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### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED August 23, 2016

In re TRUMBLE, Minor.

No. 330627

Gladwin Circuit Court Family Division

LC No. 15-000029-NA

Before: O WENS , P.J., and S AWYER and S HAPIRO , JJ.

P ER C URIAM

.

Respondent appeals as of right from the order terminating her parental rights to the minor child under MCL 712A.19b(3)(a)( ii ) (parent has deserted child for 91 or more days), (c)( i ) (conditions leading to adjudication continue to exist), (g) (fa ilure to provide proper care and custody), and (j) (likelihood of h arm if returned to the parent ). For the reasons stated in this opinion, we affirm. 1

Respondent’s sole argument on a ppeal is that the trial court e rred when it did not sua sponte appoint counsel to represent her, despite her on-the-rec ord waiver of counsel at the preliminary hearing, her failure to attend any subsequent heari ngs even though she was served with notice of each hearing, and her failure to respond to repe ated direct contacts from Department of Health and Human Se rvices (DHHS) staff informing her of the status of the case and the importance of appearing at the proceedings. She assert s that the trial court’s failure to appoint counsel deprive d her of due process. 2 After a full review of the record, we find no due process violation.

At the preliminary hearing, respondent stated that she was abl e to read the petition, that she wished to represent herself, and that she wished to make ad missions and obtain a plan of service to help her: care for her child’s special medical needs , obtain stability, and overcome her

1 The trial court also terminated the parental rights of the chi ld’s putative father , but he is not a party to this appeal.

2 “Whether child protective proceedings complied with a parent’s right to procedural due process presents a question of constitutional law” subject to review de novo. In re Sanders , 495 Mich 394, 403-404; 852 NW2d 524 (2014).-2- serious drug abuse problem. When it appeared that respondent m ight not understand that her admissions might later be used as grounds to terminate her pare ntal rights, the trial court specifically informed her of thi s fact and again reminded her t hat she could decline to make any admissions. The court also asked whether respondent was sure s he wished to waive counsel, which she again confirmed. The trial court again advised respo ndent that her admissions “could lead to a request for termination” if she did not follow throug h with the treatment plan and respondent again stated that she wished to proceed. Thereafter , respondent admitted (1) that she had failed to take her daughter to any of her quarterly-schedul ed appointments (or the rescheduled appointments) at th e University of Michigan Hospita l for treatment of her daughter’s oligoarticular juvenile idiopathic arthritis, (2) that she had a methamphetamine abuse problem, and (3) that she lacked adequate housing for the child. Respon dent also confirmed that the child had been placed with a materna l aunt and that she had no object ion to that arrangement.

As of the dispositional hearing on August 4, 2015, nearly four months following the plea to jurisdiction, respondent visited her child no more than five times. Despite the ongoing proceedings and her responsibilities under the case service pla n, respondent moved to Kentucky and then Indiana and she failed to comply with nearly every pro vision of the case service plan. She did make a phone call to the court at some point stating th at she had hired an attorney and requesting that the August 4, 2015 hearing be adjourned. The c ourt noted that no appearance had been filed, did not adjourn the hearing, and continued the prev ious orders.

Respondent, despite being served with notice of the hearing, d id not appear at the next dispositional hearing which was on October 13, 2015. At that h earing, petitioner indicated its

intent to seek termination and as ked the court to consider appo inting counsel for respondent “if

the Court finds that that’s n ecessary.” Counsel for petitioner also stated that respondent had been served with the termination petition, that she had been contact ed personally by telephone, and that respondent indicated her in tention to remain in Indiana.

The termination hearing took place on November 10, 2015. Resp ondent did not appear despite being served and no appe arance on her behalf was ever f iled. Testimony was admitted that respondent had not visited the child since July 2, 2015, that she had only called the child three times, and that no progress had been made. The DHHS serv ice specialist testified that he had reached respondent by telephone about 10 days before the he aring and had personally advised her of the termination hearing.

Parents have a fundamental liber ty interest in making “decisio ns concerning the care, custody, and control of their chi ldren” that is protected by th e due process clause of the

Fourteenth Amendment to the United States Constitution. In re Sanders , 495 Mich 394, 409; 852 NW2d 524 (2014). “The fundamental liberty interest of natu ral parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the St ate.” Santosky v Kramer , 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). “[T]he nature of the process due in parental rights termination proceedings t urn on a balancing of . . . the private interests affected by the proceeding; the risk of error created by the State’s chosen pro cedure; and the countervailing governmental interest supporting use of the challenged procedur e.” Id. at 754, citing Lassiter v Dep’t of Social Servs , 452 US 18, 27-31; 101 S Ct 2153; 68 L Ed 2d 640 (1981).-3- The court’s failure to sua spont e appoint counsel, however, di d not deprive her of due process. We have interpreted M CR 3.915(B)(1) to require “affir mative action on the part of the respondent to trigger the appointment and continuation of appoi nted counsel in all hearings which may affect the respondent’s parental rights.” In re Hall , 188 Mich App 217, 218; 469 NW2d 56 (1991). In Hall , the respondent relinquished her right to counsel when she “fa iled to contact her appointed counsel for sixteen months, did not appea r at review hearings herself, and was residing at an unknown address in Chicago where counsel was unable to locate her.” Id. at 222. Here, respondent’s only appearance was at the preliminaryhearing where she expressly and repeatedly declined the right to counsel despite the trial cour t’s warnings. Further, like the respondent in Hall , she thereafter failed to appe ar at any review hearings. And despite being personally served with notice of the termination hearing while she was in Kentucky, respondent failed to attend it. Accordingly, on this record, because invo cation of the right to appointed counsel requires “affirmative action on the part of a responden t,” the trial court did not err in declining sua sponte to appoint counsel for respondent.

Respondent also argues that the trial court should have appoin ted counsel in light of the court’s and the case worker’s expressions of concern at various times with regard to whether she understood the seriousness of the proceedings. Where a child p rotective proceeding involves a parent “with a known or suspected intellectual cognitive, or developmental impairment,” neither the court nor the petitioner “may sit back and wait for the par ent to assert his or her right to reasonable accommodations,” but rather “must offer evaluations to determine the nature and extent of the parent’s disabil ity and to secure recommendations for tailoring necessary

reunification services to the individual.” In re Hicks/Brown, Minors , ___ Mich App ___, ___: ___ NW2d ___ (Docket No. 328870, issued April 26, 2016), slip o p at 16 (emphasis in original).

In Hicks/Brown , “[c]aseworkers commented on th e overt appearance of [the] res pondent’s impairment upon meeting her, as well as noting her difficulty i n communicating on the telephone, her shyness and hesita ncy, and her flat affect.” Id. at ___; slip op at 1. “The only time that [the] respondent said anything beyond ‘yes’ or ‘no’ a t any proceeding was at [the adjudication] trial.” Id. at ___; slip op at 4. The manner in which the trial court jud ge spoke to respondent showed that it recognized her impairment. Id. at ___; slip op at 3. When the respondent in Hicks/Brown was eventually evaluated by a psychologist and psychiatrist it was determined that she had a very poor cognitive functioning. Id. at ___; slip op at 4.

The present case shows none of the overt appearances of cognit ive impairment that were present in Hicks/Brown . At the preliminary hearing, respondent stated that she under stood the consequences her admissions could bring but that she still wish ed to go forward with offering admissions. While obviously not an attorney, she was articulat e and had no apparent difficulty participating in the proceedings including asking and answering questions. Further, the trial court’s and the foster care worker’s statements questioning whe ther, in light of her failure to appear at a hearing, respondent fully understood the nature of the proceedings occurred before the court was advised that respondent had an outstanding felonywarrant, 3 which supported the

3 We note that proof of outstanding felony warrants for responde nt was presented at the termination hearing.-4- conclusion that respondent may simply have chosen to risk termi nation rather than risk being arrested on a felony warrant.

Having expressly and knowingly declined the offer of appointed counsel at the preliminary hearing and having n ever shown that she suffered fr om an obvious cognitive impairment, respondent has failed to show that the trial court denied her due process by declining to sua sponte appoint counsel.

Affirmed.

/s/ Donald S. Owens /s/ David H. Sawyer /s/ Douglas B. Shapiro