Opinion
No. 349872
04-09-2020
In re ROSALES, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court Family Division
LC No. 2019-000114-NA; 2019-000115-NA Before: M. J. KELLY, P.J., and FORT HOOD and BORRELLO, JJ. PER CURIAM.
In this appeal as of right, respondent-father challenges the propriety of the trial court's order following a bench trial, adjudicating him an unfit parent and assuming jurisdiction with respect to his minor children, LR and HR, under MCL 712A.2(b)(1) and (2). For the reasons set forth in this opinion, we vacate the trial court's order of adjudication with respect to father and remand this matter for further proceedings not inconsistent with this opinion.
I. BACKGROUND
In its initial April 25, 2019 petition, the Department of Health and Human Services (DHHS) sought only to terminate the parental rights of the children's mother. The petition alleged that on March 20, 2019, mother was found by law enforcement home alone with the children with heroin "out in the open of the home and accessible to the children." The petition further alleged that mother was arrested for possession of heroin and fourth-degree child abuse. Father was not named as a respondent in that petition.
Mother is not a party to the instant appeal.
The DHHS subsequently filed two amended petitions that named father as a respondent. With respect to father, the second amended petition alleged that there was an incident of domestic violence that occurred between father and mother, in front of the children, on October 25, 2014. According to the petition allegations, father threatened to kill mother during this incident, grabbed her by the neck, and threw her on the ground while the children were present. At mother's request, father took LR to the car so that he would not witness the incident. LR fell out of his car seat at some point and scratched his face. Father was substantiated for improper supervision and threatened harm as a result of this incident, and he failed to cooperate with Children's Protective Services (CPS). Regarding more recent events, the petition further alleged that mother had claimed that the heroin involved in the March 20, 2019 incident belonged to her former boyfriend, who was in the home when father arrived and called the police. The petition alleged that father was aware that mother had previously had her parental rights terminated to another child and that mother had a history of substance abuse but failed to protect LR and HR from the risk of being harmed by mother because he continued to allow her to be the primary caretaker for the children.
Mother was adjudicated by no-contest plea. It was ordered that mother would remain out of the home and that the children would be placed with father.
Subsequently, at a separate proceeding, an adjudication trial for father was conducted before the referee. At this hearing, father testified that he and mother had been in a relationship for 11 years. He knew that she had previously had her parental rights terminated in 2007 before father's relationship with mother began, but he only learned about that fact approximately 3½ years before the instant proceedings. Father explained what he knew about this incident as follows:
Q. And, why did you believe—why do you believe her parental rights were terminated?
A. Because she missed a court date.
Q. What was she having court, related to the children, for?
A. I believe that her, her and her boyfriend took the kid to the hospital, because he had a black eye, or something. And—or, not a black eye, but something was wrong, where she asked him where, where, you know, if he knew what was the deal. He said he didn't know, so she took him to the hospital, and at the hospital they asked her if she knew what was going on, and she said no, I don't, I don't know what happened. And, you know, then the hospital called CPS. That's all I know about it.
Q. And, [mother] told you that the reason that her parental rights were terminated was because she missed a court date?
A. Yes.
Q. One court date?
A. Well, I mean, through the whole process, she said that she did everything that she was asked to do, but then she missed a court date, and supposedly she was in jail when she missed the court date.
Regarding mother's substance abuse, father testified that he was not aware when he first met her that she had a substance abuse problem and that he first became aware of mother's substance abuse issues when she was arrested in March 2019. He maintained that he did not know of any substance abuse problem before March 2019. Additionally, father testified that he was the one who called the police regarding the March 2019 incident and that he reported that "something was wrong" at his house. He had been concerned when he returned home to find the security latch locked. Father explained during his testimony that his concerns related to a suspicion that mother was meeting other men and cheating on father and that this suspicion arose from text messages he had seen. Father testified that these text messages were not about heroin.
Father acknowledged that he knew that mother was in drug treatment at Biomed, but he explained that he believed Biomed was "a clinic" and that mother was enrolled for "[s]ome kind of treatment . . . like counseling." Father testified that mother had told him that she had used drugs "one day" around the time when mother's sister committed suicide, approximately three to four years ago, and that mother enrolled herself in treatment because "she didn't want to fall into continuing." He did not know what substance was involved in that incident. Father testified that he did not believe that mother had a substance abuse problem. He also stated that if he had ever seen mother relapse, he would have told her to leave because he would not allow his children to be around such behavior. Father acknowledged that following the March 20, 2019 incident, mother had been arrested again; the second arrest involved mother driving while under the influence of cocaine. However, mother had already been removed from the home by that point.
At the prosecutor's request, father read a portion of a police report concerning the March 20, 2019 incident into the record. The police report stated that father had indicated that he "was having trouble" with mother "doing heroin in front of their children." Father testified in response to this statement that he "did not tell the police that [mother] was doing drugs" and that the police found the drugs when they were talking to mother in the bedroom. Father admitted that he did not see the police locate the drugs because they had separated father and mother when they arrived at the home and father was placed in the living room. Father read another portion of the police report into the record at the prosecutor's request, which stated as follows:
[Father] arrived at the residence on report day, shortly before 911 call. [Father] attempted to enter the front door to discover that the latch from the inside [sic]. [Father] knows [mother] to be a heroin crack user. [Mother] is known to latch the door when she's doing heroin inside. [Father] continued to knock on the door and took [mother] five to, five to ten minutes to finally open the door.
Father testified in response that mother opened the door before the police were called and that she said she was in the bathroom. The children where in HR's bedroom. Father testified that he and mother had an argument because he "thought somebody was at [his] house or something was wrong." Father testified that he and mother actually both called the police after this argument had occurred. Father thought mother was "either drunk, or something," but he had not seen her act like that before.
Father testified that there was another incident in 2014 when the police were called after he and mother had argued. Father testified that mother had left him and that he went to her house to take LR because father "did not approve" of the area where mother was living. Father testified that he and mother argued but they did not fight, he did not break the window or the door, and he did not choke mother. Father testified that LR fell when father opened the door to his car but that he caught LR and that LR was not injured at all.
Father then read portions of two police reports into the record at the prosecutor's request. The first police report referred to a September 13, 2014 incident and stated, according to father's testimony, as follows:
Victim states that on above date, and she was at the above location, and offender busted the window to the door and kicked the door in. Victim states that she—that she went to see what the noise was, and she was in the—and he was in the porch. And, he started choking—started choking the victim. Victim states that she had company upstairs . . . that came down to see what was going on. The offender fled the location.Father testified that none of what was reported in the above police report was true.
The second police report referred to an October 25, 2014 incident and stated, according to father's testimony, as follows:
My partner and I made the above, above location to investigate to an assault [sic] in progress. When we arrived I talked to [mother], who stated that she came home to find that her child's father, [father], was inside the location with their one-year-old son . . .Father testified, without additional elaboration, that the above account was "not 100 percent true." He explained that he had the saw because he works in construction and "always [has] stuff in [his] pockets." Father also claimed that there was only one incident back in 2014 and did not understand why there were two police reports. Father generally denied that his relationship with mother involved physical aggression, and father testified that he was never charged with any crime related to any of the incidents described in the above police reports. He also testified that to the extent that he was concerned about mother's decision making, that concern was over her decisions regarding other men. He did not have any concerns about her interactions with the children, and he did not believe that she was going to harm the children.
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--one-year-old son LR. She stated that she didn't know how he got inside, because he doesn't have a key. [Father] grabbed [mother] by the throat, and threw her on the ground, stating that she was going to die today. [Mother] then asked [father] to at least take the baby outside if he was going to kill her. [Father] picked up the child and proceeded to walk outside, when he, when he dropped what appeared to be a hand-held saw from his pocket. [Mother] stated that she, then, picked up the saw and told [father] that she will kill him if she had to. [Father], then, went to place the baby in the vehicle, where he fell out and landed on the ground. The child had a large scrape on the forehead and scrape across his nose. The two continued to tussle outside for a moment, until [father] stopped and decided to leave.
The police reports were not admitted as exhibits at trial, and the authoring police officers did not testify. The prosecutor relied heavily on the information in the police reports in arguing that father should be adjudicated unfit, reading from the reports again during her closing argument. The lawyer-guardian ad litem (LGAL) also relied on the 2019 police report in her closing argument that father should be adjudicated unfit.
The referee announced her ruling regarding father's adjudication from the bench at the conclusion of the trial. We quote the entirety of the referee's ruling below:
Okay. So, as far as the petition is concerned, I do find, by a preponderance of the evidence that, that jurisdiction should be taken with regards to the father's petition. I think, you know, the burden of proof is not—is preponderance.
So, I do believe, by a preponderance of the evidence, that there is domestic violence going on between the parents. That the father knew, or should have known, that the mother was using drugs over the past—for a period of time, and that the father failed to protect these children from her substance use and domestic violence.
So, I am going to take jurisdiction.
The trial court entered an order that jurisdiction existed with respect to father under MCL 712A.2(b)(1) and (2) based on father's failure to provide support, education, medical, surgical, or other necessary care for the children's health or morals, as well as that the home environment was unfit by reason of neglect, cruelty, drunkenness, criminality, or depravity on the party of a parent. The order also provided that the children would be released into father's care under the supervision of the DHHS and that mother's removal from the home would be continued.
MCL 712A.2(b)(1) and (2) provide that the court has
(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship . . . .
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(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in . . . .
This appeal followed.
II. STANDARD OF REVIEW
We review a "trial court's decision to exercise jurisdiction for clear error in light of the court's findings of fact." In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." Id. at 296-297.
III. ANALYSIS
"In Michigan, child protective proceedings comprise two phases: the adjudicative phase and the dispositional phase." In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014). "The question at adjudication is whether the trial court can exercise jurisdiction over the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders, including an order terminating parental rights." In re Ferranti, 504 Mich 1, 15; 934 NW2d 610 (2019). A respondent is entitled to "demand a trial (i.e., an adjudication) and contest the merits of the petition." Sanders, 495 Mich at 405. "If a trial is held, the respondent is entitled to a jury, the rules of evidence generally apply, and the petitioner has the burden of proving by a preponderance of the evidence one or more of the statutory grounds for jurisdiction alleged in the petition." Ferranti, 504 Mich at 15 (quotation marks and citation omitted). If the petition allegations against a parent regarding abuse or neglect "are proved by a plea or at the trial, the adjudicated parent is unfit." Sanders, 495 Mich at 405. "[W]hile the adjudicative phase is only the first step in child protective proceedings, it is of critical importance because the procedures used in adjudicative hearings protect the parents from the risk of erroneous deprivation of their parental rights." Ferranti, 504 Mich at 15-16 (quotation marks and citation omitted).
In this case, the referee's cursory conclusions provide little in terms of facilitating meaningful appellate review. Nonetheless, our review of the record leads us to conclude that the referee could not have found as she did without considering hearsay evidence and hearsay within hearsay evidence, most particularly the information contained in the police reports that were simply read into the record even though the authoring police officers never testified. See MRE 801; MRE 805. The referee's finding that a statutory ground for jurisdiction has been established must be supported by a preponderance of legally admissible evidence. MCR 3.972(C)(1); Ferranti, 504 Mich at 15. (emphasis added). Here, when we look only at the admissible evidence and ignore the clearly inadmissible evidence, we are left with a definite and firm conviction that a mistake was made. In re BZ, 264 Mich App at 295-297. The trial court therefore clearly erred by determining that jurisdiction had been established over the minor children with respect to father. Id.
Although not argued, even if this Court were to find that the complained of error was unpreserved, our conclusions would not differ. We deem it necessary to explain our analysis in so concluding. From the outset we note the alarming number and types of errors in these proceedings. Before the referee, father's counsel failed to object to blatantly inadmissible evidence that was necessarily crucial to the outcome of father's adjudication trial, and we discern no strategic reason for having refrained from doing so. We further note that the assistant prosecutor introduced patently inadmissible evidence with the clear intent to use it to substantively prove the truth of the matters asserted, relying heavily on this evidence to support the State's case for adjudicating father unfit. Given the nature of the evidence, there could have been no possible good faith belief by the assistant prosecutor that this evidence was legally admissible in the form in which it was presented before the referee. The LGAL also relied on this improper evidence. The referee based her decision on inadmissible evidence. Thus, for these reasons and the reasons stated in the body of the opinion above, to the extent that this error could be considered unpreserved error calling for plain-error review, we would also conclude that there was error, that was plain, that affected the outcome of the proceedings, and that requires reversal due to its effect on the fairness, integrity, or public reputation of judicial proceedings. See In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011); People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Additionally, we note that on appeal, counsel for respondent repeatedly refers (erroneously) to his client as "respondent-appellee," and further that it took several communications from this Court before respondent's counsel submitted a brief that corrected issues raised by the LGAL. We further note that the LGAL attached to her brief as Exhibit 1 a written statement by respondent. However, the statement was not introduced into evidence at trial, and the LGAL did not move to expand the record on appeal. Consequently, we cannot use respondent's statement as doing so would constitute an impermissible expansion of the record on appeal. See Harkins v Dep't of Natural Resources, 206 Mich App 317, 323; 520 NW2d 653 (1994). --------
Accordingly, we vacate the trial court's adjudication order with respect to father and remand for further proceedings not inconsistent with this opinion.
Vacated and remanded. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello