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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re K. J. RHINES, Minor. August 4, 2015

No. 323115

Shiawassee Circuit Court Family Division

LC No. 12-013282-NA

Before: B ORRELLO , P.J., and R ONAYNE K RAUSE and R IORDAN , JJ.

P ER C URIAM

.

Respondent appeals as of right a July 14, 2014, trial court or der terminating his parental rights to the minor child, KJ, pursuant to MCL 712A.19b(3)(h) ( parent imprisoned for more than two years with accompanying failure to provide proper care and custody). For the reasons set forth in this opini on, we affirm.

I. FACTUAL BACKGROUND

On October 5, 2012, petitioner, Department of Health and HumanServices (DHS), filed the initial petition in this cas e involving KJ, the minor daugh ter of respondent (father) and Jamie Dixon (mother). The petition alleged that Dixon had a lengthy Child Protective Services (CPS) history consisting of 12 assigne d complaints involving sexual a buse, physical abuse, physical neglect, medical neglect, and improper supervision. The petiti on also alleged that Dixon was unable to maintain her finances, that utilities at the home whe re KJ resided with her mother had been turned off, that the home conditions were deplorable, and that Dixon did not attend to KJ’s special needs as a child with cerebral palsy. Regarding respon dent, the petition alleged that he

was incarcerated as a result of a manslaughter conviction and t hat his earliest release date from prison was July 11, 2025. Followi ng a preliminary hearing on O ctober 5, 2012, the court entered an order that same day taki ng KJ into protective custody.

At an October 5, 2012, preliminary hearing, KJ’s guardian ad l item inquired about an attorney for respondent, who was incarcerated and did not appea r at the hearing. The circuit court indicated that it would appoint an attorney for responden t because he was “less available” due to his incarceration. The court then adjourned the hearing to allow for appointment of

counsel.

On October 11, 2012, the court signed an order appointing Jana L. Kurrle as attorney for respondent. However, the order referred to the appointment of Kurrle for respondent with the-2- notation “No C/A Atty Denied” written in ink across the body of the order. The circuit court register of actions includes an October 11, 2012 entry that sta tes, “Father Denie d C/A Attorney.”

At an October 18, 2012, haring, a referee stated to respondent on the record that, “I know at some point at the last hearing, you requested Court appointe d counsel or an attorney was going to be appointed for you. That request was denied . . . in that you are a non-custodial parent.” 1
The referee asked respondent if he understood that the court di d not appoint an a ttorney for him, and respondent replied, “Yeah, I guess so.” The referee assure d respondent that he would be permitted to participate in future proceedings. On the same da y, the referee signed an “Order Requesting Prisoner be Allowed to Participate in Court Proceedi ngs.” Similar orders were also signed with regard to each subsequent dispositional review and/ or permanency planning hearing. The October 23, 2012 “Order after Preliminary Hearing” stated that “all parties waived the Preliminary Hearing requesting the matter be scheduled for Form al Trial with PreTrial scheduled prior.”

On December 11, 2012, the circuit court took jurisdiction over KJ after Dixon pleaded no-contest to the allegations i n the petition. The court ultim ately terminated Dixon’s parental rights on March 17, 2014, following a termination hearing.

Thereafter, the court held a dispositional review hearing on F ebruary 11, 2013, and dispositional review/permanenc y planning hearings on April 29, 2013, July 22, 2013, September 30, 2013, and December 9, 2013. Respondent participated in all of these hearings via telephone from prison.

On April 3, 2014, at another dispositional review/permanency p lanning hearing, respondent requested the appointme nt of counsel. Following thi s hearing, petitioner filed a petition to terminate respondent’s parental rights to KJ under MCL 712A.19b(3)(c)( i ), ( ii ) and (h), and on April 7, 2014, the circuit court appointed attorney Charles E. Quick to represent respondent.

A termination hearing regardin g respondent was held on July 8, 2014. Heather Murphy, a Catholic Charities caseworker, testified that KJ was diagnose d with cerebral palsy and required special education and neurological services. She explained tha t KJ was non-verbal and was not toilet trained. Murphy testifie d that respondent was incarcera ted for the voluntary manslaughter of his estranged wife’s (Dixon’s) boyfriend and that his earlie st release date was July 11, 2025, when KJ would be 21 years old.

Alan Witte of the Shiawassee County Office of Probation and Pa role testified that respondent broke into the home of the boyfriend and stabbed him 14 times. A broken knife blade was lodged into the boyfri end’s spine. Murphy explained that KJ was 5 years old when

1 The reason for the circuit court’s decision to first appoint a n attorney for respondent, and to then change his mind and deny a court-appointed attorney for re spondent, is unclear from the record, with the exception of the referee’s comment.-3- respondent was arrested, and was 10 years old at the time of th e hearing. Respondent testified

that he was arrested on Nove mber 2, 2008, and had last seen KJ on Halloween 2008.

Murphy testified that placement with relatives was investigate d but was not possible. Murphy stated that respondent should not have custody of KJ eve n if released from prison, and opined that it was in the best interests of KJ to terminate res pondent’s parental rights. Murphy informed the court that KJ bonded with her foster family, who w ere committed to her needs and wanted to adopt her. According to Murphy, the family fosters a relationship with KJ’s older sister. Murphy confirmed that no services were available to re spondent in prison because services are limited to those pris oners whose release date is 1 8 months or less.

Respondent introduced family photographs from 2005 to 2008 of himself with KJ to show that there was a loving re lationship and that the conditio n of the family home was acceptable before his incarceration. Respondent testified that he had no objections to KJ’s foster-care placement. He agreed that permanency planning was in KJ’s best interests.

Following the close of proofs, the circuit court terminated re spondent’s parental rights pursuant to MCL 712A.19b(3)(h) (p arent imprisoned for more than two years with accompanying failure to provide proper care and custody). The court found that KJ would be 21 before respondent was released from prison and that during the interim respondent would not be able to provide care or support for KJ, a special-needs child. The court entered a written order reflecting its ruling on Jul y 8, 2014. This appeal ensued.

II. ANALYSIS

Respondent’s sole argument on appeal is that the circuit court violated his constitutional rights when it denied him the right to counsel until the termin ation hearing. Whether an individual was deprived of his constitutional rights involves a question of law that we review de

novo. People v Brown , 294 Mich App 377, 387; 811 NW2d 531 (2011).

The constitutional guarantees of due process and equal protect ion extend the right to counsel to respondents in child protective proceedings. In re Powers Minors , 244 Mich App 111, 121; 624 NW2d 472 (2000). MCL 712A.17c(4), provides that, in a child protective proceeding, the circuit court “shall advise the respondent at t he respondent’s first court appearance” of the right to an attorney at each stage of the pr oceeding and the right to a courtappointed attorney in the event that the respondent cannot affo rd to retain counsel. In addition, MCL 712A.17c(5) provides that “[ i]f it appears to the court . . . that the respondent wants an attorney and is financially unable to retain an attorney, the c ourt shall appoint an attorney to represent the respondent.” MCR 3.915(B)(1) contains similar pr ovisions regarding appointment of counsel in child prote ctive proceedings.

In this case, respondent’s initi ally appeared in court via tel ephone at the October 18, 2012, hearing. At that hearing, the circuit court failed to in form respondent he ha d the right to an attorney at every stage of the proceeding and had the right to an appointed attorney in the event that he could not afford to retain an attorney. The circuit co urt appears to have denied the guardian ad litem’s request to appoint counsel for respondent b ecause respondent was not a custodial parent. However, irre spective of whether respondent had custody over KJ, he had a-4- right to counsel. In re Powers , 244 Mich App at 121. The circuit court therefore clearly err ed in failing to inform respondent of h is right to counsel at respond ent’s initial court appearance and in declining to appoint counsel f or respondent on grounds that res pondent was a non-custodial

parent.

Although the circuit court erred when it initially declined to appoint counsel because respondent was not a custodial parent, in similar circumstances , this Court has applied a harmless-error analysis. In re Hall , 188 Mich App 217, 222-223; 469 NW2d 56 (1991). In In re

Hall , the circuit court terminated the respondent’s parental rights , and on appeal, the respondent argued that the circuit court erre d when it conducted a statuto ry review hearing without her counsel present. Id . at 218. On appeal, this Court concluded, in part, that, any error with respect to the respondent’s deprivation of counsel amounted to harmless error. Id . at 222. In particular, this Court noted that counsel was reappointed for the responden t and the respondent was represented by counsel at the termination hearing. Id . Furthermore, testimony offered at the statutory review hearing on behalf of petitioner was repeated a t the termination hearing with counsel for the respondent present. Id . at 223.

Similar to In re Hall , importantly in this case, res pondent was not denied counsel d uring the termination hearing. Although the court declined to appoin t counsel at the outset, four days after petitioner moved to termi nate respondent’s parental right s, the circuit court appointed counsel on or about April 7, 2014. Thereafter, respondent was represented by counsel during the approximately three months before the July 8, 2014, terminationhearing, and at the termination hearing where counsel introduced evidence and argued on behalf of respondent. Like in In re

Hall , here, the evidence that was crucial to the court’s finding gr ounds for termination was introduced at the termination hearing, where respondent was rep resented by counsel. Respondent does not identify any evidence that was introduced a t any of the statutory review hearings that was not introduced during the termination hearing , and a review of the record does not reveal any such evidence. Furthermore, respondent was perm itted to participate in all of the statutory review hearings via telephone from prison and once te rmination was authorized, respondent requested, and was granted appointed counsel.

In sum, although the circuit court erred denying respondent co unsel at the outset of the proceeding, the error does not warrant vacating the court’s ter mination order where the court appointed an attorney after petitioner moved to terminate respo ndent’s parental rights and where counsel represented respondent during the termination phase of the proceeding.

Affirmed.

/s/ Stephen L. Borrello /s/ Amy Ronayne Krause

/s/ Michael J. Riordan