Opinion
No. 346329
06-20-2019
In re A. ARASIA-GALVEZ, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kent Circuit Court Family Division
LC No. 18-050387-NA Before: BECKERING, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order taking jurisdiction over her minor child AAG under MCL 712A.2(b)(2) (parental home unfit for the child). We affirm.
The order appealed refers to both of mother's children, AAG and JD. However, no claim of appeal was filed in JD's case; thus, we have no jurisdiction over his case and we refer to him only as necessary. --------
This case began when mother hosted a party at her home one evening. At this party, a number of guests were drinking alcohol to the point of intoxication, and mother allegedly provided alcohol to minors and sexually assaulted a minor. The following day, when detectives arrived at mother's home to investigate these allegations, mother was unaware of JD's whereabouts even though he had been home throughout the party. Mother was later arrested on charges of third-degree criminal sexual conduct (CSC-III), fourth-degree criminal sexual conduct (CSC-IV), and contributing to the delinquency of a minor. Upon her arrest, mother made insufficient arrangements for her children. After a preliminary hearing, the DHHS removed both AAG and JD and placed them with a relative. At adjudication, the investigating detective testified to the above facts. Mother testified that JD often wandered in the middle of the night and that she was "just confused" as to his whereabouts. The trial court assumed jurisdiction over both children, finding that mother's home was unfit for the children. Mother now appeals, arguing that the trial court incorrectly judged the credibility of her testimony. We disagree.
"To acquire jurisdiction, the factfinder must determine by a preponderance of the evidence that the child comes within the statutory requirements of MCL 712A.2[.]" In re Brock, 442 Mich 101, 108-109; 499 NW2d 752 (1993). This Court reviews "the 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.
A trial court may assume jurisdiction in proceedings concerning a minor child "[w]hose 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." MCL 712A.2(b)(2). A parent's treatment of one child is "probative of the treatment of other children of the party." In re Jackson, 199 Mich App 22, 26; 501 NW2d 182 (1993). Under the doctrine of anticipatory neglect, a "child may come within the jurisdiction of the court solely on the basis of a parent's treatment of another child." In re Gazella, 264 Mich App 668, 680; 692 NW2d 708 (2005). "Abuse or neglect of the second child is not a prerequisite for jurisdiction of that child and application of the doctrine of anticipatory neglect." Id. at 680-681. Additionally, this Court defers to the "special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011), citing MCL 2.613(C).
Mother's sole argument on appeal is that the trial court erred when it found her testimony less credible than the testimony of the investigating detective and the foster care worker assigned to her case. This argument is meritless. It is the trial court's place, not ours, to judge the credibility of testifying witnesses. Ellis, 294 Mich App at 33. We cannot substitute our judgment for that of the trial court. The trial court's judgments of credibility must stand, and therefore, mother's argument fails.
Further, the trial court did not err on the merits of its decision. A preponderance of the evidence presented at adjudication supports the trial court's finding that the children's home was unfit for their health and safety. The investigating detective testified that mother hosted a party and provided alcohol to a number of guests, both adults and minors. During this party, by her own admission, mother became intoxicated. At some point during the party, mother allegedly forced oral sex on a minor. When detectives arrived at mother's home the next evening, mother was sleeping; when she woke, she was unsure where JD was. JD had been at the home throughout the entire party, but mother had failed to supervise him. Mother was arrested the following day, and upon her arrest, she did not have a plan for suitable care and custody for the children.
Given the above testimony, the trial court did not err when it found that the home was unsafe for JD based on mother's alleged criminality and/or drunkenness. Mother was intoxicated while JD was in her care, and she has allegedly provided alcohol to minors and sexually assaulted a minor. While this may have been an isolated incident, the gravity of the allegations against mother make clear that her home, because of criminality and/or drunkenness, was unfit and unsafe for her children. The trial court did not err when it found that the evidence supported its conclusion that the home was unfit for JD to live in. See BZ, 264 Mich App at 296-297. Mother's treatment of JD is probative of her treatment of AAG. See Jackson, 199 Mich App at 26. While AAG may not have been home during this incident, under the doctrine of anticipatory neglect, the trial court could assume jurisdiction over her based on mother's treatment of JD. See Gazella, 264 Mich App at 680. Therefore, the trial court did not clearly err when it exercised jurisdiction over AAG. See id.; BZ, 264 Mich App at 296-297.
Affirmed.
/s/ Jane M. Beckering
/s/ Mark J. Cavanagh
/s/ Amy Ronayne Krause