IN RE AUSHA NIA TUCKER MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of AUSHA NIA TUCKER, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
September 15, 2009
Petitioner-Appellee,
v
No. 289919
Washtenaw Circuit Court
Family Division
LC No. 08-000029-NA
GENEAL ROBERSON, JR.,
Respondent-Appellant,
and
CHANTELLA TUCKER,
Respondent.
In the Matter of AUSHA NIA TUCKER, Minor.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 289920
Washtenaw Circuit Court
Family Division
LC No. 08-000029-NA
CHANTELLA TUCKER,
Respondent-Appellant,
and
GENEAL ROBERSON, JR.
Respondent.
Before: Sawyer, P.J., and Cavanagh and Hoekstra, JJ.
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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
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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
1
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
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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 §§ 19b(3)(g) and (j) were proven with respect
to respondent Roberson. Those subsections allow a court to terminate parental rights under the
following circumstances:
2
On appeal, the prosecutor refers to an updated case service plan, unsigned parent-agency
agreements, and two reunification assessments in support of its position that reasonable efforts at
reunification were made with respect to respondent Roberson. These documents indicate that
multiple services were provided to “the family,” without distinguishing between the child’s
parents, her sibling’s father, and the foster parents. Further, all of these documents are dated
October 31, 2008, a week before the termination hearing, and approximately three weeks after
the pretrial hearing. Thus, they cannot be deemed to meet the requirements of procedural due
process or to constitute reasonable efforts toward reunification.
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(a) The child has been deserted under any of the following circumstances
***
(ii) The child’s parent has deserted the child for 91 or more days and has
not sought custody of the child during that period.
***
(g) The parent, without regard to intent, fails to provide proper care or
custody for the child and there is no reasonable expectation that the parent will be
able to provide proper care and custody within a reasonable time considering the
age of the child.
***
(j) There is a reasonable likelihood, based on the conduct or capacity of
the child’s parent, that the child will be harmed if he or she is returned to the
home of the parent.
MCL 712A.19a(2) requires that reasonable efforts toward reunification be provided in all
cases except those specifically listed. In this case, petitioner does not argue that it was not
obligated to make reasonable efforts toward reunification with respect to both respondents.
Rather, it asserts that it complied with this statutory obligation.
A. Respondent Tucker
Respondent Tucker argues that because petitioner filed the termination petition less than
a week after the initial dispositional order was entered, she was not afforded a reasonable
opportunity to participate in or benefit from services. We disagree.
Although her initial participation in services was voluntary, respondent Tucker had been
offered drug screens and supervised visitation since the first preliminary hearing. Despite her
expressed willingness to participate in services, she failed to do so or keep in contact with the
caseworker. Services were not provided before the jurisdictional trial, not because of petitioner’s
failure to offer them, but because respondent Tucker failed to make herself available.
After the jurisdictional trial, respondent Tucker submitted to some drug screens, and was
allowed one supervised visit. Respondent Tucker then missed a screen, tested positive for
alcohol, and tested positive for adulterants. At the initial disposition, respondent Tucker was
again ordered to submit to random drug screens as a condition to supervised visitation and was
also ordered to submit to a psychological evaluation, a substance abuse assessment, and to
comply with the evaluators’ recommendations. She was also ordered to attend counseling and
parenting classes, and to obtain appropriate housing and employment. Respondent Tucker
missed her next drug screen and tested positive for cocaine on August 1, 2008.
The termination petition was filed on August 5, 2008, but respondent Tucker was
informed that she could continue to participate in services. Respondent Tucker thereafter failed
to report for her drug screens, so they were cancelled. She appeared for the first part of her
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substance abuse evaluation, but did not complete it, and did not participate in any other services.
It was not until three months later, after the termination hearing started, that respondent Tucker
signed up for parenting classes and GED classes. When the hearing concluded, she had not yet
attended any sessions.
It is apparent from this record that respondent Tucker was offered the opportunity to
participate in services since the beginning of this case, but chose not to participate. The record
demonstrates that petitioner made reasonable efforts to reunify respondent Tucker with her child.
With regard to the statutory grounds for termination, the record shows that respondent
Tucker failed to visit, attend any hearings, or have any meaningful contact with the agency for a
109-day period between February 22, 2008, and June 10, 2008. An attorney appeared on her
behalf, and twice represented that respondent Tucker had transportation problems, but there was
no explanation for her absence at two subsequent hearings, and no request for custody or
visitation was made on her behalf. Her attorney last asked for visitation on March 3, 2008, but
even that was 99 days before respondent Tucker’s appearance at the jurisdictional trial.3 We
conclude that there was clear and convincing evidence that respondent Tucker deserted the child
for 91 or more days without seeking custody of the child during that period. The trial court did
not clearly err in finding that termination of respondent Tucker’s parental rights was appropriate
under § 19b(3)(a)(ii).
With regard to § 19b(3)(g), the evidence showed that respondent Tucker never had
employment, appropriate housing, or transportation. She missed many of her drug screens, and
she tested positive for alcohol, cocaine, and adulterants during the 30-day period before the
termination petition was filed. She also failed to complete her substance abuse evaluation,
misrepresented her history of alcohol and drug use, and refused to admit that she had a substance
abuse problem. She failed to attend her psychological evaluation. She visited the child only
once, due to her failure to provide clean screens. Moreover, she was involved in various
domestic violence episodes and non-domestic altercations, resulting in at least two arrests. She
continued to violate the PPO that she obtained against respondent Roberson. She provided
excuses for all of the failings identified by petitioner, and never made any progress on any of the
problems identified. In addition, she did not sign up for parenting classes or GED classes until
the termination hearing was underway. There was clear and convincing evidence that respondent
Tucker failed to provide proper care for the child, and given her lack of progress, there was no
reasonable expectation that she would be able to do so within a reasonable time considering the
age of the child. Therefore, the trial court did not clearly err in finding that termination of
respondent Tucker’s parental rights was also appropriate under § 19b(3)(g).
Similarly, with respect to § 19b(3)(j), the evidence showed that when the child was
removed from respondent Tucker’s care, her apartment was filthy and unsanitary, and there was
evidence of drug and alcohol use. Respondent Tucker never obtained appropriate housing. She
continued to test positive for drugs, alcohol, and adulterants. At the time of the termination
3
Respondent Tucker spoke to a caseworker on the telephone sometime in March 2008, but there
is no indication that she sought custody of the child at that time.
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hearing, she was living with a man whose last name she did not recall. She continued to engage
in altercations with others, resulting in two arrests. She continued to maintain contact with
respondent Roberson, despite the PPO. She never meaningfully participated in services or
otherwise addressed any of the issues identified by petitioner. The trial court did not clearly err
in finding that the child was reasonably likely to be harmed if placed in respondent Tucker’s
home, thereby justifying termination of respondent Tucker’s parental rights under § 19b(3)(j).
For these reasons, we affirm the trial court’s order terminating respondent Tucker’s
parental rights to the minor child.
B. Respondent Roberson
As explained in section I, supra, petitioner had an obligation to make reasonable efforts
to reunify the child with respondent Roberson, even if he was the noncustodial parent,
particularly when it became clear that respondent Tucker was not making progress. See In re
Rood, supra at 119-122. However, the only services offered were the single initial drug screen, a
home assessment, supervised visitation at the agency, and contact with the caseworker. No other
services were offered to respondent Roberson because he was not initially made a respondent. In
particular, he was not offered services to address any of the issues identified by the agency, i.e.,
domestic violence, parenting skills, lack of family support, and lack of an appropriate child care
plan, despite his many telephone calls expressing interest in visiting and caring for the child.
Thus, we conclude that petitioner violated its statutory duty to make reasonable efforts to reunify
the child with respondent Roberson. Further, as more fully discussed below, we conclude that
the effect of this violation precluded a finding that the statutory grounds for termination were
proven by clear and convincing evidence. See id. at 89.
With regard to § 19b(3)(g), the evidence showed that respondent Roberson left the child
alone on the night that the child was taken into care, visited her only once, and failed to provide a
child care plan for when he worked out of town. Respondent Roberson also declined to appear
in court after his attorney was dismissed, had a history of domestic violence, maintained a
relationship with respondent Tucker, routinely violated the PPO, and showed no insight into the
long-term effects of domestic violence on children. Thus, we agree that there was clear and
convincing evidence that respondent Roberson failed to provide proper care for the child.
However, respondent Roberson was not offered services to address any of these issues.
Lack of contact and support is not automatic grounds for termination; it is evidence of neglect.
Id. at 113, 114-117. “[A] showing of neglect, alone, merely triggers a parent’s right to
participate in services. It does not automatically justify termination.” Id. at 114. “Moreover, . . .
the statutory scheme does not relieve the state of its responsibility to make reasonable efforts
toward reunification with a parent merely because, as here, that parent has a history of . . .
violence toward adults.” Id. at 118.
In the present case, there was no evidence that respondent Roberson ever harmed the
child, his home was found to be appropriate, and the caseworker had no concerns during his
single visit with the child. Further, respondent Roberson was successfully caring for other
children, including a two-year-old child who was present during the termination hearing, who the
trial court noted was remarkably well behaved. Respondent Roberson lost his job as an over-theroad truck driver and was looking for local employment, obviating the need to provide overnight
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day care for the child. Considering petitioner’s violation of its statutory duty to make reasonable
efforts toward reunification against this backdrop, the evidence did not enable the trial court to
find by clear and convincing evidence that respondent Roberson, if provided with appropriate
services, would not have been able to provide proper care and custody within a reasonable time.
See In re Rood, supra at 114-117. Therefore, the trial court clearly erred in finding that
termination of respondent Roberson’s parental rights was warranted under § 19b(3)(g).4
With regard to § 19b(3)(j), the evidence again showed that respondent Roberson left the
child alone on the night she was taken into care, had a history of domestic violence, maintained a
relationship with respondent Tucker, routinely violated the PPO, and had no insight into the
long-term effects of domestic violence on children. Conversely, there was no evidence that
respondent Roberson ever harmed the child, his home was found to be appropriate, and he was
successfully caring for other minor children. As the Court recognized in In re Rood, supra at
118, a trial court “thwart[s] the statutory scheme by presuming that [a] respondent was a danger
to [the child] on the basis of his criminal history when that history did not include any of the
enumerated offenses.” Id. at 118. Here, petitioner had a duty to provide services to respondent
Roberson even if he had a history of domestic violence, showed little insight, and espoused the
view that children should be placed with their mothers. Petitioner’s violation of its statutory duty
to make reasonable efforts toward reunification again precludes a finding that there is a
reasonable likelihood that the child would be harmed if placed in respondent Roberson’s home.
Id. at 114-117. Therefore, termination of respondent Roberson’s parental rights was also
improper under § 19b(3)(j).
For these reasons, we reverse the order terminating respondent Roberson’s parental rights
and remand for further proceedings not inconsistent with this opinion.
Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent
with this opinion. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Joel P. Hoekstra
4
We note that the supplemental termination petition did not request termination of respondent
Roberson’s parental rights under § 19b(3)(g). However, respondent Roberson does not argue
that it was improper for the trial court to consider § 19b(3)(g) for that reason.
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