared before it. In re Miller, 433 Mich
331, 337; 445 NW2d 161 (1989).
B. Analysis
We find that the trial court did not commit plain error by proceeding with the termination
hearing in the absence of respondent’s appearance by telephone.
This Court addressed the issue of whether a respondent incarcerated in another state is
required to be present for a termination of parental rights hearing in In re Vasquez, 199 Mich
App 44; 501 NW2d 231 (1993). Here, respondent was not imprisoned in another state, but was
in a federal prison located in Michigan. Vasquez is analogous, however, because of the trial
court’s lack of authority over a federal facility. In Vasquez, the respondent was incarcerated in
Texas and did not appear for the trial at all. Id. at 47. After applying the Mathews balancing
test, the Vasquez court found that the respondent’s due process rights were not violated where he
could have appeared by telephone, among other mediums, and he was well represented by
counsel. Id. at 47-49. The Mathews balancing test is as follows:
[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 actions; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of
additional 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 procedural requirement would entail. [Mathews v
Eldridge, 424 US 319, 335; 96 SCt 893; 47 L Ed 2 18 (1976).]
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This Court has well acknowledged that the interest affected by parental termination
hearings is an important one. Vasquez, supra at 47; In re Render, 145 Mich App 344, 347; 377
NW2d 421 (1985). Regarding the second prong of the test, the trial court’s attempts to have
respondent appear by telephone were not successful. However, respondent was represented by
counsel who had spoken to him and was aware of his position on the petition to terminate.
Counsel also stated that there was no reason that she could not proceed in respondent’s absence.
There was little risk of an erroneous deprivation of such interest through the procedures used
because of counsel’s statements.
Lastly, the trial court could have continued the matter and attempted again to secure
respondent’s appearance by telephone. However, the trial court had informed the federal prison
of its intent to hold proceedings on that date and time and made all possible arrangements for
respondent’s appearance by telephone and still he was not available. Additionally, respondent’s
presence by telephone at other hearings was random despite every attempt to arrange for his
appearance with prison officials. Because of this history of unreliability, there was no reason to
believe that a continuance would have secured respondent’s presence by telephone. Therefore,
the trial court did not violate respondent’s due process rights by proceeding with the termination
hearing in his absence.
Further, respondent’s right to confrontation was not violated because he had no right to
confrontation in a child protection proceeding. In re Brock, 442 Mich 101, 108; 499 NW2d 752
(1993).
Respondent also argues that the trial court improperly took jurisdiction in this matter.
The order finding jurisdiction was not directly appealed, however, and cannot be challenged in
the context of this appeal. In re Hatcher, 443 Mich 426, 444; 505 NW2d 834 (1993). In any
event, in taking jurisdiction, the trial court provided notice to respondent and found that the
child’s mother’s neglect of the child was the basis for asserting jurisdiction. Once jurisdiction is
established, the trial court can make determinations against any adult. MCR 3.973(A).
Affirmed.
/s/ Deborah A. Servitto
/s/ Michael J. Talbot
/s/ Bill Schuette
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