Opinion
No. 354200
01-21-2021
In re BISSONETTE, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court Family Division
LC No. 20-136823-NA Before: SWARTZLE, P.J., and BORRELLO and RONAYNE KRAUSE, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order removing her two children from her custody following a preliminary hearing. We affirm.
The trial court also removed the children from their father's custody, but he has not appealed.
I. BACKGROUND
In June 2020, the Department of Health and Human Services (DHHS) filed a petition requesting removal of respondent's two children from the home because respondent had a significant history of substance abuse, the children were present when she overdosed, there was a history of domestic violence between respondent and the children's father, and respondent did not have stable housing. The DHHS outlined five complaints made to Child Protective Services (CPS) between 2011 and 2015, which included allegations that respondent was using substances and was neglecting the children. One week before the petition was filed, DHHS received a complaint stating that respondent had been heavily using drugs ever since she had relapsed in approximately April 2020, and that she had overdosed twice within the previous month. It was reported that the motel room in which respondent and children were living was filthy and infested with bugs. It was also reported that the children's father had physically abused her and had moved out of the motel room approximately one week before the petition was filed.
At the preliminary hearing, the referee concluded that the children should be removed from respondent's custody based on her significant history of substance abuse, which included an overdose witnessed by the children, along with her history with CPS, the domestic violence between her and the children's father, and the unfit conditions of the motel room where she was living with the children. The trial court found that it was contrary to the children's welfare to remain in respondent's home because of the allegations of substance abuse and domestic violence in the children's presence, along with the unsuitable living conditions. The trial court ordered that the children be placed under the care and custody of DHHS.
This appeal followed.
II. ANALYSIS
Respondent argues that the trial court failed to establish all the grounds for removal of the children under MCR 3.965(C)(2) and MCL 712A.13a(9).
At the preliminary hearing in a child-protective proceeding, the trial court "must decide whether to authorize the filing of the petition and, if authorized, whether the child[ren] should remain in the home, be returned home, or be placed in foster care pending trial." MCR 3.965(B)(12). If the trial court authorizes the filing of the petition, it "may release the child to a parent, guardian, or legal custodian." MCR 3.965(B)(13)(a). Alternatively, the trial court may order placement of the child after making the requisite findings under MCR 3.965(C). MCR 3.965(B)(13)(b).
MCR 3.965(C)(2) provides:
The court may order placement of the child into foster case if the court finds all of the following:The trial court must make findings on all factors before removing a child from a parent's care. In re Williams, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 351081); slip op at 6. In this case, the trial court found in its order following the preliminary hearing that all grounds for removal were present. Respondent challenges only the trial court's findings with respect to factors (a), (b), (d), and (e).
(a) Custody of the child with the parent presents a substantial risk of harm to the child's life, physical health, or mental well-being.
(b) No provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from the risk as described in subrule (a).
(c) Continuing the child's residence in the home is contrary to the child's welfare.
(d) Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child.
(e) Conditions of child custody away from the parent are adequate to safeguard the child's health and welfare.
MCL 712A.13a(9) is identical in substance to MCR 3.965(C)(2). --------
We review the trial court's factual findings for clear error. In re Beers, 325 Mich App 653, 680; 926 NW2d 832 (2018). "A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made." In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016) (cleaned up). We review de novo the interpretation and application of statutes and court rules. In re Ferranti, 504 Mich 1, 14; 934 NW2d 610 (2019).
We conclude that the trial court did not clearly err by finding that continued custody of the children with respondent presented a substantial risk of harm pursuant to MCR 3.965(C)(2)(a) and MCL 712A.13a(9)(a). We note at the outset that allegations of respondent herself being a victim of domestic violence were not sufficient to remove respondent's children from her care and custody. Cf In re Plump, 294 Mich App 270, 273; 817 NW2d 119 (2011) (in the context of a termination proceeding, explaining that "it would be impermissible for a parent's parental rights to be terminated solely because he or she was a victim of domestic violence"). But apart from the domestic-abuse allegations, there was extensive evidence of respondent's drug abuse, neglect, and housing problems. According to the DHHS, respondent relapsed in April 2020, and at the time the petition was filed, she had overdosed twice within the previous month. Respondent was unable to provide proper care and custody when she overdosed. Moreover, the children had reported that respondent would go to the bathroom to use drugs and that they saw her overdose. Additionally, there was testimony that although respondent's motel room was being sprayed for bugs, black mold and signs of water leaks were present in the room. Based on respondent's significant history of drug abuse and the unsuitable conditions of the motel room, there was no clear error in the finding that custody of the children with respondent presented a substantial risk of harm to their life, physical health, or mental well-being. See MCR 3.965(C)(2)(a); MCL 712A.13a(9)(a).
The trial court also did not clearly err by finding that no provision of service or other arrangement except removal was reasonably available pursuant to MCR 3.965(C)(2)(b) and MCL 712A.13a(9)(b), that reasonable efforts were made to prevent or eliminate the need for removal pursuant to MCR 3.965(C)(2)(d) and MCL 712A.13a(9)(d), and that conditions of child custody away from respondent were adequate to safeguard the children's health and welfare pursuant to MCR 3.965(C)(2)(e) and MCL 712A.13a(9)(e). The record indicated that the DHHS had repeatedly encouraged respondent to check into an inpatient-rehabilitation facility to address her substance abuse, but she initially refused and stated that she could stop using drugs "on her own." Although respondent argues on appeal that she was trying to get into a rehabilitation facility and the record includes testimony that she "did get on board kind of at the end," respondent equivocated, using the phrase, "if I go," with respect to the facility.
Also, problems continued to exist with respondent's living situation. At some point, respondent and the children had lived with her aunt, but the aunt made them leave for an unknown reason. At the preliminary hearing, respondent indicated that the aunt was willing to allow the children to live with her again, but there was no indication that the aunt was willing to allow respondent to move back in the home. Further, although respondent allegedly planned on living with a male friend after she was no longer able to live with her aunt, respondent refused to make a safety plan for those living arrangements. Therefore, despite reasonable efforts for alternative placement, no alternative arrangements were identified. Accordingly, there was no reasonable alternative but removal to protect the children's safety.
Affirmed.
/s/ Brock A. Swartzle
/s/ Stephen L. Borrello
/s/ Amy Ronayne Krause