STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED In re R. E. MCLAUGHLIN, Minor. March 21, 2017 No Oakland Circuit Court Family Division LC No NA Before: CAVANAGH, P.J., and SAWYER and SERVITTO, JJ. PER CURIAM. Respondent appeals as of right an order terminating her parental rights to her minor child RM under MCL 712A.19b(3)(e) (failure to comply with a court-structured guardianship plan). 1 We affirm. I. COLLATERAL ATTACK Respondent waited until the conclusion of the termination proceedings to challenge the probate court s jurisdiction in the prior guardianship proceedings. Now on appeal of the termination order, respondent contends that she may challenge the probate court s subject matter jurisdiction in a collateral attack on the trial court s termination order because petitioner was improperly granted guardianship, and thus, the termination order was void on its face. We disagree. 1 Although on the record, the trial court found termination appropriate under the additional statutory grounds of MCL 712A.19b(3)(f) (failure to provide regular support to and communication with a minor for whom a guardian has been appointed), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood that child will be harmed if returned to parent), the trial court only included MCL 712A.19b(3)(e) as the statutory basis for termination in its written order. Because courts speak through their written orders and not their oral pronouncements, MCL 712A.19b(3)(e) serves as the basis for the trial court finding statutory grounds to terminate respondent s parental rights. See In re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009) ( [A] court speaks through its written orders and judgments, not through its oral pronouncements. ). -1-

2 Probate courts are courts of limited jurisdiction and derive their jurisdiction and power from statutory authority. Const 1963, art 6, 15; In re Martin, 237 Mich App 253, 255; 602 NW2d 630 (1999). A claim that the lower court lacks jurisdiction is a question of law, which we review de novo. Reed v Reed, 265 Mich App 131, 157; 693 NW2d 825 (2005). Further, [w]e review de novo the interpretation and application of statutes and court rules. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010) (citation omitted). However, an unpreserved issue is reviewed for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings. Id. at 9. [R]eversal is warranted only when the plain, forfeited error... seriously affected the fairness, integrity or public reputation of judicial proceedings.... Id. (quotation marks and citations omitted). [A] collateral attack occurs whenever a challenge is made to a judgment in any manner other than through a direct appeal. People v Howard, 212 Mich App 366, 369; 538 NW2d 44 (1995). In other words, a collateral attack is [a]n attack on a judgment entered in a different proceeding. Black s Law Dictionary (7th ed). Generally, a party may attack subject matter jurisdiction at any time, even if it is raised for the first time on appeal. Bank v Michigan Ed Assn NEA, Mich App, ; NW2d (2016) (Docket No ); slip op at 2. In other words, it is permissible for a party to collaterally attack a trial court s lack of subject matter jurisdiction. In re Hatcher, 443 Mich 426, 439; 505 NW2d 834 (1993). However, a trial court court s exercise of that jurisdiction may only be challenged on direct appeal. Id. Thus, if a direct appeal was available, but a party failed to pursue an appeal at that time, the party will be precluded from challenging the court s decision regarding jurisdiction years later in the form of a collateral attack. Id. at 444. In holding that a party may not attack a trial court s exercise of jurisdiction collaterally, the Hatcher Court explained that there is a distinction between the subject matter jurisdiction of a court and the trial court s exercise of that jurisdiction. Id. at 440 (emphasis added). A probate court s subject matter jurisdiction is established when the action is of a class that the court is authorized to adjudicate, and the claim stated in the complaint is not clearly frivolous. Hatcher, 443 Mich at 437. In contrast, an [e]rror in the determination of questions of law or fact upon which the court s jurisdiction in the particular case depends, the court having general jurisdiction of the cause and the person, is error in the exercise of jurisdiction. Id. at 439. Understanding this distinction is especially important in the context of a probate court because it is a court of limited jurisdiction, meaning it derives its jurisdiction and power from statutory authority, which requires a trial judge to interpret a statute to exercise that jurisdiction. See Martin, 237 Mich App at 255. Respondent confuses the distinction between the probate court s exercise of jurisdiction and the probate court s subject matter jurisdiction over the guardianship proceeding. Respondent frames her argument as a challenge to the subject matter jurisdiction in an attempt to make up for the lack of objection below, but the gravamen of her argument is that the probate court erred when it misapplied MCL (2)(b), which would constitute an error in the exercise of jurisdiction. Thus, any challenge now to the probate court s interpretation of MCL -2-

3 (2)(b) would be considered a challenge to the court s exercise of jurisdiction and may not be collaterally attacked years later. Hatcher, 443 Mich at 439, 444. Moreover, contrary to respondent s assertion, the probate court had subject matter jurisdiction over the prior guardianship proceeding because it is a class of proceedings that the court is authorized to adjudicate and respondent does not contest the validity of the contents contained in the guardianship petition. See MCL (c) (stating that a proceeding concerning guardianship falls within the limited jurisdiction of probate courts); see also Hatcher, 443 Mich at 437 (A probate court s subject matter jurisdiction is established when the action is of a class that the court is authorized to adjudicate, and the claim stated in the complaint is not clearly frivolous. ). Consequently, the probate court properly invoked its jurisdiction over the underlying guardianship proceeding. Once invoked, the probate court found the appointment of guardianship appropriate under MCL (2)(b), which states, in relevant part: (2) The court may appoint a guardian for an unmarried minor if any of the following circumstances exist: * * * (b) The parent or parents permit the minor to reside with another person and do not provide the other person with legal authority for the minor s care and maintenance, and the minor is not residing with his or her parent or parents when the petition is filed. Although respondent challenges the probate court s application of this provision, she failed to challenge the probate court s exercise of jurisdiction below when a direct appeal was available. See Hatcher, 443 Mich at 444. At the time, respondent had the option to appeal the probate court s decision under MCR 5.801(C) to the circuit court. See MCR 5.801(C) (providing a final order affecting the rights and interests of an adult or a minor in a guardianship proceeding is appealable as of right to the circuit court). In her brief on appeal, respondent points out that she was not represented by counsel during the guardianship proceeding, but unfortunately, the probate court was not required to appoint her counsel, and thus, the fact that respondent failed to pursue a direct appeal when she had the opportunity to do so does not affect this analysis. Moreover, to the extent respondent also challenges petitioner s standing in the underlying guardianship proceeding, we disagree. Petitioner was a person interested in the welfare of RM, and thus, was allowed to petition for the appointment of guardianship. See MCL (1) (stating that a person interested in the welfare of a minor may petition for the appointment of a guardian for the minor). Accordingly, respondent s challenge to the probate court s exercise of jurisdiction in the prior guardianship proceeding constitutes an impermissible collateral attack, and we decline to address it. See Hatcher, 443 Mich at

4 II. BEST INTEREST DETERMINATION Respondent contends that the trial court erred in finding that termination was in RM s best interests. We disagree. After the establishment of statutory grounds, a trial court must order the termination of a parent s rights if it finds by a preponderance of the evidence that the termination is in the child s best interest. MCL 712A.19b(5); In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013). We review a trial court s decision that termination is in the child s best interest for clear error. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). A finding is clearly erroneous, if after reviewing the record, we are left with a definite and firm conviction that a mistake has been made. Mason, 486 Mich at 152. If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child s best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made. MCL 712A.19b(5). A trial court must order the termination of a parent s rights if it finds by a preponderance of the evidence that the termination is in the child s best interests. Moss, 301 Mich App at 83. In making a best interest determination, the trial court should weigh all available evidence, White, 303 Mich App at 713, and the trial court s focus should be on the child rather than the parent, Moss, 301 Mich App at This determination may include the consideration of a wide variety of factors such as: the child s bond to the parent, the parent s parenting ability, the child s need for permanency, stability, and finality, and the advantages of a foster home over the parent s home. The trial court may also consider a parent s history of domestic violence, the parent s compliance with his or her case service plan, the parent s visitation history with the child, the children s well-being while in care, and the possibility of adoption. [In re Medina, Mich App, ; NW2d (2016) (Docket No ); slip op at 11 (citation omitted).] Respondent does not dispute that the trial court found proper statutory grounds to terminate respondent s parental rights; rather, respondent contends that termination was not in RM s best interests. The trial court found that termination of respondent s parental rights was in RM s best interests for several reasons. Specifically, respondent failed to comply with the courtstructured plan set forth in the prior guardianship proceedings; respondent lacked stability as she held several different jobs and moved several times in a two and a half year time period; respondent is untrustworthy; RM was bonded with petitioner; and RM had a stable home at petitioner s. A trial court s credibility determinations are given great deference. White, 303 Mich App at 711. The record evidence reveals that respondent conceded that she did not comply with the court-structured guardianship plan. Respondent s visitation with RM was infrequent throughout the underlying guardianship proceeding. In fact, at one point, respondent went 103 days without visiting RM. Respondent held several different short term jobs with periods of unemployment during the guardianship proceeding and had been evicted from at least three different homes. Additionally, throughout the guardianship proceeding, respondent was in arrearage in her child -4-

5 support payments. Petitioner testified that RM lacked a bond with respondent and that RM had come into her care malnourished and without the proper medical attention that he needed. More specifically, petitioner stated that respondent failed to keep RM up to date on his immunization schedule, failed to obtain necessary medication to treat thrush, and left RM s eczema untreated. Although two character witnesses testified that respondent possesses adequate skills to parent RM, RM s need for permanency, stability, and finality militate toward termination. Petitioner testified that RM was three years old at the time of the hearing in 2015 and was bonded with petitioner and her husband. RM calls petitioner nonny and calls her husband [p]apa while he refers to respondent by her first name. Petitioner has RM on a daily routine to keep his eczema in remission and she has taken the initiative to seek psychological services for RM because he was having difficulty understanding where he was supposed to live. Moreover, petitioner expressed her interest in continuing her guardianship over RM. Although generally it is preferable to keep siblings together, the trial court must look at the best interest of each individual child. Olive/Metts, 297 Mich App at 42. While RM seems to have a bond with his younger brother, his need for finality and stability outweigh the need to keep the two siblings together. Respondent s history of short term jobs and frequent moves is concerning especially when RM is of the age where he will begin preschool in the near future requiring the need for stability and permanency. While respondent testified that, since the guardianship proceedings, she has obtained a job, a car, housing, and become current in her child support payments, petitioner sought termination in the initial petition. Because termination of parental rights was petitioner s goal, reunification efforts were not required. See In re HRC, 286 Mich App 444, 463; 781 NW2d 105 (2009) (stating reunification efforts are not required when termination is the goal). Thus, the record evidence supports the trial court s determination that termination was in the best interests of RM. Affirmed. /s/ Mark J. Cavanagh /s/ David H. Sawyer /s/ Deborah A. Servitto -5-