Opinion
357303
09-16-2021
In re T. BANNER, Minor.
UNPUBLISHED
Wayne Circuit Court Family Division LC No. 2021-000413-NA
Before: Cameron, P.J., and Jansen and Gleicher, JJ.Per Curiam.
Respondent appeals as of right the trial court's order removing her daughter from her care. We affirm.
A petition was filed for protective custody of respondent's daughter, TB, and on May 5, 2021, Referee Anthony Crutchfield entered an order of protective custody removing TB from respondent's care. In the order, Referee Crutchfield found that respondent had fled California for Canada with TB because she believed she was being tracked through TB. When refused entrance at the Canadian border, respondent took TB to the nearest police station, and informed the police that she was no longer willing to care for TB because respondent was being tracked through TB. TB was removed from respondent's care and placed with petitioner, the Department of Health and Human Services (DHHS), respondent was taken for a mental health assessment, and Referee Crutchfield ordered the parties to appear for a preliminary hearing the following day.
On May 6, 2021, Referee Kathleen Allen held a preliminary hearing. Respondent was present at the hearing via telephone, and she stated that she was currently in a hotel room, but she did not know the address. Respondent asserted that she had previously been married to TB's father, but she had full custody of TB. Nichole Soeder, who filed the petition, testified that TB had been placed in a foster home because respondent had not offered any relatives with whom TB could be placed. It was believed that TB was born in Missouri, but Soeder had not received a birth certificate. Soeder requested that the court maintain TB's removal from respondent's care. Referee Allen adjourned the preliminary hearing until May 28, 2021, to allow DHHS to file an amended petition, investigate TB's father, and investigate Missouri custody, divorce, and juvenile proceeding records. On May 6, 2021, the court entered the order of removal, concluding that, in accordance with Referee Crutchfield's findings made in the order of protective custody, it was contrary to TB's welfare to remain with respondent. Respondent appeals the May 6, 2021 order of removal.
Respondent argues that the order of removal should be reversed because there was insufficient evidence for the trial court to find that remaining in respondent's care was contrary to TB's well-being. We disagree.
Generally, for an issue to be preserved for appellate review, it must be raised in the trial court. Glasker-Davis v Auvenshine, 333 Mich.App. 222, 227;__N.W.2d___(2020). "[I]ssue preservation requirements only impose a general prohibition against raising an issue for the first time on appeal." Id. In the lower court, respondent neither raised objections to either of the claims of error now raised on appeal nor objected generally to the removal of TB. Thus, respondent failed to preserve this issue for appellate review.
"Whether child protective proceedings complied with a parent's right to procedural due process presents a question of constitutional law, which we review de novo." In re Williams, 333 Mich.App. 172, 178; 958 N.W.2d 629 (2020) (citation and quotation marks omitted). "This Court reviews a trial court's factual determinations for clear error." Id. "Clear error requires that the reviewing court be left with a firm and definite conviction that a mistake has been made." Id. (citation and quotation marks omitted). "Even if an error occurred, this Court will not disturb the trial court's order unless it would be 'inconsistent with substantial justice' to permit the order to stand." Id. (quotation marks and citations omitted). However, this Court reviews unpreserved claims of error arising out of child protective proceedings for plain error. In re Pederson, 331 Mich.App. 445, 463; 951 N.W.2d 704 (2020). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." In re VanDalen, 293 Mich.App. 120, 135; 809 N.W.2d 412 (2011). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich.App. 1, 9; 761 N.W.2d 253 (2008).
MCR 3.965(C)(2) addresses pretrial placement and provides the following:
(2) Criteria. The court may order placement of the child into foster [care] if the court finds all of the following:
(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 to MCR 3.965(C)(2).
Respondent's primary argument on appeal focuses on the alleged insufficient evidence presented to establish that it was contrary to TB's welfare to remain in respondent's care as required by MCR 3.965(C)(2)(c) and MCL 712A. 13a(9)(c). This argument lacks merit. The trial court relied on Referee Crutchfield's findings, as well as evidence presented at the preliminary hearing, to conclude that it was contrary to TB's welfare to remain in respondent's care. The evidence established that respondent and TB had been living out of their car for several days after fleeing California for Canada because respondent believed that someone was after her and tracking her through TB. When respondent and TB were unable to enter Canada, respondent went to the police station, informing the police that she was no longer willing to care for TB because respondent was being tracked through her. As a result of respondent's concerning behavior, she was taken for a mental health assessment. At the time of the preliminary hearing, respondent was living in a hotel, of which she did not know the address, and expressed concerns about somebody murdering TB. Further, testimony indicated that no relatives or friends had been identified with whom TB could be placed. Respondent disclosed the name of TB's father for the first time at the preliminary hearing, stating that he lived on the streets in Missouri and she had full custody of TB.
On the basis of this evidence, the trial court did not err in concluding that it was contrary to TB's welfare to be placed in respondent's care. Although respondent indicated that TB was from Missouri, DHHS did not have a birth certificate or any proof of where respondent and TB had resided before coming to Michigan or whether respondent had full custody of TB. Moreover, respondent had not provided a stable living situation for TB for at least several days, living out of a vehicle and a hotel of which she could not provide the address. Further, the evidence indicated that there was a potential mental health concern being that respondent had fled California for Canada because she believed somebody was tracking her through TB. Finally, the evidence illustrated that it was contrary to TB's welfare to be in respondent's care because respondent expressed to the police an unwillingness to care for TB.
Respondent also argues that the trial court did not consider all of the factors under MCR 3.965(C)(2) and MCL 712A.13a(9). We disagree.
Respondent also failed to raise this argument in the lower court. Therefore, it is reviewed for plain error affecting substantial rights. In re VanDalen, 293 Mich.App. at 135.
"MCR 3.965(C)(2) and MCL 712A.13a(9) explicitly require that the trial court find all the factors prior to removing a child from a parent's care." Williams, 333 Mich.App. at 184. "[W]hen a statute or court rule requires factual findings as to an enumerated list of factors, the trial court must make a record of its findings as to each and every factor sufficient for this Court to conduct a meaningful review." Id. at 183.
In the order of removal, the court concluded that each of the factors set forth in MCR 3.965(C)(2) and MCL 712A.13a(9) had been established, but the court failed to make specific findings for each of the factors. Williams, 333 Mich.App. at 184, requires that the court make findings for each and every factor. During the preliminary hearing, Referee Allen read Referee Crutchfield's findings into the record and took additional testimony. In the order of removal, the court made specific findings for MCR 3.965(C)(2)(c) and MCL 712A.13a(9)(c). The court also adopted Referee Crutchfield's findings regarding MCR 3.965(C)(2)(d) and MCL 712A.13a(9)(d). In the order of removal, the court did not, however, make specific findings for MCR 3.965(C)(2)(a), MCR 3.965(C)(2)(b) or MCR 3.965(C)(2)(e), and the identical statutory provisions. The trial court erred in failing to make specific findings on the remaining factors. However, the error did not affect the outcome of the proceedings. Even though the court did not make specific findings for each factor, the court concluded that each of the factors had been established, and there was sufficient evidence placed on the record for this Court to conduct a meaningful review. The evidence was sufficient to establish each factor. Thus, the error did not affect the outcome of the proceedings. Other than MCR 3.965(C)(2)(c) and MCL 712A.13a(9)(c), addressed earlier in respondent's first argument, we have addressed all of the other factors below.
The record supports the court's conclusion that custody of TB with respondent would present a substantial risk to TB's life, physical health, or mental well-being as required by MCR 3.965(C)(2)(a) and MCL 712A.13a(9)(a). As discussed earlier, because of respondent's decision to flee to Canada, the evidence established that TB had been living out of a vehicle for several days, without any indication as to when she had last been in a stable environment. The evidence indicated that respondent's decision to flee to Canada was fueled by a belief that she was being tracked through TB. This ultimately resulted in respondent taking TB to the police station and informing the police that she was no longer willing to care for TB based upon the belief that she was being tracked through TB. Respondent's conduct and instability at the time of the preliminary hearing illustrated that TB could be at substantial risk if placed in respondent's care.
Further, the trial court concluded that there was no provision of service or other arrangement except removal of TB reasonably available to adequately safeguard TB from a substantial risk as required by MCR 3.965(C)(2)(b) and MCL 712A.13a(9)(b). This conclusion is supported by the evidence. The record illustrated a likelihood that respondent either did not have the capacity or desire to care for TB at that time. Although respondent contends on appeal that she and TB could have gone to an emergency shelter in lieu of TB being removed, the lawyer-guardian ad litem aptly notes that housing was not the only concern. Referee Crutchfield found that respondent had left TB at the police station, informing the police that she was unwilling to care for TB any longer. Respondent's behavior in trying to flee the country and believing that she was being tracked through TB raised reasonable concerns as to whether she could provide proper care for TB, and it supported the conclusion that TB's removal from her care was appropriate.
The trial court's finding that reasonable efforts were made to prevent or eliminate the need for removal of TB as required by MCR 3.965(C)(2)(d) and MCL 712A.13a(9)(d) is supported by the record. The trial court adopted Referee Crutchfield's findings regarding reasonable efforts. Referee Crutchfield found that DHHS had made efforts to locate relatives and family, but none had been identified. Prior to the preliminary hearing, neither respondent nor TB had identified Blackwell as TB's father. Thus, reasonable efforts were made to prevent removal. Further, on appeal, respondent contends that TB could have been placed with her paternal grandparents in Missouri as proposed by respondent during the preliminary hearing. During the preliminary hearing, respondent expressed that TB had paternal grandparents in Missouri, and if respondent was allowed to take TB to her grandparents, then respondent was sure that TB's aunt would come to pick up TB. Referee Allen explained that nobody was taking TB anywhere, "certainly not to Missouri." Referee Allen's decision not to allow TB to be taken to Missouri at that time was not an error. There was no proof that TB was from Missouri or that she had family in Missouri. Respondent had not produced any documents proving that TB was from Missouri or that respondent had legal custody of TB.
The trial court also concluded that the conditions of custody away from respondent were adequate to safeguard TB's health and welfare as required by MCR 3.965(C)(2)(e) and MCL 712A.13a(9)(e). The record supports this conclusion. TB was removed from respondent's care on May 5, 2021, and placed in the care of DHHS. The following day, May 6, 2021, Soeder testified that TB had already been placed in a foster home and would be enrolled in a school. The court ordered a trauma assessment and therapy for TB, as well as for supervised visits to commence within 48 hours. The record indicates that TB was placed in a stable environment, where she could attend school. She would also receive mental health services, while being able to communicate with respondent.
Affirmed.