                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                    UNPUBLISHED
In the Matter of MOORE/PEGUES, Minors.                              November 18, 2014

                                                                    No. 319712
                                                                    Muskegon Circuit Court
                                                                    Family Division
                                                                    LC No. 12-041976-NA


Before: SHAPIRO, P.J., and WHITBECK and STEPHENS, JJ.

PER CURIAM.

        Respondent-mother appeals from the trial court order terminating her parental rights to
the three minor children under the Juvenile Code, MCL 712A.1 et seq. We reverse and remand
for entry of an order terminating her parental rights under the Adoption Code, MCL 710.21 et
seq.

       Respondent’s three children were removed from her care on June 29, 2012. On July 11,
2012, the trial court found, by a preponderance of the evidence, that there were statutory grounds
to exercise jurisdiction over the children under MCL 712A.2(b) because respondent failed to
provide the children with appropriate care and because her home was an unfit environment.

        On November 20, 2013, the date set for a termination hearing under the Juvenile Code,
the parties reached an agreement that they placed on the record. Under this agreement,
respondent would agree to voluntarily terminate her parental rights to the three minor children,
but would do so under the Adoption Code rather than the Juvenile Code. The reason for taking
the plea under the Adoption Code was explicitly set forth at the hearing, namely that respondent
wished to avoid the possibility that the instant termination might serve as a basis for termination
of other children she might later have because termination of a parent’s rights under the Juvenile
Code constitutes a statutory basis for termination of rights as to another child. MCL
712A.19b(3)(l) provides that statutory grounds for termination of parent’s parental rights exist
where “[t]he parent’s rights to another child were terminated as a result of proceedings under
section 2(b) of this chapter . . . .”1 At the hearing, the prosecutor indicated his agreement with


1
  The proceedings in this case did not involve allegations of abuse as defined in MCL
712A.19b(3)(m) and, therefore, respondent’s voluntary termination would not provide for the
application of that subsection as to any future children.



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termination under the Adoption Code. He affirmatively stated that respondent’s “release here
will not be used against her in any way to terminate the rights of any other children she may
have” and stated that, “what I am asking the Court to do is to take her release under the adoption
code as opposed to termination under the juvenile code.” The court reviewed the “Advice of
Rights Termination of Parental Rights” form that respondent signed. The form stated: “I
understand that my plea in this case cannot be used as a basis for the termination of my parental
rights with any other child of mine.” The court confirmed this understanding by asking
respondent: “And do you understand that this plea cannot be used against you later on to
terminate rights on another child,” to which respondent answered, “yes.” Respondent then stated
her belief that termination was in the best interests of the children and the trial court found as
such.

        The order entered by the court on November 25, 2013, however, was a form order used
for terminations under the Juvenile Code. The form provided that “there is clear and convincing
evidence that a statutory basis exists for terminat[ion,]” although the trial court made no such
finding and the order referenced no particular statutory ground.

        In her brief to this Court, respondent argues that the trial court clearly erred when it
terminated her parental rights under the Juvenile Code without ever determining any statutory
grounds for termination. Petitioner responds that, “[a]lthough the proceedings in this case were
initiated under the juvenile code, the release and termination of the Respondent’s parental rights
were handled under the adoption code” and argues that because respondent failed to seek
rehearing or appeal within 21 days, this Court lacks jurisdiction. See MCL 710.65(1).

       To some degree, both parties are correct. Respondent is correct that termination was not
properly established under the Juvenile Code. Petitioner is correct that the order of termination
should have referenced the Adoption Code as its basis rather than the Juvenile Code.

       The cause of this confusion arises from the trial court’s failure to carefully separate the
proceedings under the Juvenile Code and the Adoption Code. When respondent indicated that
she wished to release her rights, the trial court should have ordered a recess in the Juvenile Code
proceeding and begun an Adoption Code proceeding. After taking respondent’s release and
entering the appropriate orders under the Adoption Code, the trial court could then have
reconvened the Juvenile Code proceeding and entertained and taken under advisement a motion
to dismiss the Juvenile Code termination petition as to respondent. Upon the expiration of the
time period for respondent to request a rehearing and/or file an appeal under the Adoption Code,
MCL 710.64(1); 710.65(1), the trial court could then have granted the motion to dismiss the
Juvenile Code termination petition as to respondent.

         Though respondent’s claim of appeal was not timely filed, we exercise our discretion to
treat it as a delayed application for leave to appeal, which we grant.2 See, e.g., In re Beatrice


2
A party may seek delayed appeal from an order terminating parental rights within 63 days.
MCR 3.993(C)(2); 7.205(G)(6).




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Rottenberg Living Trust, 300 Mich App 336, 354; 833 NW2d 384 (2013). Further, because the
trial court entered an order voluntarily terminating respondent’s parental rights under the
Juvenile Code instead of under the Adoption Code, we vacate that order and remand for entry of
an order terminating respondent’s parental rights under the Adoption Code, consistent with the
intent of the parties.3 Because this will constitute the first written order terminating respondent’s
parental rights, respondent will retain her right to move for a rehearing and/or timely file an
appeal.4

        Vacated and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.



                                                              /s/ Douglas B. Shapiro
                                                              /s/ William C. Whitbeck
                                                              /s/ Cynthia D. Stephens




3
  The voluntary release of parental rights must be “knowingly and voluntarily made.” In re
Burns, 236 Mich App 291, 292; 599 NW2d 783 (1999). Thus, because the order entered by the
trial court terminated respondent’s parental rights under the Juvenile Code, not the Adoption
Code, we cannot conclude that respondent’s release was knowingly and voluntary made, as she
was told that her release would not provide statutory grounds for termination of her rights to any
other children. Because a parent’s rights to their children are fundamental, see In re Rood, 483
Mich 73, 91; 763 NW2d 587 (2009), we find that the entry of an order terminating respondent’s
rights to the three children under the Juvenile Code constituted plain error affecting substantial
rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008).
4
  We note that respondent’s arguments in this appeal that her plea was made without “free will”
because she was only 19 years old, that she was indecisive regarding the plea, and that she
“hastily agreed to release her parental rights” appear unconvincing. The proceedings in this case
began more than fifteen months prior to termination. Respondent attended numerous hearings
and was consistently represented by counsel. Her statements at the termination hearing indicate
that she understood the consequences of a plea under the Adoption Code voluntarily elected to
release her rights under that Code. She further stated her belief that termination was in the
children’s best interests.



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