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STATE OF MICHIGAN 

COURT OF APPEALS 

 

UNPUBLISHED 

In re R J B B III HIGGS, Minor. December 1, 2016 

No. 332848 

Shiawassee Circuit Court 

 Family Division 

LC No. 15-013734-NA 

 

Before: RIORDAN, P.J., and METER and OWENS, JJ. 

PER CURIAM. 

 Respondent-mother appeals as of right the trial court order terminating her parental rights 

to the minor child under MCL 712A.19b(3)(g) (failure to provide proper care or custody for the 

child), MCL 712A.19b(3)(i) (previous terminations of parental rights for serious and chronic 

neglect or physical or sexual abuse), and MCL 712A.19b(3)(j) (reasonable likelihood that the 

child will be harmed if returned to the parent’s home).1 We vacate (1) the trial court’s findings 

in its October 13, 2015 order that a statutory basis for termination of respondent’s parental rights 

had been established by clear and convincing evidence, and (2) its April 12, 2016 order 

terminating respondent’s parental rights. We also remand for further proceedings. 

I. FACTS AND PROCEEDINGS 

 Petitioner, the Department of Health and Human Services (“DHHS”), sought to terminate 

respondent’s parental rights to the minor child within days after the child was born. The initial 

petition, which sought both removal and termination of respondent’s parental rights, was based 

on allegations of unstable and unsuitable housing, cognitive impairments and mental health 

issues, drug-related concerns, petitioner’s belief that respondent was not capable of caring for her 

child, and the fact that respondent’s rights to two other children had been terminated. 

 At an October 13, 2015 plea hearing, the parties indicated that respondent wished to enter 

a no contest plea to the trial court’s exercise of jurisdiction over the child and, in order to 

establish a statutory ground for termination, to the fact that her parental rights to other children 

 

1

 During the termination proceedings, the parental rights of the child’s father also were 

terminated, but he is not a party to this appeal. Thus, we will refer to respondent-mother as 

“respondent” in this opinion. 
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had been previously terminated. At the beginning of the hearing, the trial court stated, “So the 

no contest plea into [sic] the jurisdiction would also be accepting the statutory basis for 

termination against mother.” Respondent’s attorney agreed with the trial court’s statement, but 

clarified that respondent’s plea, to the extent that it applied to a statutory basis for termination, 

was limited “to the fact that there were prior terminations of her parental rights as to other 

children.” Ultimately, after discussing the usual course of termination proceedings, explaining 

the rights and burdens of proof applicable during each stage, and ensuring that respondent’s plea 

was knowing and voluntary, the court ruled that there was adequate justification for it to exercise 

jurisdiction over the child. Contrary to the limitation articulated by respondent’s attorney, the 

trial court concluded that there was a statutory basis to terminate respondent’s parental rights 

under MCL 712A.19b(3)(g), (i), and (j). 

 The court then signed an order of adjudication and adjourned for the original 

dispositional hearing. Following the original dispositional hearing, an order of disposition was 

signed by the court, which placed the child in the temporary custody of the court, ordered the 

parents to comply with the case service plan, and set the matter for a review hearing. 

 Following the review hearing, the court signed a new original order of disposition and 

signed an Order Following Dispositional Review/Permanency Planning Hearing, which 

continued the child’s placement in the temporary custody of the court, ordered the parents to 

comply with the case service plan, and set the matter for a combined dispositional review hearing 

and permanency planning hearing. 

 Several months later, after respondent had been given an opportunity to benefit from 

services, the court held a best-interest hearing in March 2016, even though a supplemental 

petition seeking termination of respondent’s parental rights had not been filed.2

 The only 

evidence proffered during the hearing was testimony from a DHHS foster care specialist, who 

stated that her attempts to provide respondent with services since the plea hearing were 

unsuccessful and that respondent had not visited the child since November 2015. In the end, the 

court determined that termination of respondent’s parental rights was in the child’s best interests, 

noting that respondent had not taken advantage of visitation opportunities in several months and 

reasoning that respondent was unable to provide the child permanence or a safe environment. 

 

2

 We note that DHHS generally is not required to provide services when immediate termination 

is sought at the initial disposition, see MCL 712A.19a(2); MCL 722.638; MCL 712A.18f(1)(b). 

We also note that the trial court’s intended plan would have failed to comply with the maximum 

time allowed between the trial and the initial dispositional hearing under MCR 3.973(C), 

although the court explained at the termination hearing that it intentionally did so “in an effort to 

be a bit, well [sic] creative,” based on its personal frustration with DHHS’s internal policies 

(which, in this case, were required by MCL 722.638), and “took a plea . . . and set this out 

approximately six months to see if [respondent] could change the tide on best interests and save 

the child/parent relationship.” However, the trial court did, in fact, comply with the court rule 

when it held the initial dispositional hearing on November 9, 2015. 
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Consistent with its ruling on the record, the trial court entered an order terminating respondent’s 

parental rights on April 12, 2016. 

II. MCL 712A.19b(3)(i) 

Respondent’s general argument on appeal is that the trial court erroneously terminated 

her parental rights without adequate “legal justification” under MCL 712A.19b(3)(i). In 

particular, she contends that the trial court focused solely on the fact that her parental rights were 

previously terminated without making additional findings regarding (1) whether the prior 

terminations were “due to serious and chronic neglect or physical or sexual abuse,” MCL 

712A.19b(3)(i); (2) whether “prior attempts to rehabilitate [respondent] [were] unsuccessful,” 

id.; and (3) whether the services previously provided to respondent “could or should have 

addressed the issues for which the current termination [petition] had been filed.” Although 

respondent fails to cite the applicable court rule in her brief on appeal, she is effectively 

contesting the trial court’s acceptance of her no contest plea for the purpose of establishing a 

statutory ground for termination under MCL 712A.19b(3)(i), without ascertaining factual support 

for the plea. See MCR 3.971(C)(2). We agree that the trial court’s acceptance of her plea to the 

statutory ground for termination under MCL 712A.19b(3)(i) was improper. 

A. STANDARD OF REVIEW 

Generally speaking, we review “for clear error the trial court’s factual findings and 

ultimate determinations on the statutory grounds for termination.” In re White, 303 Mich App 

701, 709; 846 NW2d 61 (2014). However, because respondent failed to object to the plearelated procedure used by the trial court in determining whether a statutory basis existed for 

termination of her parental rights, we review respondent’s unpreserved, procedural claim for 

plain error affecting her substantial rights. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 

(2008).

B. ANALYSIS 

In light of the parties’ discussion with the trial court on the record and the way in which 

the trial court managed the plea proceedings, it seems highly probable that respondent and her 

counsel may have intended, at least at the time of the plea hearing, to stipulate to a statutory 

ground for termination under MCL 712A.19b(3)(i), and that the parties and the trial court 

implicitly handled the plea hearing with this intention in mind. However, on the other hand, the 

parties repeatedly referred to respondent’s intent to enter a no contest plea expressly limited “to 

the fact that there were prior terminations of her parental rights as to other children.” Thus, 

given the lack of clarity in the record, we will assume that respondent intended to enter a no 

contest plea, subject to the applicable procedural safeguards, and did not intend to 

unconditionally stipulate to a statutory basis for termination under MCL 712A.19b(3)(i). 

“In order to terminate parental rights, the trial court must find by clear and convincing 

evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been 

met.” In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). “A respondent may 

make a plea of admission or of no contest to the original allegations in the petition.” MCR 
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3.971(A). The standards that a trial court must meet before accepting a no-contest plea are set 

forth in MCR 3.971.3

 This case implicates MCR 3.971(C)(2), which provides in relevant part: 

 The court shall not accept a plea of . . . no contest without establishing 

support for a finding that one or more of the statutory grounds alleged in the 

petition are true, preferably by questioning the respondent unless the offer is to 

plead no contest. If the plea is no contest, the court shall not question the 

respondent, but, by some other means, shall obtain support for a finding that one 

or more of the statutory grounds alleged in the petition are true. The court shall 

state why a plea of no contest is appropriate. [Emphasis added.] 

As previously explained, it appears from the plea hearing transcript that respondent 

intended to plead no contest to allegations that would have established clear and convincing 

evidence that termination of her parental rights was proper under MCL 712A.19b(3)(i), which 

applies when “[p]arental rights to 1 or more siblings of the child have been terminated due to 

serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the 

parents have been unsuccessful.” In order to properly accept respondent’s no-contest plea, the 

court was required to obtain factual support for the facts that respondent’s rights to at least one of 

her other children had been terminated for either “serious and chronic neglect” or for “physical 

or sexual abuse,” and that prior attempts to rehabilitate respondent had been unsuccessful. See 

MCR 3.971(C)(2); In re Gach, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 

328714); slip op at 5 (explaining the findings that a trial court is required to make in order to 

conclude that termination of a respondent’s parental rights is proper under MCL 712A.19b(3)(i)). 

 Respondent did not specifically plead no contest to the allegations in the petition 

regarding the previous CPS cases in which she had been involved and the services that she had 

been provided. She also did not plead no contest to any allegations concerning the specific 

reasons for the prior terminations of her parental rights or the fact that prior attempts to 

rehabilitate her were unsuccessful. Likewise, the trial court made no reference to the reasons for 

the earlier terminations, and there is no indication in the record, including in the petition itself, 

that respondent’s rights were previously terminated for either “serious and chronic neglect” or 

for “physical or sexual abuse.”4

 Further, the trial court identified no evidence regarding the

 

3

 MCR 3.971 describes rights afforded to pleas entered during the adjudicative phase of child 

protective proceedings. See In re AMAC, 269 Mich App 533, 537; 711 NW2d 426 (2006). As a 

result, strict compliance with MCR 3.971 is not possible during the dispositional phase, but 

under MCR 3.902(A), a trial court is permitted construe the court rules in a manner that 

“secure[s] fairness, flexibility, and simplicity. The court shall proceed in a manner that 

safeguards the rights and proper interests of the parties.” 

4

 A DHHS employee testified during the preliminary hearing—specifically on the issue of 

whether it was contrary to the child’s welfare to remain in respondent’s care and whether 

reasonable efforts had been made to prevent removal—that respondent’s parental rights had been 

terminated twice before for “housing inadequacies, untreated mental health conditions, and 

substance use,” and that respondent had received numerous services. But the trial court made no 
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success or failure of prior attempts to rehabilitate respondent. Therefore, it improperly accepted 

respondent’s no contest plea to the statutory ground for termination and erroneously concluded 

that a statutory basis for termination had been established under MCL 712A.19b(3)(i) by clear 

and convincing evidence. 

III. MCL 712A.19b(3)(g) and (j) 

Respondent also contests the trial court’s finding that a statutory basis for termination had 

been established under MCL 712A.19b(3)(g) and (j). We agree. 

As mentioned above, respondent specifically limited her no contest plea by stating, 

through her counsel, that “[t]he statutory basis . . . is confined to the fact that there were prior 

terminations of her parental rights as to other children.” See MCL 712A.19b(3)(i). Thus, it is 

apparent that respondent failed to plead no contest to allegations that would have established 

clear and convincing evidence for purposes of MCL 712A.19b(3)(g) and (j), and no evidence 

was proffered during the plea hearing that would have otherwise established that termination of 

respondent’s parental rights under MCL 712A.19b3(g) and (j) was proven by clear and 

convincing evidence. 

Given the express limitation of her plea, respondent was entitled to have any other 

statutory ground for termination proven by clear and convincing evidence. See In re JK, 468 

Mich 202, 210; 661 NW2d 216 (2003); In re AMAC, 269 Mich App 533, 536-537; 711 NW2d 

426 (2006). Thus, the trial court further erred in concluding that a statutory basis for termination 

had been established under MCL 712A.19b(3)(g) and (j). 

IV. CONCLUSION 

The trial court erroneously accepted respondent’s no contest plea to statutory grounds for 

termination under MCL 712A.19b(3)(g), (i), and (j). Accordingly, respondent’s plea and the 

subsequent order terminating her parental rights must be set aside.5

 See In re Wangler, 498 Mich 

at 911. 

reference to this statement during the plea hearing, and there is no indication in the record that 

this testimony was used to establish factual support for the no contest plea. Moreover, the 

caseworker’s testimony does not establish on its own that respondent’s rights were terminated 

for “serious and chronic neglect” or “physical or sexual abuse.” 

5

 We also note that once the trial court enters an initial order of disposition that places the child 

in the temporary custody of the court, orders the parent to comply with an original or amended 

case service plan, and sets the matter for a dispositional review hearing, the parent’s parental 

rights may not be terminated unless a supplemental petition is filed, one or more statutory 

grounds for termination are established under MCL 712A.19b(3), and the trial court finds that 

termination is in the child’s best interests. MCR 3.977(H). 
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The order terminating respondent’s parental rights is vacated and the matter is remanded 

for further proceedings consistent with this opinion. We do not retain jurisdiction. 

/s/ Michael J. Riordan 

/s/ Patrick M. Meter 

/s/ Donald S. Owens