IN RE CASEY-MARTIN MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DYLAN MICHAEL CASEYMARTIN and ZACHARY JOHN CASEYMARTIN, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
March 12, 2009
Petitioner-Appellee,
v
No. 286907
Montcalm Circuit Court
Family Division
LC No. 2007-000301-NA
RODNEY LEE CASEY,
Respondent-Appellant,
and
BRANDI MARTIN,
Respondent.
In the Matter of DYLAN MICHAEL CASEYMARTIN and ZACHARY JOHN CASEYMARTIN, Minors.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 286908
Montcalm Circuit Court
Family Division
LC No. 2007-000301-NA
BRANDI MARTIN,
Respondent-Appellant,
and
RODNEY LEE CASEY,
Respondent.
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Before: Sawyer, P.J., and Zahra and Shapiro, JJ.
PER CURIAM.
In these consolidated appeals, respondent-father appeals as of right from the trial court
order terminating his parental rights to the minor children pursuant to MCL 712A.19b(3)(a)(ii),
(b)(i), (c)(i), (g), and (j). Respondent-mother appeals from the trial court order terminating her
parental rights pursuant to MCL 712A.19b(3)(a)(ii), (b)(ii), (c)(i), (g), and (j). We affirm.
On appeal, respondents do not challenge the trial court’s findings that petitioner proved
the statutory grounds for terminating their parental rights. Rather, respondent-father argues that
the trial court erred in denying him the right to be present at the permanent custody hearing and
that petitioner failed to provide him services. Respondent-mother argues that her parental rights
were prematurely terminated because a treatment plan was not effectuated in a timely manner,
and the court erred in failing to coordinate her treatment plan with the state of Florida. We
disagree.
To terminate parental rights, the trial court must find that at least one of the statutory
grounds for termination set forth in MCL 712A.19b(3) has been met by clear and convincing
evidence and that termination is in the best interest of the child(ren). MCL 712A.19b(5); In re
Sours, 459 Mich 624, 632-633; 593 NW2d 520 (1999).
Respondent-father’s issues on appeal (Docket No. 286907)
Respondent-father argues that the trial court’s decision denying his request for an
adjournment of the permanent custody hearing while he was detained in the county jail, which
prevented him from being present, was error requiring reversal that violated his due process
rights.
The grant or denial of a motion to adjourn is within the discretion of the trial court. In re
Krueger Estate, 176 Mich App 241, 247-248; 438 NW2d 898 (1989). The trial court did not
abuse its discretion in denying respondent-father’s request for an adjournment. MCR 3.973,
which governs dispositional hearings like permanent custody hearings, states that “the
respondent has the right to be present or may appear through an attorney,” MCR 3.973(D)(2),
and the trial court “may proceed in the absence of parties provided that proper notice has been
given.” MCR 3.973(D)(3). MCR 3.973(D)(2) prohibits the trial court from denying a
respondent’s right to attend the hearing, but does not require the trial court to secure the
respondent’s physical presence at the dispositional hearing of a proceeding to terminate parental
rights. In re Vasquez, 199 Mich App 44, 49; 501 NW2d 231 (1993). Generally, the trial court
may hold the hearing in the respondent’s absence if he received proper notice. MCR
3.973(D)(3). In the present case, respondent-father did not dispute that he was personally served
with notice, and the court did not deny respondent-father’s right to be present. Additionally,
respondent-father did not prioritize attendance at any of the previous court hearings because he
never appeared for any of the hearings prior to his incarceration.
Respondent-father argues that due process entitled him to be present for the permanent
custody hearing because he was incarcerated and unable to appear. This Court considers de novo
the legal question of “whether constitutional due process . . . has been satisfied.” Reed v Reed,
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265 Mich App 131, 157; 693 NW2d 825 (2005). To determine when the court is obligated to
assure a parent’s presence at a court hearing so as not to violate due process guarantees, this
Court applies the three-part balancing test set forth in Mathews v Eldridge, 424 US 319, 335; 96
S Ct 893; 47 L Ed 2d 18 (1976), which balances the private interest at stake, the risk of an
erroneous determination in the absence of the parent’s physical presence, and the government’s
interest in avoiding the burden of physically producing the parent for the termination hearing.
Vasquez supra.
By applying the Mathews balancing test in the instant case, it is unlikely that the risk of
an erroneous deprivation was increased by respondent-father’s absence because termination of
his parental rights was based on his failure to comply with his treatment plan, address his mental
health issues, provide suitable housing, and demonstrate parental fitness. Although a further
adjournment for respondent-father’s testimony may not have been an onerous burden on the trial
court, when considered in light of the minimal likelihood that such testimony could have altered
the outcome of the trial, the denial of the request for adjournment did not constitute a denial of
due process. And, although one adjournment for an absent parent in one case may not have
burdened the court, the court would be burdened if it were obligated to adjourn every time a
parent was absent. Accordingly, the failure to adjourn the proceedings did not deprive
respondent of any constitutional right.
Considering that respondent-father was represented by counsel at all hearings, that he
failed to appear for any of the court hearings throughout the case, and that he made no effort to
contact his attorney or the trial court throughout the case despite having received proper notice, it
was harmless error for the court to proceed in his absence. More importantly, sufficient
independent evidence supported the trial court’s termination of respondent-father’s parental
rights, and his participation in the hearing would not have affected the outcome of the
proceedings. People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). Any constitutional
error was not decisive to the outcome, and this Court does not reverse on the basis of harmless
error. In re Gazella, 264 Mich App 668, 675; 692 NW2d 708 (2005); see also MCR 2.613(A).
Additionally, the decision to adjourn is within the court’s discretion, and should only be
granted for good cause, after taking into account the children’s best interests, and for as short a
time as possible. MCR 3.923(G). In this case, respondent-father was arrested the day before the
permanent custody hearing and neither the court nor petitioner knew of his incarceration until the
morning of the hearing. And, although respondent-father was detained and unavailable to attend
the hearing, refusing to disturb the termination order was not inconsistent with substantial
justice. MCR 2.613(A) provides:
An error in the admission or the exclusion of evidence, an error in a ruling
or order, or an error or defect in anything done or omitted by the court or by the
parties is not ground for granting a new trial, for setting aside a verdict, or for
vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to
take this action appears to the court inconsistent with substantial justice.
Given that the trial court found five separate statutory bases to terminate respondent-father’s
parental rights, reversal of the court’s order would be inconsistent with substantial justice.
Respondent-father also argues that petitioner failed to provide him services. However,
his contention is contrary to the trial court’s record, which shows that petitioner’s difficulties in
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facilitating services were due to respondent-father’s lack of efforts. The caseworker informed
respondent-father of her efforts to contact him so they could meet to review his treatment plan
and look into parenting time, which was suspended due to his lack of participation. The
caseworker eventually met with respondent-father on March 18, 2008, and sent him a letter
informing him where he could find parenting classes. She also provided him information so that
he could obtain a psychological evaluation, but respondent-father never followed through. When
petitioner’s service providers came to his house, respondent-father was never home or available
for random drug screens. And, when the caseworker attempted a scheduled visit on April 2,
2008, respondent-father’s house appeared to have been vacated. The CPS worker tried to contact
respondent-father again at home after April 3, 2008, but was unable to locate him or contact him
through his cell phone. Although respondent-father indicated his willingness to participate in the
treatment plan, he made no efforts to do so. Also, respondent-father was dishonest with the
caseworker, stating that he did not have a criminal or CPS history, even though he had both a
criminal record and prior CPS involvement.
Respondent-father also argues that his inability to read or write was not accommodated
by petitioner’s services. His assertion is contrary to the evidence on the record. On April 2,
2008, when the caseworker learned of respondent-father’s limitations, she offered to link him
with literacy resources in the area. However, respondent-father refused literacy services,
claiming that he could rely on his girlfriend to help him. Respondent-father even contacted the
caseworker after receiving her letter, thereby demonstrating that his inability to read did not
prevent him from responding to her letters or participating in a treatment plan. Thus,
respondent-father’s claim that petitioner failed to provide him services or meet his special needs
is without merit.
Moreover, respondent-father has not provided legal authority to establish that the
petitioner’s failure to make reasonable efforts alone establishes a basis for relief. MCL
712A.18f(4). Rather, the absence of reasonable efforts by the petitioner has only been relevant
to assessing whether the statutory grounds for termination were established. See, e.g., In re
Newman, 189 Mich App 61, 65-68; 472 NW2d 38 (1991). Contrary to respondent-father’s
assertion, he was offered services, but failed to take advantage of the services offered to him.
Moreover, the court did not clearly err in terminating respondent-father’s parental rights under
five statutory bases, none of which was due to petitioner’s failure to offer him services.
Respondent-mother’s issues on appeal (Docket No. 286908)
Respondent-mother argues that the four-month delay occurring in between Dylan’s and
Zachary’s removal and the formulation of her treatment plan resulted in her inability to
participate in services and work toward her children’s return. Although the children were placed
in protective care on July 25, 2007, and the court ordered adoption of the initial service plan did
not occur until disposition on October 15, 2007, respondent-mother failed to explain how the
delay unfairly prejudiced her case or interfered with her ability to comply with her treatment
plan. “A party may not merely announce his position and leave it to [this Court] to discover and
rationalize the basis for his claim.” In re Toler, 193 Mich App 474, 477; 484 NW2d 672 (1992).
Because adjudication was held on July 26, 2007, following the preliminary hearing,
disposition occurred earlier than it would have had the case proceeded on a standard schedule
with the pretrial hearing and adjudication occurring on separate dates following the preliminary
hearing. Also, respondent-mother never expressed dissatisfaction with progress of her case by
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contacting the caseworker to begin working on her treatment plan, seeking out services
independently, or requesting an earlier court date. And, because disposition occurred two-and-ahalf months after adjudication, respondent-mother was given the benefit of additional time to
address her issues but still failed to make significant strides in meeting the requirements of her
treatment plan for nine months.
Respondent-mother also argues that the trial court had a duty to fashion a treatment plan
that could be coordinated between Michigan and Florida, the state where she lived. She further
argues that petitioner was obligated to develop a treatment plan that would best meet the needs of
the parents with the goal of reunification. However, respondent-mother failed to provide
authority for her argument. See In re Toler, supra at 477.
A trial court may modify the requirements of a case service plan. MCL 712A.19(7);
MCR 3.975(G)(4). The use of the term “may” signifies a discretionary provision; therefore, the
trial court’s decision is reviewed for an abuse of discretion. Mollett v City of Taylor, 197 Mich
App 328, 339; 494 NW2d 832 (1992); In re Humphrey Estate, 141 Mich App 412, 423; 367
NW2d 873 (1985). MCL 712A.13(a)(12) and MCR 3.965(E)(4) authorize the court to modify
treatment plans as is in the juvenile’s best interests upon the request of any party. Contrary to
respondent-mother’s assertion, petitioner had a duty to create a treatment plan tailored to meet
the family’s needs. MCL 712A.18f(3); MCL 712A.19(7); In re Trejo Minors, 462 Mich 341,
346 n 3; 612 NW2d 407 (2000). Petitioner complied with its duty, but respondent-mother chose
to leave the state, never made a motion requesting modification of the treatment plan, and failed
to maintain contact with the caseworker. Moreover, when determining how to modify the case
service plan, the court’s focus should be placed on the children’s best interests and not a parent’s
convenience.
The trial court accommodated respondent-mother’s move to Florida by modifying the
treatment plan to allow her substance abuse treatment in a location other than Michigan, but
respondent-mother failed to comply with the treatment plan by seeking substance abuse
treatment or demonstrating that she was drug free since moving to Florida. Respondent-mother
voluntarily compromised her ability to participate in the case service plan in Michigan by
moving out of state without communicating her decision to petitioner or making an effort to
coordinate services before leaving. She also failed to leave her contact information with the
caseworker who was unable to locate her and thus unable to coordinate services. The
caseworker did not learn of respondent-mother’s whereabouts in Florida until Medicaid flagged
her case, and neither respondent-mother nor her caseworker in Florida was responsive to requests
for information. Thus, given the history of the case and respondent-mother’s lack of efforts, the
trial court did not abuse its discretion by not modifying the case service plan to coordinate with
services in the state of Florida.
Affirmed.
/s/ David H. Sawyer
/s/ Brian K. Zahra
/s/ Douglas B. Shapiro
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