Opinion
No. 352928
09-17-2020
In re CULBRETH/QUALLS-WAITERS/WAITERS, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 14-518314-NA Before: LETICA, P.J., and FORT HOOD and GLEICHER, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order after a dispositional review and permanency planning hearing in which the trial court declined to return respondent's children, HLC, KEW, KLQ, and KEQ (collectively, the children), to respondent's custody. Respondent also challenges the trial court's order after the preliminary hearing in which the trial court suspended respondent's parenting time with the children. On appeal, respondent argues that the trial court clearly erred when it determined that returning the children to respondent's custody was contrary to the children's welfare, and the trial court clearly erred when it determined that parenting time, even if supervised, may be harmful to the children. We affirm.
I. FACTUAL BACKGROUND
These proceedings began when petitioner filed a permanent custody petition to remove the children from respondent's custody and terminate respondent's parental rights. Before the permanent custody petition was filed, petitioner received information that respondent's live-in romantic partner, LAQ, physically abused HLC and KEW. Petitioner also received information that respondent failed to protect HLC and KEW from the abuse. Accordingly, the children were placed with a family member as part of a safety plan arranged by Child Protective Services (CPS). Respondent removed the children from the safety plan and could not be located for several days. Thus, the trial court entered an ex parte order to take the children into protective custody. Before respondent could be apprehended, respondent surrendered her children to law enforcement officers. Respondent was subsequently arrested.
The trial court conducted a preliminary hearing over the course of several days. At the preliminary hearing, petitioner presented evidence that LAQ physically abused HLC and KEW, and respondent was aware of the abuse. Respondent maintained that she had no knowledge of the abuse. Following the preliminary hearing, the trial court declined to return the children to respondent's custody and suspended respondent's parenting time with the children. This appeal followed.
II. STANDARD OF REVIEW
At the preliminary hearing, the trial court must determine whether there is probable cause to authorize the petition and may order temporary placement of the minor children. MCR 3.965(B)(12). This Court reviews de novo the interpretation and application of statutes and court rules. In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014). This Court reviews for clear error the trial court's findings of fact underlying legal issues. In re McCarrick/Lamoreaux (On Remand), 307 Mich App 436, 463; 861 NW2d 303 (2014). A finding is clearly erroneous if, after reviewing the entire record, this Court is left with a definite and firm conviction that the trial court made a mistake. Id.
II. PLACEMENT OUTSIDE OF RESPONDENT'S CUSTODY
The trial court did not clearly err when it placed the children outside of respondent's home under MCL 712A.13a(9) and MCR 3.965(C)(2).
When the Department of Health and Human Services petitions for removal of a child under MCL 712A.2(b), "the court must hold a preliminary hearing or hearings and may authorize the petition upon a showing of probable cause that 1 or more of the allegations in the petition are true and fall within the provisions of [MCL 712A.]2(b)." In re Rood, 483 Mich 73, 94-95; 763 NW2d 587 (2009) (citation and quotation marks omitted). "The preliminary hearing is governed by MCL 712A.13a and the corresponding provisions of MCR 3.965." Id. at 95. Under MCL 712A.13a(9) and the identical provision in MCR 3.965(C)(2), the court may order placement of a child into foster care if the court finds all of the following conditions:
(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.
In this matter, the trial court adopted the referee's findings and determined that the criteria for placing the children into foster care under MCL 712A.13a(9) and MCR 3.965(C)(2) were met. Thus, the trial court placed HLC and KEW with their non-respondent father and placed KEQ and KLQ in a licensed foster home. On appeal, respondent challenges the referee's findings that continuing the children's residence in respondent's home was contrary to the children's welfare under MCL 712A.13a(9)(c) and MCR 3.965(C)(2)(c). The trial court did not clearly err when it adopted the referee's findings and determined that continuing the children's residence in respondent's home was contrary to the children's welfare. Thus, the trial court did not clearly err when it placed the children outside of respondent's home under MCL 712A.13a(9) and MCR 3.965(C)(2).
During the preliminary hearing, petitioner presented evidence that LAQ physically abused HLC and KEW, KEQ and KLQ were aware of the physical abuse, and respondent failed to protect HLC and KEW from the physical abuse. At the continued preliminary hearing, Kaeyava Ivey, a foster care worker, testified that a doctor examined HLC and KEW shortly after respondent surrendered the children to the police. The doctor identified signs of physical abuse on HLC and KEW including scratches, bruises, and swelling. Ivey also testified that she interviewed each of the children, and they all reported that LAQ physically abused HLC and KEW. Ivey's testimony was corroborated by Trevor Ross, a CPS investigator, at the continued preliminary hearing. Ross testified that he interviewed HLC and KEW, and they told Ross about specific instances of physical abuse that occurred on a consistent basis between 2016 and 2020. Notably, HLC and KEW told Ross that LAQ beat HLC and KEW with various objects, and LAQ forced HLC to sleep outside on a winter night in 2019. During the continued preliminary hearing, Ivey and Ross both opined that respondent had knowledge of the physical abuse and failed to protect the children from LAQ.
Petitioner also presented evidence that respondent was in a longstanding romantic relationship with LAQ and the relationship was ongoing. During the continued preliminary hearing, respondent and LAQ both acknowledged that they lived together. At that same hearing, Ivey testified that respondent was still in a romantic relationship with LAQ. Ivey's testimony was corroborated during the continued preliminary hearing when Ross testified that respondent was still in a romantic relationship with LAQ. During the continued preliminary hearing, respondent's attorney informed the trial court that respondent was no longer living with LAQ. However, Ivey and Ross both testified that they were unaware that respondent was no longer living with LAQ. Moreover, respondent failed to present any evidence to show that respondent was no longer living with LAQ.
Based upon the evidence presented at the preliminary hearing, the trial court did not clearly err when it determined that continuing the children's residence in respondent's home was contrary to the children's welfare. The evidence showed that LAQ physically abused HLC and KEW on a consistent basis, KEQ and KLQ were aware of the abuse, and respondent failed to protect the children from either being subject to physical abuse or witnessing physical abuse. Indeed, HLC and KEW had visible injuries, and Ivey and Ross both opined that respondent had knowledge of the abuse. Although respondent's counsel asserted that respondent no longer lived with LAQ, the evidence indicated otherwise. Respondent and LAQ had a longstanding relationship, and they both acknowledged that they lived together. Furthermore, respondent failed to present any evidence that she no longer lived with LAQ. It is well settled that an attorney's statements and arguments are not evidence. In re Conservatorship of Brody, 321 Mich App 332, 349; 909 NW2d 849 (2017). Based upon the foregoing, the trial court did not clearly err when it determined that continuing the children's residence in respondent's home was contrary to the children's welfare and placed the children outside of respondent's home under MCL 712A.13a(9) and MCR 3.965(C)(2).
III. SUSPENSION OF PARENTING TIME
The trial court did not clearly err when it suspended respondent's parenting time because the evidence presented at the preliminary hearing showed that allowing respondent to have parenting time, even if supervised, may be harmful to the children.
Under MCR 3.977(D), and the corresponding provision in MCL 712A.19b(4), "[i]f a petition to terminate parental rights to a child is filed, the court may suspend parenting time for a parent who is a subject of the petition." While these provisions generally govern parenting time once a petition to terminate parental rights has been filed, MCR 3.965(C)(7) and MCL 712A.13a(13) govern parenting time or visitation between the preliminary hearing and the adjudicatory hearing. In re Laster, 303 Mich App 485, 488; 845 NW2d 540 (2013). Under MCR 3.965(C)(7)(a), "[u]nless the court suspends parenting time pursuant to MCL 712A.19b(4), or unless the child has a guardian or legal custodian, the court must permit each parent frequent parenting time with a child in placement unless parenting time, even if supervised, may be harmful to the child." Correspondingly, MCL 712A.13a(13) provides that, "[i]f the court determines that parenting time, even if supervised, may be harmful to the juvenile's life, physical health, or mental well-being, the court may suspend parenting time until the risk of harm no longer exists."
In this matter, petitioner filed a supplemental permanent custody petition to take jurisdiction over the children and terminate respondent's parental rights. Thus, the trial court had the power to suspend respondent's visitation under MCR 3.977(D) and MCL 712A.19b(4) because respondent was the subject of the permanent custody petition. On that date, however, the trial court had not completed the preliminary hearing. After the preliminary hearing was completed, the trial court entered an order stating that allowing respondent to have parenting time, even if supervised, may be harmful to the children. Thus, the order following the preliminary hearing indicates that respondent's parenting time was suspended between the preliminary hearing and the adjudicatory hearing under MCR 3.965(C)(7) and MCL 712A.13a(13).
The trial court did not clearly err when it determined that allowing respondent to have parenting time, even if supervised, may be harmful to the children. The evidence presented at the preliminary hearing showed that LAQ physically abused HLC and KEW on a consistent basis, KEQ and KLQ were aware of the abuse, and respondent failed to protect the children from either being subject to physical abuse or witnessing physical abuse. Indeed, HLC and KEW had visible injuries, and Ivey and Ross both opined that respondent had knowledge of the abuse. Considering that respondent was either aware of the prolonged physical abuse or ignored the signs of the prolonged physical abuse, the evidence indicated that visitation may be harmful to the children's emotional well-being because the children may be reminded of the abuse and respondent's failure to protect the HLC and KEW from the abuse.
Perhaps most notably, respondent previously absconded with the children although they were placed in a safety plan with a relative. For this reason, Ivey testified that she would not recommend allowing respondent to have visitation with the children. Ivey emphasized that, although there were security measures in place during supervised visits, there had been unspecified incidents in the past that security was unable to control. Thus, Ivey opined that supervised visits may provide respondent an opportunity to abscond with the children. Accordingly, the evidence indicated that supervised visitation may have provided respondent an opportunity to abscond with the children a second time, thereby indicating that visitation may be harmful to the children's physical health. In sum, the trial court did not clearly err when it suspended respondent's parenting time because supervised parenting time posed a risk to the children's emotional well-being and physical health.
Affirmed.
/s/ Anica Letica
/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher