IN RE L T MANCIEL II MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
August 12, 2010
In the Matter of L. T. MANCIEL, II, Minor.
No. 296359
Wayne Circuit Court
Family Division
LC No. 02-412296
Before: GLEICHER, P.J., and ZAHRA and K.F. KELLY, JJ.
PER CURIAM.
Respondent Larry Darnell Manciel, the involved minor child’s father, appeals as of right
from a circuit court order terminating his parental rights pursuant to MCL 712A.19b(3)(g) and
(j). Respondent challenges as inadequate the level of parental services afforded or offered by
petitioner Department of Human Services (DHS). We reverse and remand for further
proceedings.
Respondent fathered the minor child with SS, who had given birth to nine previous
children; SS lost her parental rights to eight of the previous children. This child protective
proceeding commenced in October 2009, shortly after the instant child’s birth. The DHS filed a
petition seeking termination of SS’s and respondent’s parental rights. Most of the petition
allegations centered on SS, the prior terminations of her parental rights, her history of drug
abuse, and her neglect to avail herself of prenatal care. According to the petition, the instant
minor “tested positive for cocaine at the time of [his] delivery” and required antibiotic treatments
related to SS’s syphilitic condition. With respect to respondent, the petition noted that he had
“failed to assist the mother in obtaining prenatal care or drug treatment,” despite respondent’s
“aware[ness] of the mother’s drug history as well as the mother not having her children in her
care prior to her pregnancy with [the minor],” and that respondent had “an extensive criminal
record.” A referee authorized the petition in mid-October 2009.
Respondent appeared at a preliminary hearing on October 14, 2009 and a November 10,
2009 pretrial hearing. Before the November 10, 2009 hearing, respondent had signed an
affidavit of parentage, which entitled him to commence parenting time with the child. Although
respondent made no appearance on the record at another brief pretrial hearing on December 7,
2009, he had accompanied his counsel to the courthouse and checked in with the court clerk. At
the January 2010 termination hearing, the circuit court made the following observations:
. . . [Respondent] is the legal father of [the instant minor]. [Respondent]
did participate in perpetrating a fraud on the hospital by signing an Affidavit
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claiming that the mother’s name was something other than the name that we later
found it to be. He also knew that the mother had a drug problem and knew that
she was pregnant and continued to use drugs while she was pregnant with his
child. [Respondent] has an extensive criminal history that has been admitted on
this record. The criminal history involved at least . . . six felony convictions
involving violence, and he had been to prison multiple times. He committed a
felony while he was on prole [sic] from prison. It was noted in his criminal
history that he has a history [of] mental health issues. . . .
The Court would also note that [respondent], like the mother, has only
appeared once in court proceedings to date. He is not present to put forth any
case today with respect to this petition. . . . I would note also that [respondent]
does not have a suitable home for his child. [Respondent] . . . is involved on a
regular basis and substantial basis with the mother. A return of the child to the
father, in the Court’s opinion, because of his regular and substantial contact with
the mother, who has been adjudicated a number of time[s] as an unfit parent, is
essentially tantamount to returning the child to the mother if we return the child to
[respondent]. The Court is also very concerned with the fact that [respondent]
doesn’t seem to, in the Court’s opinion, have a clear, visible financial plan for the
care of the child.
The court deemed termination of respondent’s parental rights appropriate under MCL
712A.19b(3)(g) and (j).
The DHS did not offer respondent a case service plan, also referred to as a parent-agency
agreement, which consists of services designed to facilitate parent-child reunification. See MCL
712A.13a(8); 712A.18f(2), (3). Several of the concerns about respondent that the court listed at
the termination hearing, like his “extensive” criminal history, lack of suitable housing, potential
mental health issues, and relationship with SS, constitute proper potential grounds for
terminating his rights to the child. But the termination of respondent’s parental rights qualified
as premature because respondent father had no opportunity to participate in services, as
mandated by statute.
“‘Reasonable efforts to reunify the child and family must be made in all cases’ except
those involving aggravated circumstances not present in this case. MCL 712A.19a(2).” In re
Mason, 486 Mich 142, 152; 782 NW2d 747 (2010) (emphasis in original). “Before the court
enters an order of disposition in a proceeding under section 2(b) of this chapter, the agency shall
prepare a case service plan,” which “shall include” a “[s]chedule of services to be provided to the
parent, [and] child . . . to facilitate the child’s return to his or her home or to facilitate the child’s
permanent placement.” MCL 712A.18f(2), (3)(d). And generally, the court must hold review
hearings where it “shall review on the record” “[t]he extent to which the parent complied with
each provision of the case service plan, prior court orders, and an agreement between the parent
and the agency.” MCL 712A.19(6)(c). The only statutorily authorized exceptions to the general
DHS responsibility to offer a parent services encompass the following:
Reasonable efforts to reunify the child and family must be made in all
cases except if any of the following apply:
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(a)
There is a judicial determination that the parent has subjected the
child to aggravated circumstances as provided in section 18(1) and (2) of the child
protection law, 1975 PA 238, MCL 722.638.[1]
(b)
(i)
Murder of another child of the parent.
(ii)
1
The parent has been convicted of 1 or more of the following:
Voluntary manslaughter of another child of the parent.
The relevant subsections of MCL 722.638 envision as follows:
(1)
The department shall submit a petition for authorization by the
court under . . . MCL 712A.2, if 1 or more of the following apply:
(a)
The department determines that a parent . . . has abused the child
or a sibling of the child and the abuse included 1 or more of the following:
(i)
Abandonment of a young child.
(ii)
Criminal sexual conduct involving
penetration, or assault with intent to penetrate.
penetration,
(iii)
Battering, torture, or other severe physical abuse.
(iv)
Loss or serious impairment of an organ or limb.
(v)
Life threatening injury.
(vi)
attempted
Murder or attempted murder.
(b)
The department determines that there is risk of harm to the child
and either of the following is true:
(i)
The parent’s rights to another child were terminated as a result of
proceedings under . . . MCL 712A.2, or a similar law of another state.
(ii)
The parent’s rights to another child were voluntarily terminated
following the initiation of proceedings under . . . MCL 712A.2, or a similar law of
another state.
(2)
In a petition submitted as required by subsection (1), if a parent is a
suspected perpetrator or is suspected of placing the child at an unreasonable risk
of harm due to the parent’s failure to take reasonable steps to intervene to
eliminate that risk, the family independence agency shall include a request for
termination of parental rights at the initial dispositional hearing as authorized
under . . . MCL 712A.19b.
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(iii)
Aiding or abetting in the murder of another child of the parent or
voluntary manslaughter of another child of the parent, the attempted murder of the
child or another child of the parent, or the conspiracy or solicitation to commit the
murder of the child or another child of the parent.
(iv)
A felony assault that results in serious bodily injury to the child or
another child of the parent.
(c)
The parent has had rights to the child’s siblings involuntarily
terminated. [MCL 712A.19a(2).]
The instant record simply does not substantiate that any of the statutory exceptions in MCL
712A.19a(2) or 722.638 exist in this case with regard to respondent.
Absent any efforts by the DHS to adhere to its statutory mandate concerning parental
service provision, or any circuit court efforts to hold the DHS to its statutory responsibilities, the
present termination of respondent’s parental rights is unsustainable. As our Supreme Court
summarized in In re Mason, “Here, because the DHS and the court failed to adhere to court rules
and statutes, respondent was not afforded a meaningful and adequate opportunity to participate.
Therefore, termination of his parental rights was premature.” 486 Mich at 152. The Supreme
Court further elaborated, in analysis controlling our instant decision:
. . . [N]either [the DHS] nor the court ever facilitated respondent’s access
to services and agencies or discussed updating the plan. [Id. at 157.]
. . . [T]he court and the DHS failed to consider that respondent had never
been evaluated as a future placement or provided with services. Rather, the DHS
had focused on its attempts to reunify the children with [their mother] and, in
doing so, disregarded respondent’s statutory right to be provided services and, as
a result, extended the time it would take him to comply with the service plan upon
his release from prison—which was potentially imminent at the time of the
termination hearing. The state failed to involve or evaluate respondent, but then
terminated his rights, in part because of his failure to comply with the service
plan, while giving him no opportunity to comply in the future. This constituted
clear error. As we observed in In re Rood, a court may not terminate parental
rights on the basis of “circumstances and missing information directly attributable
to respondent’s lack of meaningful prior participation.” In re Rood, 483 Mich 73,
119; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.); see also id. at 127
(YOUNG, J., concurring in part) (stating that, as a result of the respondent’s
inability to participate, “there is a ‘hole’ in the evidence on which the trial court
based its termination decision”). [486 Mich at 159-160 (emphasis in original,
footnote omitted).]
None of the DHS arguments in favor of sustaining the termination in this case distinguish
it from In re Mason, 486 Mich 142. For example, the DHS’s suggestion that respondent’s
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criminal history weighs in favor of termination ignores the Mason observation that “a criminal
history alone does not justify termination.” Id. at 165.2 The respondent in Mason also knew
“that the children’s mother was drinking again” and “did nothing to try to protect the children
from the precarious situation in which this placed his children.” Id. at 171 (MARKMAN, J.,
dissenting). Therefore, the primary rationales of the DHS and the circuit court do not justify the
termination of respondent’s parental rights without any effort at providing him services.3
The DHS failure to substantiate any statutory ground excusing its neglect to offer
respondent services constrains us to reverse the order terminating respondent’s parental rights
and remand for the DHS to fulfill its statutory obligations concerning respondent.
Respondent additionally complains that he was deprived of his due process rights when
the termination hearing proceeded in his absence. Neither respondent nor his counsel, who
appeared at the termination hearing, objected in the circuit court on due process grounds. We
thus limit our consideration of this unpreserved constitutional contention to whether plain error
affected respondent’s substantial rights. In re Williams, 286 Mich App 253, 274; 779 NW2d 286
(2009). In an affidavit attached to respondent’s appellate brief, he concedes that he “was served
with notice to appear for [the termination hearing] . . . on January 28, 2010.” Respondent
explains that he missed the hearing because when he and SS arrived at the hearing location on
January 28, 2010, he dropped SS off and parked the car, and, as respondent “entered the
building, [SS] told [him] that . . . [she] was told by the clerk that the case would be heard in the
afternoon due to overcrowding.” However, when respondent “returned in the afternoon, [he]
was informed that the case had been called in the morning.” The facts averred respondent’s
affidavit do not demonstrate any plain error in the form of a cognizable due process violation by
the court or the DHS, especially in light of his concession that he received notice of the
termination hearing and had representation by counsel at the hearing. See Christensen v
Michigan State Youth Soccer Ass’n, 218 Mich App 37, 41-42; 553 NW2d 638 (1996)
(emphasizing that due process protections apply to actions taken by governmental actors and
public entities).
2
Notably, the respondent in In re Mason had prior convictions of criminal sexual conduct and
failing to report as a registered sex offender. Id. at 172 (MARKMAN, J., dissenting). Here, the
DHS did not specifically reference in the petition for termination what crimes comprised
respondent’s criminal record. At the outset of the termination hearing, counsel for the DHS
proffered to the court “a packet of criminal records” “includ[ing] . . . an assault charge in 2002,”
“a larceny charge that’s a [1998] case,” and “an unarmed robbery case.” No indication of record
exists that respondent’s crimes fell within the scope of MCL 712A.19a(2) or MCL 722.638.
3
The only service of record that the DHS offered respondent was weekly supervised parenting
times. Respondent’s parenting times apparently commenced at some point after respondent
signed the affidavit of parentage presented to the circuit court in November 2009. The DHS
worker who supervised the parenting times testified at the termination hearing that respondent
appropriately “held the baby, . . . [and] would talk to him.”
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Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Brian K. Zahra
/s/ Kirsten Frank Kelly
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