IN RE B MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of M.J.B. and V.E.B., Minors.
REBECCA LYNN SCOTT and TODD OLIVER
SCOTT,
UNPUBLISHED
October 22, 2009
Petitioners-Appellees,
v
No. 291392
Oakland Circuit Court
Family Division
LC Nos. 2008-752007-AY;
2008-752008-AY
RICKEY LEE BALDWIN,
Respondent-Appellant.
Before: Davis, P.J., and Whitbeck and Shapiro, JJ.
PER CURIUM.
Respondent appeals as of right from a circuit court order terminating his parental rights to
the minor children pursuant to § 51(6) of the Adoption Code, MCL 710.51(6). We affirm.
Respondent, who was incarcerated in the Ingham County Jail at the time of the
termination hearing, first argues that his right to due process was violated when the trial court
refused to adjourn the hearing in Oakland County to allow him to be physically present at the
hearing. Instead, the court permitted respondent to participate in the hearing by telephone.
In In re Vasquez, 199 Mich App 44, 48-49; 501 NW2d 231 (1993), this Court explained
that an incarcerated parent does not have an absolute right to be physically present at a
termination hearing. Instead, an incarcerated parent’s due process right to be present at the
hearing is determined by applying the three-part balancing test from Mathews v Eldridge, 424
US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976). In re Vasquez, supra at 50. Under this test, a
court must consider (1) the private interest that will be affected; (2) the incremental risk of an
erroneous deprivation of such interest in the absence of the procedure demanded; and (3) the
government’s interest in avoiding the burden the procedure would carry. Id. at 47.
We agree that the private interest at stake in this case, respondent’s parental rights to his
children, is a compelling one. However, the risk of an erroneous deprivation of that interest was
not increased by the absence of respondent’s physical presence at the hearing. Respondent was
represented at the hearing by counsel and there is no indication that he was not able to confer
with his attorney. Further, the trial court permitted respondent to participate in the hearing by
telephone, and he was permitted to testify. The availability of telecommunications “militates
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against securing the physical presence of an incarcerated parent at a [termination] hearing as a
matter of due process.” Id. at 49.
On appeal, respondent asserts that if he had been physically present, he could have
assisted in his defense by offering records in support of his testimony. However, respondent
admitted that he did not have the records in question and had not attempted to obtain them
himself, or ask his attorney to obtain them. Thus, he could not have presented the records even if
he had been physically present at the hearing. Furthermore, after hearing respondent’s offer of
proof regarding the content of the alleged telephone records, the trial court stated that they would
not have affected the outcome of the case.1 For these reasons, respondent’s absence did not
increase the risk of an erroneous deprivation of his parental rights.
In addition, while it may not have been unduly burdensome to transport respondent to
Oakland County for the hearing, respondent did not make a timely request that he be allowed to
appear in person at the hearing. Further, the court had previously adjourned the hearing to
enable respondent to participate. Considering that the hearing had already been adjourned once
to accommodate respondent, that respondent did not timely request that arrangements be made to
secure his physical presence at the adjourned hearing, and the availability of other means for
respondent to participate in the adjourned hearing, another adjournment would have been unduly
burdensome. Accordingly, applying the three-part balancing test to this case, the failure to
secure respondent’s physical presence for the hearing did not violate respondent’s right to due
process.
Respondent next argues that the evidence did not support termination of his parental
rights under § 51(6). The petitioner in an adoption proceeding is required to prove by clear and
convincing evidence that termination of parental rights is warranted. In re Hill, 221 Mich App
683, 691; 562 NW2d 254 (1997). This Court reviews the trial court’s findings of fact for clear
error. Id. at 692. “A finding is clearly erroneous if, although there is evidence to support it, the
reviewing court is left with a definite and firm conviction that a mistake has been made.” Id.
Respondent argues that the trial court clearly erred in finding that he had the ability to
visit, contact, or communicate with his children, and regularly and substantially failed to do so
during the two-year period preceding the filing of the petition, as required by § 51(6)(b).2
Respondent contends that he did not have the ability to visit, contact, or communicate with his
children during the relevant two-year period because they lived in Illinois for part of this period,
and because he was incarcerated during portions of this period. We disagree. Section 51(6)(b)
1
Similarly, although respondent also wanted to produce records showing that much of his
income was withheld to pay child support obligations, there was no dispute that he was
substantially in arrears in his various support obligations. Thus, the alleged child support records
also would not have affected the outcome of the case.
2
Respondent does not dispute the trial court’s findings with regard to § 51(6)(a), i.e., that he
failed to substantially comply with a support order for a period of two years or more before the
filing of the petition.
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requires that a respondent have the ability to “visit, contact, or communicate with the child.” In
In re Hill, supra at 694, this Court explained:
Because the statute uses the word “or,” petitioner was not required to
prove that respondent had the ability to perform all three acts. Rather, petitioner
merely had to prove that respondent had the ability to perform any one of the acts
and substantially failed or neglected to do so for two or more years preceding the
filing of the petition.
Even if respondent was unable to travel to Illinois to visit his children, he was not
prevented from maintaining regular and substantial contact with them by telephone, letter, or
email. Similarly, there is no incarcerated parent exception to § 51(6)(b). In re Caldwell, 228
Mich App 116, 121; 576 NW2d 724 (1998). Thus, an incarcerated parent who is unable to visit
his child may still comply with the contact requirements of the statute. Id. Respondent admitted
that he was able to write letters while in jail. He also had a telephone and email access when he
was not incarcerated. Therefore, respondent cannot discount those periods when the children
were living out of state or he was incarcerated, even if he lacked the means to visit them
personally.
According to the children’s mother, she and respondent had established a schedule
whereby respondent would call the children twice a week. By October 2006, respondent was no
longer adhering to that schedule and called the children only sporadically. He did not call them
around their birthdays, and last contacted them in April 2008. Due to the infrequent contact, the
children no longer anticipated calls from respondent. Although respondent claimed that he
continued to call the children twice weekly until May 2008, the trial court found that his
testimony was not credible. We defer to the trial court’s assessment of respondent’s credibility.
In re Newman, 189 Mich App 61, 65; 472 NW2d 38 (1991). Contrary to what respondent
argues, the trial court did not rule that respondent’s offer of proof regarding his telephone records
would establish the frequency of his contact with his children. The court merely noted that the
records would show, at most, that calls were placed by respondent, not that there was regular
contact or communication with the children.
In sum, there was evidence that respondent had the ability to communicate or contact
with his children, even while they lived in Illinois or he was incarcerated, but failed to regularly
and substantially do so during the relevant two-year period. Therefore, the trial court did not
clearly err in finding that petitioners met their burden under § 51(6)(b). In re Hill, supra at 691692.
Affirmed.
/s/ Alton T. Davis
/s/ William C. Whitbeck
/s/ Douglas B. Shapiro
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