(Cite
as: 182 Mich.App. 70, 451 N.W.2d 576)
Court
of Appeals of Michigan.
In
the Matter of Julie E. and Mellissa R. MILLER, Minors.
DEPARTMENT
OF SOCIAL SERVICES,
v.
Julie
FIRLET and Phillip Miller, Respondents-Appellants.
Docket
Nos. 114824, 115038.
Submitted Oct. 2, 1989.
Decided
Jan. 17, 1990.
Released
for Publication March 7, 1990.
Leave
to Appeal Denied March 30, 1990.
**577
*72
James V. Young, Pros. Atty. by John J. Broderick, Asst. Pros. Atty., Sandusky,
for Mich. Dept. of Social Services.
Joseph A. Greenleaf, Port Sanilac,
for Julie Firlet.
Daniel E. Atkins, Marlette, for
Phillip Miller.
Before HOOD, P.J., and CYNAR
and GRIFFIN, JJ.
PER CURIAM.
This proceeding concerns Julie
Miller, born March 27, 1985, and Mellissa Miller, born June 25, 1986.
They were removed from the home of their parents, respondents
Phillip Miller and Julie Firlet, on January 13, 1988, after a petition
was filed by petitioner Michigan Department of Social Services and an
order to take the children into temporary custody was issued by Sanilac
County Probate Court. Following a jury trial on February 24
and 25, 1988, the court was *73
found to have jurisdiction over both girls. At a dispositional
hearing on **578
April 24, 1988, the court ordered the parents to comply with a treatment
program. A supplemental petition was filed on October 27,
1988, recommending permanent custody. Following a dispositional
hearing on December 1, 1988, the court ordered the termination of the
parental rights of respondents. Respondents each appealed
as of right, and their appeals have been
consolidated. We affirm.
The
mother, respondent Firlet, argues first that the probate court lacked
jurisdiction in this case because, at the time the original petition was
filed with the court, she was not served with a summons or a copy of the
petition. However, we find that this argument is without merit.
In In
re Brown, 149 Mich.App.
529, 541, 386 N.W.2d 577 (1986), this Court interpreted M.C.L. § 712A.12;
M.S.A. § 27.3178(598.12) as requiring that a parent not
having custody of a child be personally served with a notice of the petition
and the time and place of the hearing. In this case, the two
minor children of Ms. Firlet were taken into temporary custody on January
13, 1988. On that same date, the probate court records show, contrary
to Ms. Firlet's allegations, that Ms. Firlet was personally served with
a copy of the petition and the order to take into temporary custody. The
order to take into temporary custody also directed Ms. Firlet to appear
for a preliminary hearing on January 14, 1988, at 9:30 a.m. at the Sanilac
County Probate Court. Since Ms. Firlet did not have custody
of the two children pending the preliminary hearing, or any later proceedings
in this matter, the statutory requirements were met, and the probate court's
jurisdiction did not fail for lack of proper notice.
Next,
respondent Firlet argues that the original *74
petition was insufficient as it pertained to her. She claims
that she reported the incidents
of abuse by Mr. Miller against the children and is now being condemned
for his acts. However, our Court has held that termination
of a parent's rights is proper where the parent permits the continuance
of an abusive environment. In
re Parshall, 159 Mich.App.
683, 690, 406 N.W.2d 913 (1987), lv. den. 428 Mich. 909 (1987); In
re Rinesmith, 144 Mich.App.
475, 483, 376 N.W.2d 139 (1985), lv. den. 424 Mich. 855 (1985). Here,
the petition alleged that Mr. Miller physically abused the children, that
he locked them in their room at length without meals, and that Julie had
severe vision problems and an improperly formed tongue that the parents
had not voluntarily dealt with. Though much of this information
was supplied by Ms. Firlet, the petition alleged not only that she allowed
these conditions to continue, but also that she actively contributed to
the problem by returning to the home with the children after being in
an assault crisis center and after having professional advice not to allow
Mr. Miller access to the children. Clearly, the petition was sufficient
as to Ms. Firlet.
Respondent
Firlet next argues that as a non-Indian, and a parent of non-Indian children,
she was unconstitutionally denied equal protection of the law under the
Fifth Amendment of the United States Constitution, because under the Michigan
Court Rules, specifically MCR 5.980, a higher standard of proof and a
greater evidentiary standard must be met in order to terminate parental
rights to Indian children than that applicable to non-Indian children.
MCR 5.980 concerns child custody proceedings involving American Indian
Children and is consistent with the Indian Child Welfare Act (ICWA), 25
U.S.C. § 1901 et
seq. See
Staff Comments to MCR *75
5.980. Under MCR 5.980(D), the standards for termination of
parental rights are:
The
parental rights of a parent of an Indian child shall not be terminated
unless there is evidence beyond a reasonable doubt, including testimony
of qualified expert witnesses, that parental rights should be terminated
because continued custody of the child by the parent or Indian custodian
will likely result in serious emotional or physical damage to the child.
Though Ms. Firlet is correct that these standards are higher than
those governing termination of parental rights to non-Indian children
under MCR 5.974 (e.g., standard of proof for non-Indians is clear and
convincing), **579
we do not agree that her equal protection rights have been violated.
While this issue has not been
previously addressed in Michigan, we agree with the opinion of the Oregon
Court of Appeals in In
the Matter of Application of Angus,
60 Or.App. 546, 554-556, 655 P.2d 208 (1982), review den. 294 Or. 569,
660 P.2d 683 (1983), cert. den. 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d
109 (1983), which held that the ICWA did not deny equal protection to
non-Indians.
In so holding, the court in Angus,
supra, pp. 554-555,
655 P.2d 208 noted:
The
United States Supreme Court has consistently rejected claims that laws
that treat Indians as a distinct class violate equal protection. Washington
v. Confederated Bands and Tribes of the Yakima Indian Nation,
439 US 463; 99 SCt 740; 58 LEd2d 740 (1979); Delaware
Tribal Business Committee v. Weeks,
430 US 73; 97 SCt 911; 51 LEd2d 173 (1977); United
States v. Antelope,
430 US 641; 97 SCt 1395, 51 LEd2d 701 (1977); Fisher
v. District Court,
424 US 382; 96 SCt 943; 47 LEd2d 106 (1976); Morton
v. Mancari, 417 US
*76
535; 94 SCt 2474; 41 LEd2d 290 (1974). Traditional
equal protection analysis cannot be applied.
In Morton
v. Mancari, supra,
the court stated:
"Literally
every piece of legislation dealing with Indian tribes and reservations,
and certainly all legislation dealing with the BIA, single out for special
treatment a constituency of tribal Indians living on or near reservations.
If these laws, derived from historical relationships and explicitly
designed to help only Indians, were deemed invidious racial discrimination,
an entire Title of the United States Code (25 USC) would be effectively
erased and the solemn commitment of the Government toward the Indians
would be jeopardized." 417 US at 552; 94 SCt at 2483-2484.
...
The goal of the ICWA is to protect Indian families against disruption,
pursuant to a Congressional finding that an alarmingly high percentage
of Indian families are broken up by unwarranted removal of Indian children
from them and that "there is no resource that is more vital to the
continued existence and integrity of Indian tribes than their children...."
25 USC 1901(3), (4).
Applying the rational relationship
test for constitutionality of federal laws regarding Indians set forth
in Morton v. Mancari,
417 U.S. 535, 94 S.Ct. 2474, the Angus
court concluded that the protection of the integrity of American Indian
families is a permissible goal rationally tied to the fulfillment of Congress'
unique guardianship obligation toward Indians. Angus,
supra, 60 Or.App. p.
555-556, 655 P.2d 208. We agree and, thus, find no denial
of Ms. Firlet's equal protection rights.
Respondent Firlet also argues
that she was denied effective assistance of counsel because her trial
counsel did not object to a delay of more than thirty-five days from the
trial to the dispositional hearing, did not object to the violation of
her equal *77
protection rights, did not object to the failure to make proper service
of the pleadings on her, and did not object to the legal insufficiency
of the petition. However, at the evidentiary hearing on this
matter, Ms. Firlet's trial counsel explained that the delay of more than
thirty-five days from trial to disposition was at his own request to avoid
a scheduling conflict with a jury trial and to allow the disposition to
occur at a time when he could more fully concentrate on it. Further,
Ms. Firlet has not shown any prejudice to her from this delay. Her
attorney also explained that
he did not object to a denial of equal protection, to the lack of service
of the summons, petition and notice of hearing, or to the legal insufficiency
of the petition because his knowledge and experience showed that these
were not solid bases for objection and such objections would not be sound
trial strategy. Given our resolution of these issues, we agree
with the trial court that Ms. Firlet had very competent counsel whether
measured under the Michigan standard for effective assistance of counsel,
People v. Garcia,
398 Mich. 250, 247 N.W.2d 547 (1976), reh. den. 399 Mich. 1041 (1977),
or **580
the federal standard, Strickland
v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Next,
both respondents argue that it was error for the guardian ad litem to
continuously interject his own personal opinion in his closing argument
to the jury. We disagree.
In closing argument, counsel
is permitted to draw reasonable inferences from the testimony. Hayes
v. Coleman, 338 Mich.
371, 61 N.W.2d 634 (1953). However, this Court had held that a prosecutor's
expression of personal belief about a type of case is improper. People
v. Swartz, 171 Mich.App.
364, 370- 371, 429 N.W.2d 905 (1988).
*78
In discussing respondent Firlet's role, the guardian ad litem stated:
I
listened to a lot of what was said by Ms. Firlet to other people and what
she
had to say and I guess I do believe that she tried, she tried to do the
best job that she could do. But something just was lacking,
okay, I don't know what it was but I don't think she could protect the
children from what was taking place, by what I've heard, by Mr. Miller's
conduct.... He did the discipline. And when I asked
him why he did that, he says "because she wouldn't do it." Well,
I don't believe that.
At this point, respondents' attorneys
both objected. The court allowed the argument, stating that
the interpretation of facts was proper in the closing argument and that
the jury would be instructed that their interpretation might be different.
The guardian ad litem continued
with many more statements starting with "I believe" or "I
have to conclude." Following the guardian ad litem's
closing argument, respondents' attorneys, out of the jury's hearing, moved
for a mistrial. The guardian ad litem stated that he was stating
his personal opinion to the jury. The court denied the motion,
stating that there was personal opinion in only a few spots and that the
jury instruction that the arguments are not evidence would cure any problem.
We find that, although the guardian
ad litem expressed his conclusions with phrases such as "I believe,"
he did not depart from stating what the evidence showed and what inferences
could be drawn from the evidence. He did not refer to matters
outside the evidence or imply that he knew more about the case than what
had been *79
presented. His statements of belief did not encompass personal
beliefs about this "type" of case, nor did he unduly invoke
the authority of his position as guardian ad litem. Further,
the trial court instructed the jury that they were the sole judges of
the facts and that the statements of attorneys in argument were not evidence.
Under these circumstances, we find no error requiring reversal.
Respondent Miller also raises
a number of additional allegations of error all of which we find to be
without merit. Mr. Miller argues that the trial court improperly
removed two prospective jurors for cause, however the record reveals that
both prospective jurors made statements indicating possible bias and their
removal for cause was within the court's discretion.
Mr. Miller also argues that the
court's reading of the entire petition to the jury was improper and prejudicial
since he claims the petition went beyond essential facts of the case and
instead contained alleged admissions of the parents and conclusions. However,
the reading of the petition to the jury was necessary to inform them of
the basis of their duties as triers of fact. The trial court
cautioned the jury that the petition was not evidence in the case, and
its reading took place long before any testimony was given. Further,
evidence was eventually presented regarding all the allegations in the
petition. Mr. Miller was not prejudiced by the reading of
the petition.
Next, respondent Miller contends
without merit that the prosecutor improperly
referred to Mr. Miller's violent reputation in closing argument. However,
the record clearly indicates that on direct examination Mr. Miller testified
as to his own reputation in the community for violence.
**581
Nor do we find that the prosecutor's reference in closing argument to
"steps" the probate court *80
might ultimately take, should the jury determine that jurisdiction over
the children was warranted, impermissibly suggested to the jury that the
consequences would be minor, as Mr. Miller argues. The jury
could just as well have imagined "steps" as being termination
of parental rights. Mr. Miller was not prejudiced by this
statement either.
Respondent
Miller also argues unpersuasively that the court improperly allowed evidence
of violence between the parents. The decision whether to admit
evidence is within the sound discretion of the trial court. Kochoian
v. Allstate Ins. Co.,
168 Mich.App. 1, 12, 423 N.W.2d 913 (1988). To prove that
the court should have jurisdiction over the children, petitioner had the
burden of showing that the provisions of M.C.L. § 712A.2(b);
M.S.A. § 27.3178(598.2)(b) applied. Evidence of violence
between parents in front of the children is certainly relevant to showing,
as provided under subsection (2) of the statute, that the home is an unfit
place for the children by reason of criminality or depravity. Moreover,
any prejudicial effect of the evidence was outweighed by its probative
value, particularly in light of other evidence introduced to show Mr.
Miller's physical abuse of Julie, and his own testimony regarding his
reputation for violence.
Respondent
Miller also alleges that the trial court erroneously permitted hearsay
testimony to be introduced regarding out-of-court statements by Ms. Firlet
concerning incidents of violence by Mr. Miller. However, Mr.
Miller did not specifically object to this hearsay testimony at trial
and has therefore waived appellate review, absent manifest justice. MRE
103(a)(1); People
v. Worrell, 111 Mich.App.
27, 38-39, 314 N.W.2d 516 (1981), rev'd on other grounds 417 Mich. 617,
340 N.W.2d 612 (1983). We find no manifest injustice here
where Ms. Firlet testified regarding *81
all of the statements in question and other evidence admitted tended to
corroborate those statements as well, including admissions made by Mr.
Miller to a witness regarding his own abusive behavior toward the children.
Finally, both respondents contend
that the trial court's decision to terminate their parental rights was
clearly erroneous since the findings of fact on which the decision was
based were not supported by clear and convincing evidence. We disagree.
On
appeal from termination of parental rights proceedings, this Court reviews
the probate court's findings of fact under the clearly erroneous standard.
To be clearly erroneous, although there is evidence to support
it, a
finding must leave this Court with a definite and firm conviction that
a mistake has been made. MCR 5.974(I); In
re Cornet, 422 Mich.
274, 277, 373 N.W.2d 536 (1985); In
re Miller, 433 Mich.
331, 445 N.W.2d 161 (1989). When applying the clearly erroneous standard,
MCR 2.613(C) requires that "regard is to be given to the special
opportunity of the trial court to judge the credibility of the witnesses
who appeared before it." In
re Miller, 433 Mich.
at 337, 445 N.W.2d 161.
At
the adjudicative trial, the court heard evidence of emotional, physical,
and medical abuse and neglect. Evidence was presented that
Mr. Miller had thrown Julie out of the door, had grabbed her out of her
high chair by the head and then dropped her, and had kicked her in the
head. He had admitted to a witness that he threw the children.
Evidence was presented that the
girls were locked into their sparsely furnished bedroom for long periods
of time and were deprived of books, paper, and dolls. On each
of three visits by witnesses at midday, the girls were found in their
bedroom. Their diapers were in such need of *82
changing that fecal matter dripped down their legs.
Ms. Firlet told the visitors
of the physical abuse by Mr. Miller and indicated by several statements
that she abided by his decisions on handling the girls (makeshift diapers,
no children's games like "patty cake," no medical attention
for Julie's tongue). After Ms. Firlet went with the girls
to an assault crisis
center, the girls started to **582
talk and play. But after two months, Ms. Firlet returned with
the girls to Mr. Miller.
From psychological evaluations
of respondents at the dispositional and review hearings, the court heard
that Mr. Miller would not accept responsibility for his violent actions
and that Ms. Firlet put her own emotional needs ahead of her children's
and would not stand up to Mr. Miller. No evidence indicated
that these personality characteristics had changed. The court
could properly conclude from this that, if the children were placed again
in the home, the abuse and neglect would continue.
Respondent Firlet argues that
no culpable neglect on her part was shown. The Supreme Court
has recently stated that the Legislature in 1988 P.A. 224, effective April
1, 1989, eliminated the ambiguity about the term "neglect" in
§ 19a(e) of the juvenile code by placing new language in the
juvenile code that neglect is "without regard to intent." M.C.L.
§ 712A.19b(3)(d); M.S.A. § 27.3178(598.19b)(3)(d).
In re Jacobs,
433 Mich. 24, 37, 444 N.W.2d 789 (1989). Furthermore, Ms.
Firlet's neglect was culpable. She allowed the conditions
to continue, and even returned to these conditions against the advice
of counselors at the assault crisis center. Allowing an abusive
environment to continue establishes neglect. Parshall,
supra, 159 Mich.App.
at 690, 406 N.W.2d 913.
*83
The court heard evidence that respondents had largely not complied with
the
court's order to attend psychological counseling and parenting classes,
even though visitation of the children was dependent upon attending the
counseling sessions. A job training program had been completed
only when respondents were threatened with a cutoff of general assistance.
Mr. Miller stated that he did not comply because he believed
the adjudication was unfair and he did not trust the counselors involved
with the court-ordered program. Ms. Firlet stated that attendance was
difficult because of a lack of transportation and ready access to a telephone.
However, the caseworker had been willing to arrange transportation
for her. Transportation had been arranged for one appointment,
but she cancelled and did not reschedule.
In light of the psychological
evaluations and the evidence of poor parenting skills, the court-ordered
sessions were needed. Failure to comply with such a court
order may be one, although not the sole, consideration in terminating
parental rights. In
re Bedwell, 160 Mich.App.
168, 176, 408 N.W.2d 65 (1987). The trial court could properly
consider such noncompliance as a further indication that the neglect that
had been shown at trial would continue since neither respondent showed
a willingness to change.
The court concluded, and we agree,
that petitioner had proven by clear and convincing evidence that termination
of respondents' parental rights was warranted in that they "are unwilling
and unable to provide a fit home ... by reason of
neglect," thereby satisfying the requirement of M.C.L. § 712A.19a(e);
M.S.A. § 27.3178(598.19a)(e).
Further,
the trial court properly determined within its discretion that it was
in the best interest *84
of the children to be placed outside the home. The court did
not err in considering the best interests of the children, because once
a court has determined the existence of a statutory ground for termination
of parental rights by clear and convincing evidence the decision to actually
terminate is within the court's discretion and the best interests of the
children are to be considered. In
re Schmeltzer, 175
Mich.App. 666, 675, 438 N.W.2d 866 (1989); In
re Schejbal, 131 Mich.App.
833, 836, 346 N.W.2d 597 (1984).
Thus, there is ample evidence
beyond the parents' noncompliance with the court-ordered program showing
that the respondents had neglected the children and were unwilling to
change. The trial court did not clearly err in finding that
clear and convincing evidence justified termination of respondents' parental
rights, nor did the trial court abuse its discretion in actually terminating
those rights.
Given the record in this case,
and our resolution of the last issue and the issues preceding it, we find
no merit to respondent **583
Miller's additional allegations that the trial court erred in denying
his motions for directed verdict, judgment notwithstanding the verdict,
and new trial.
Affirmed.
GRIFFIN, J., concurred in the
result only.
182 Mich.App. 70, 451 N.W.2d
576
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