Issues: Termination under § § 19b(3)(c)(i) & (g); In re Mason; Procedural due process rights; The respondent-mother's participation in the termination hearing via videoconferencing rather than personal presence when she was incarcerated in a nearby jail; In re Vasquez; Mathews v. Eldridge; In re Moss; "Plain error" review; In re Utrera; MCR 3.923(E); Children's best interests; In re Olive/Metts Minors
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Britton
e-Journal Number: 57765
Judge(s): Per Curiam – Fitzgerald, Sawyer, and Shapiro
Concluding that any error was not plain, and that the respondent-mother did not show that it affected the outcome, the court held that she was not entitled to relief on her claim that her procedural due process rights were violated when she was permitted to participate in the termination hearing via videoconferencing, rather than by securing her personal presence, when she was incarcerated in a nearby jail. Further, the trial court did not clearly err in finding that § § 19b(3)(c)(i) and (g) were established by clear and convincing evidence, and that terminating her parental rights was in the children's best interests. The court noted that "the videoconferencing allowed respondent to hear everything that was being said and, because there was two-way communication," she presumably could have asked to confer with her counsel. She did not indicate that witnesses said anything that counsel would not have anticipated, or identify "any additional information that she would have provided to counsel." Her "physical presence at the hearing may have been more practical and, if she had established that her interests were in fact compromised, this factor would weigh in favor of finding a due process violation." As to the government's interest, "because there was no objection, the government was not called on to justify the procedure. However, there does not appear to be any inherent compelling burden on the government that would militate in favor of videoconferencing when the jail is nearby." Given that the "interest in parental rights is compelling," the court noted that "if there is a failure to show that the government would be unduly burdened by bringing someone from a nearby jail and there is a showing that hindering communication between client and counsel might compromise the proceedings, due process would require that a parent be brought to a termination of parental rights hearing. Because the risk cannot be easily ascertained ahead of time, the better practice would be to allow for actual presence." However, it was not clear here that "there was actual error because the absence of an objection did not call for an assessment of whether respondent's interests were adequately protected or whether the government would have been unduly burdened." The court also held that "the trial court did not clearly err in determining that the conditions that led to adjudication - respondent's homelessness, emotional instability, substance abuse, and criminality - continued to exist, that there had been no progress, and that change within a reasonable time was unlikely." Affirmed.
© 2014 State Bar of Michigan