IN RE BACCA MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of MEGAN BACCA and MICHAEL
BACCA, Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
March 22, 2002
Petitioner-Appellee,
v
No. 234815
Bay Circuit Court
Family Division
LC No. 00-007128-NA
ANTHONY WILLIAMS,
Respondent-Appellant,
and
JAMI BACCA,
Respondent.
Before: Sawyer, P.J., and O’Connell and Zahra, JJ.
MEMORANDUM.
Respondent-appellant appeals as of right from the trial court order terminating his
parental rights to Megan Bacca under MCL 712A.19b(3)(g). We affirm.
I
Respondent-appellant contends that his right to due process was violated when the trial
court failed to secure his release from an Indiana prison so that he could attend the termination
hearing in person. We disagree. We note that the trial court attempted to grant respondentappellant’s request for a release, only to learn that Indiana authorities would not allow his release
for a non-criminal matter. The trial court did not err in proceeding with the hearing in
respondent-appellant’s absence.
This Court has held that an incarcerated respondent has no absolute right to attend a
termination hearing. In re Vasquez, 199 Mich App 44; 501 NW2d 231 (1993). Instead, the trial
court should apply the three-part balancing test of Mathews v Eldridge, 424 US 319, 335; 96 S
Ct 893; 47 L Ed 2d 18 (1976). Under this test, the trial court must balance the value of the
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private interest at stake, the risk that the respondent will be erroneously deprived of that interest
if the court does not implement the requested procedure, and the burden on the government if it
does implement the requested procedure. Vasquez, supra, pp 47-48; In re Render, 145 Mich
App 344, 348-349; 377 NW2d 421 (1985).
Here, we are satisfied that these factors weighed in favor of holding the hearing despite
respondent-appellant’s inability to attend. Respondent-appellant has not shown that he was
prejudiced by his inability to attend the hearing in person. His attorney presented favorable
evidence regarding the possibility of an early release from prison; there is no apparent reason
why he could not have presented any other favorable evidence on respondent-appellant’s behalf.
Respondent-appellant made no effort to avail himself of long distance communications such as a
videotaped deposition. Respondent-appellant’s argument that he might have better helped his
defense if he had been in the courtroom is sheer speculation. Regarding the third part of the test,
the trial court stated that Indiana authorities would not allow respondent-appellant’s release, and
respondent-appellant has not refuted this finding.
II
Respondent-appellant also argues that the trial court erred in finding sufficient evidence
of statutory grounds to terminate his parental rights. This issue is based largely on respondentappellant’s claims of evidentiary errors. However, this issue is not properly presented because
he did not raise it in his statement of questions presented. In re Coe Trusts, 233 Mich App 525,
536-537; 593 NW2d 190 (1999). In any event, we find no evidentiary error. Respondentappellant’s criminal record was not irrelevant; on the contrary, it was highly relevant to the
question of whether he has been and will be able to provide his child with proper care and
custody. MRE 401. Respondent-appellant contends that the evidence should have been
excluded under MRE 404(b). However, MRE 404(b) is intended to prevent juries in criminal
cases from making judgments about a defendant’s propensity for criminal conduct based on prior
bad acts. People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993). It cannot logically
apply to termination cases under § 19b(3)(g), where the trial court must make findings of fact not
only as to a respondent’s past behavior, but also as to his probable future behavior. Finally,
respondent-appellant contends that the evidence was inadmissible hearsay under MRE 801. This
argument is without merit because MRE 803(22) provides an exception for hearsay “[e]vidence
of a final judgment, entered after a trial or upon a plea of guilty . . . adjudging a person guilty of
a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to
sustain the judgment . . . .”
III
Finally, the trial court did not clearly err in finding that § 19b(3)(g) was established by
clear and convincing evidence. MCR 5.974(I), In re Miller, 433 Mich 331, 337; 445 NW2d 161
(1989).
Petitioner-appellee’s evidence established that respondent-appellant had been
unavailable as a parent to his child since 1997, and that he failed to provide any support or care
for her since being imprisoned. Respondent-appellant had never provided custody or meaningful
support for the child, and he was not prepared to assume custody within a reasonable time.
Because the evidence did not show that termination of respondent-appellant’s parental rights was
clearly not in the child’s best interests, the trial court did not err in terminating his parental
rights. MCL 712A.19b(5); In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000).
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Affirmed.
/s/ David H. Sawyer
/s/ Peter D. O’Connell
/s/ Brian K. Zahra
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