Summary
reviewing a constitutional challenge by the mother of Plaintiff's children to state court child custody determinations
Summary of this case from Clark v. Mich. 7th Judicial Circuit CourtOpinion
No. 351120
05-21-2020
In re EGGENBERGER/CLARK, 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 UNPUBLISHED Genesee Circuit Court Family Division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. 18-135398-NA Before: RONAYANE KRAUSE, P.J., and SERVITTO and REDFORD, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order taking jurisdiction over her minor children, CTE, WJE, and BC, following an adjudicative jury trial. We affirm.
CTE's and WJE's putative fathers were not involved in the proceedings. However, BC's father was married to respondent-mother and was also a respondent in these proceedings. The trial court took jurisdiction over BC in January 2019. However, he is not a party to this appeal. Nonetheless, we will refer to BC's father as respondent-father and use the term "respondents" when referring to both respondent-mother and respondent-father. --------
In August 2018, the Department of Health and Human Services (DHHS) filed a petition requesting removal of the children from the home where they were temporarily residing with their maternal grandparents while respondent moved from Colorado to Florida. At that time, it was alleged that the children and grandparents had resided in a motel for two months before moving to a home with fire damage that also lacked electricity, running water, and appliances. Further, it was alleged that the grandparents were engaging in drug use, and it was unclear if the drugs were accessible to the children. During the investigation into the allegations, the grandparents tested positive for illegal substances and reported they could no longer care for the children. Respondent-mother was advised to pick up the children or identify appropriate caregivers and failed to do so.
Respondent-mother attended the preliminary hearing by telephone and although she was represented by counsel, she was identified as a nonrespondent with respect to the allegations. However, the children were found to be without proper care and custody and were placed with DHHS. An additional hearing was scheduled for September 2018, but DHHS was given discretion to return the children to respondent-mother if she presented herself in Michigan. However, before respondent-mother presented herself in Michigan, DHHS filed an amended petition requesting removal of the children from respondents. In support of the petition, DHHS documented numerous statements made by the children, which included disclosures of drug use, respondent-father hitting the children, and CTE and WJE reporting that "they were scared of their parents." The children also reported that respondent-father had a gun, and DHHS noted that respondent-father had been convicted of being a felon in possession of a gun and domestic violence in Colorado after he threatened to shoot respondent-mother in the face. The LGAL expressed concerns that, inter alia, respondent-mother left the children with people who were abusing drugs and lacked appropriate housing, and she remained with respondent-father despite the children's reported fear of respondent-father. Thereafter, DHHS advised respondent-mother that she could visit the children but they would not be returned to her care.
After several adjournments as a result of funerals, respondent-mother's inability to be present in the courtroom, changes in counsel, and delays caused by jury trial scheduling, a three-day adjudicative jury trial as to respondent-mother was held in late September 2019, and into October 1, 2019. During the trial, the jury heard testimony from one of the original Children's Protective Services (CPS) investigators, two foster care workers who had worked on the case, CTE, and respondent-mother. The jury ultimately concluded that petitioner had proven by a preponderance of the evidence that the children were subject to substantial risk of harm to their mental well-being. Thereafter, the court took jurisdiction over the children.
On appeal respondent first argues that her due-process rights were violated by the children's removal while she was a nonrespondent. This argument is unavailing.
Whether child protective proceedings complied with a parent's right to due process presents a question of constitutional law, which this Court reviews de novo. In re Sanders, 495 Mich 394, 403-404; 852 NW2d 524 (2014). "It is well established that parents have a significant interest in the companionship, care, custody, and management of their children. This interest has been characterized as an element of liberty to be protected by due process." In re Brock, 442 Mich 101, 109; 499 NW2d 752 (1993) (quotation marks and citation omitted). "Parents have a due process liberty interest in caring for their children." In re VanDalen, 293 Mich App 120, 132; 809 NW2d 412 (2011). Procedural due process requires that a party be provided notice of the nature of the proceeding and an opportunity to be heard by an impartial decision-maker at a meaningful time and in a meaningful manner. In re TK, 306 Mich App 698, 706; 859 NW2d 208 (2014). The substantive element of due process prohibits arbitrary deprivation of protected interests. Id.
When a child is in protective custody, the court must commence a preliminary hearing within 24 hours, excluding Sundays and holidays, unless for good cause shown. Otherwise, the child must be released. MCR 3.965(A)(1). If the child is not released, the trial court must take evidence, unless waived, to establish the criteria for removal. MCR 3.965(C)(1). In relevant part, the court may order placement of a child in 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 risk as described in subdivision (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).]
Additionally, when the petitioner alleged that a parent, guardian, custodian, nonparent adult, or other person residing in the child's home abused the child, the court may "not leave the child in or return the child to the child's home . . . unless the court finds that the conditions of custody at the placement and with the individual with whom the child is placed are adequate to safeguard the child from the risk of harm to the child's life, physical health, or mental well-being." MCL 712A.13a(5). When the child has been placed with someone other than his or her parents, the court must find whether "it is contrary to the welfare of the child to remain at home and the reasons supporting that finding." MCR 3.965(C)(3). In making the findings, the court may rely on the petition's allegations, if those allegations possessed adequate indicia of reliability. See MCR 3.965(C)(3). Moreover, MCR 3.965(11) specifically allows the court to address the children's placement when necessary, pending the completion of the preliminary hearing, "to assure the immediate safety of the child[ren]."
In this case, the children were originally presented to DHHS by their maternal grandparents, who were unable to provide suitable housing for the children. At that time, the children's parents were not available because of their relocation to Florida. Despite reasonable efforts to contact respondents for alternative placement, no alternative arrangements were identified. Accordingly, there is no question that the children needed placement on an immediate basis to avoid homelessness.
Respondent-mother attended via telephone and was represented by counsel during the initial preliminary hearing, which was held within 24 hours of the filing of the initial complaint. At that time, she did not dispute that the children needed to be removed and placed under the care and custody of DHHS. Ultimately, based on the allegations, the referee concluded that the children lacked proper care and custody and were at risk of harm. The trial court ultimately ordered that the children would be placed under the care and custody of DHHS and granted DHHS the discretion to return the children to respondent-mother but also proceeded in scheduling a contested preliminary hearing to address the future of the children. Accordingly, we find no indication that respondent was prejudiced by any actions by the trial court in removing the children. Rather, it was respondent's relocation and inability to pick up the children immediately that resulted in the court's initial order granting removal of the children and placement with DHHS.
Nonetheless, respondent-mother argues that she was subsequently wrongfully denied the ability to pick up the children. This argument also lacks merit.
Respondent-mother relies on In re Sanders, 495 Mich 394, for the premise that a nonrespondent parent has the right to take custody of their child and take them home without court intervention. However, this case is distinguishable from Sanders. Sanders involved a challenge to the one-parent doctrine, which allowed the court to enter dispositional orders restricting a non-adjudicated parent's rights to direct the care and custody of his or her children. Id. at 413. That is not the case here. Rather, in this case, respondent-mother did not dispute at the first preliminary hearing that the children needed care through DHHS at the time of their initial removal. As noted above, respondents' inability to provide for the immediate care and custody of the children necessitated the children's placement through DHHS.
Moreover, Sanders did not address any of the considerations for when removal of the children from their parents' home is necessary. Instead, Sanders clearly states, "When the state is concerned that neither parent should be entrusted with the care and custody of their children, the state has the authority—and the responsibility—to protect the children's safety and well-being by seeking an adjudication against both parents." Id. at 421-422.
In that regard, it is undisputed that DHHS sought adjudication against both parents in this case. While respondents were not initially considered respondents to the action at the time of the first preliminary hearing, the record clearly supports a conclusion that additional investigations led to concerns that respondents could not be entrusted with the children. Thereafter, and while the children continued to be in the care and custody of DHHS, DHHS exercised its discretion in deciding not to pursue returning the children to respondents and filed a petition that was authorized at the subsequent preliminary hearing. At all these times, respondent-mother was in attendance at the hearings and was represented by counsel.
However, aside from arguing that she "could have picked the children up as early as September 3, 2018," respondent-mother presented no evidence that she ever presented herself in Michigan to do so. She further states that DHHS "had no right" to deny her access to the children. Meanwhile, at trial respondent-mother acknowledged that she was offered visitation with the children if she arrived in Michigan before the hearing. Accordingly, respondent-mother's argument that she was denied access is without merit. Moreover, respondent-mother's assertions regarding a due-process violation are nothing more than conclusory statements that are unsupported by any authority and fully disregard the trial court's order granting DHHS discretion over the return of the children. In sum, respondent-mother fails to show how her due-process rights were violated by DHHS's exercise of discretion. This Court is not required to unravel and elaborate on respondent's arguments and may deem the argument waived. People v Cameron, 319 Mich App 215, 232; 900 NW2d 658 (2017).
Respondent-mother also argues that the evidence at trial did not support the jury's verdict. We disagree.
This Court reviews challenges to the court's exercise of jurisdiction for clear error. 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." Id. at 296-297. This Court must give deference to the jurors' findings based on their first-hand ability to assess witness credibility. See In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
"In Michigan, child protective proceedings comprise two phases: the adjudicative phase and the dispositional phase." Sanders, 495 Mich at 404. The court determines whether to take jurisdiction of the child during the adjudicative phase; once the court has jurisdiction, it determines during the dispositional phase what course of action will ensure the child's safety and well-being. Id. The "fact-finding adjudication of an authorized petition to determine if the minor comes within the jurisdiction of the court" is called the "trial." MCR 3.903(A)(27). The term "trial" includes a "specific adjudication of a parent's unfitness," which subjects the parent to "the dispositional authority of the court." MCR 3.903(A)(27).
"To properly exercise jurisdiction, the trial court must find that a statutory basis for jurisdiction exists. Jurisdiction must be established by a preponderance of the evidence." BZ, 264 Mich App at 295 (citation omitted). During the adjudicative phase, in which jurisdiction is determined, the rules of evidence apply, and legally admissible evidence is required. In re AMAC, 269 Mich App 533, 536-537; 711 NW2d 426 (2006).
In relevant part, MCL 712A.2(b) provides that the family division of circuit court has 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. . . .In cases with multiple children, the doctrine of anticipatory neglect may apply to confer jurisdiction. BZ, 264 Mich App at 296. "The doctrine of anticipatory neglect recognizes that [h]ow a parent treats one child is certainly probative of how that parent may treat other children." In re AH, 245 Mich App 77, 84; 627 NW2d 33 (2001) (quotation marks and citation omitted; alteration in original).
* * *
(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 . . . [MCL 712A.2(b).]
In viewing the evidence presented at trial, we discern no ground to interfere with the jury's conclusion that grounds to assume jurisdiction over the children were proven by a preponderance of the evidence under MCL 712A.2(b)(1). CTE unambiguously testified about several incidents that occurred between respondents and between respondent-father and the children. More specifically, CTE testified about his fear of respondent-father, and his concerns for himself, his siblings, and respondent-mother if respondent-father was living in the same home. Further, while respondent-mother expressed her desire to have the children returned to her, she also acknowledged that she alone could not stop respondent-father from making contact with BC, despite a court order. Respondent-mother also did not unequivocally state that she was prepared to separate from respondent-father for the children's safety. Rather, despite acknowledging CTE's testimony, respondent-mother dismissed it as "coached," and she indicated that she was willing to leave respondent-father only "if necessary."
Meanwhile, the record supports a conclusion that respondent-mother had repeatedly stayed with respondent-father despite his history of violence, the children's reasonable fear of respondent-father, and suspicions that he abused WJE. Undoubtedly, future incidents of violence to the children or in their presence had the potential to affect the children's emotional well-being. Furthermore, respondent-mother elected to place her children, albeit perhaps temporarily, with persons who had substance abuse issues and no proper housing. Given these circumstances, the jury could reasonably conclude that respondent-mother lacked the present ability to protect the children and needed to participate in reunification services before she could safely parent the children in a fit home where the children did not have to fear respondent-father. Additional services may help respondent-mother establish such an environment. In the meantime, however, the evidence supported the assumption of jurisdiction so that the trial court could monitor respondent-mother's progress.
Respondent-mother further posits that the trial court erred by admitting a personal protection order (PPO) granted in favor of the children's maternal grandmother against respondent-father during her adjudicative trial because the evidence was highly prejudicial, was cumulative, and ultimately allowed the jury to reach a conclusion about the case based on the perception that respondent-father is a violent man. We disagree.
This Court reviews the trial court's evidentiary rulings for an abuse of discretion. The trial court abuses its discretion when its decision falls outside the range of principled outcomes. In re Jones, 286 Mich App 126, 130; 777 NW2d 728 (2009). "This Court, however, will not reverse on the basis of an evidentiary error unless the court's ruling affected a party's substantial rights." In re Caldwell, 228 Mich App 116, 123; 576 NW2d 724 (1998).
As noted above, during the adjudicative phase, in which jurisdiction is determined, the rules of evidence apply, and legally admissible evidence is required. AMAC, 269 Mich App at 536-537. Generally, all relevant evidence is admissible, and irrelevant evidence is not. MRE 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. Under this definition, evidence is admissible if it helps shed light on any material point. People v Murphy (On Remand), 282 Mich App 571, 580; 766 NW2d 303 (2009).
Relevance involves two elements: materiality and probative value. See People v Henry, 315 Mich App 130, 144; 889 NW2d 1 (2016). A material fact is one that falls within the range of litigated matters in controversy. See People v Sabin (After Remand), 463 Mich 43, 57; 614 NW2d 888 (2000). "Probative force is the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." People v Mills, 450 Mich 61, 68; 537 NW2d 909 (1995) (quotation marks and citation omitted), mod 450 Mich 1212 (1995). The proponent of the evidence bears the burden of establishing its relevance and admissibility. Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010).
Even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. MRE 403. "Unfair prejudice" does not mean "damaging." People v Mills, 450 Mich 61, 75; 537 NW2d 909, mod 450 Mich 1212 (1995). Unfair prejudice exists when there is a tendency that minimally probative evidence will be given undueor preemptive weight by the jury, or when it would be inequitable to allow use of the evidence. People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008).
In this case, the trial court admitted the PPO despite counsel's objection on the basis that the PPO was relevant to issues at hand. The PPO was material to the various allegations within the petition because while respondent-mother argued that she never abused or neglected the children, the allegations suggested that she failed to protect the children from harm. Respondent-mother's choice to continue to reside with respondent-father despite knowledge of the allegations against him and knowledge of her children's fear of respondent-father was very much an essential issue to consider in regard to the children's safety. To the extent that the PPO showed that continued relationship, it was relevant to the case. Further, while there was significant testimony regarding respondent-father's violence toward the children and respondent-mother by CTE, respondent-mother denied the same. Therefore, the PPO also served to show that despite respondent-mother's testimony, respondent-father continue to be a threat to the children and had not resolved his issues. Lastly, as petitioner points out, the PPO had significant probative value and the potential of being unfairly prejudicial to respondent-father; however, given the circumstances of the case, the prejudice to respondent-mother was not outweighed by the probative value of the evidence. Accordingly, we find no support for the proposition that the admission of the PPO was an outcome that fell outside the range of reasonable and principled outcomes.
Finally, even if the PPO were admitted erroneously admitted, in light of the substantial testimony that supported the trial court's assumption of jurisdiction, the error would have been harmless because the results of the trial would not have been different. In sum, there is no evidence that the admission of the PPO affected respondent-mother's substantial rights.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Deborah A. Servitto
/s/ James Robert Redford