Opinion
369745
06-20-2024
In re P. GILLARD, Minor.
UNPUBLISHED
Genesee Circuit Court Family Division LC No. 19-136151-NA
Before: MALDONADO, P.J., and K. F. KELLY and REDFORD, JJ.
PER CURIAM
Respondent-mother appeals as of right the trial court's order removing the minor child, PG, from respondent's custody and care under MCL 712A.13a(9) and MCR 3.965(C)(2). We affirm.
The putative father of PG was also involved in the lower court proceedings. However, only respondent appeals the trial court's order.
I. FACTUAL BACKGROUND
Respondent has a history with Children's Protective Services dating back to 2019, involving instances of domestic violence, substance abuse, and physical abuse. Respondent has five older children, some of whom tested positive for substances at birth. The older children were already removed from respondent's care and custody at the time of the removal hearing.
Termination proceedings involving these children are pending. These children are not involved in this appeal.
In January 2024, PG was born. Medical tests revealed the child was positive for amphetamines and methamphetamines. He presented mild symptoms of withdrawal that did not require medication treatment. PG stayed in the hospital for five days after his birth. Respondent only visited PG for a couple hours during his hospital stay. In the days after PG's birth, petitioner, the Department of Health and Human Services (DHHS), made multiple attempts to meet with respondent. Respondent was not cooperative with the DHHS.
The DHHS petitioned for PG's removal. On January 8, 2024, the trial court issued an ex parte order removing PG from respondent's care. The removal order stated that PG was at substantial risk of harm, or his surroundings presented an imminent risk of harm, and that immediate removal was necessary to protect his health and safety. The removal order also stated that circumstances warranted issuing the removal order, and that there was no other available remedy to protect PG's welfare. The order found it was contrary to PG's welfare to remain in respondent's care because of concerns regarding substance abuse and domestic violence, as well as the fact that respondent's other children were born substance-positive and PG tested substance-positive at birth. Likewise, the order found that respondent refused to submit to drug screening and did not produce a prescription to account for PG's positive drug screening. The removal order also stated that reasonable efforts were made to prevent removal, including attempts to meet with respondent in-person and over the phone. The order noted that a team decision making meeting was requested, Early-On services would be referred, and resources would be provided in the future. However, the family was not cooperating with the DHHS at the time.
A preliminary hearing was held, wherein DHHS caseworker Anthony Paxton testified regarding the contents of the petition. He added that a test pending when the petition was made showed that PG tested positive for methamphetamine at birth. Respondent reported that she took Suboxone and presented a prescription for Adipex that purportedly accounted for the positive amphetamines test. However, respondent refused to sign a release for the caseworker to contact her doctor for verification. Paxton also testified that he inspected the family's house, which was under construction, but could potentially be adequate housing for PG.
The referee entered an order removing PG from respondent and the putative father. The referee found that whether PG's withdrawal symptoms could be accounted for by the prescription was a question of fact to be determined at a trial. Otherwise, the referee found that respondent had a history of substance abuse issues and faced termination for noncompliance with service plans for her other children. Additionally, the referee found that PG tested positive for substances and showed symptoms of withdrawal. The referee found that respondent's housing was suitable. The referee concluded that having another baby test positive and being placed in the care of a mother under the influence of drugs placed him at a risk of harm. The referee incorporated the contrary to the welfare findings and reasonable efforts findings from the ex parte order into the removal order. Likewise, the referee held that no provision or service or alternative to removal was reasonably available to safeguard PG from a risk of harm. The referee recommended relative placement if available, and foster care placement if a relative was not available. The trial court adopted the referee's order. This appeal followed.
II. STANDARD OF REVIEW
We review a trial court's findings of fact for clear error. In re Benavides, 334 Mich.App. 162, 167; 964 N.W.2d 108 (2020). A finding is only clearly erroneous if an appellate court is "left with a firm and definite conviction that a mistake has been made." In re Williams, 333 Mich.App. 172, 178; 958 N.W.2d 629 (2020). "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., quoting MCR 2.613(A). We review the interpretation and application of statutes and court rules de novo. In re Ferranti, 504 Mich. 1, 14; 934 N.W.2d 610 (2019).
III. ANALYSIS
Respondent argues that the trial court erred by failing to articulate its factual findings regarding removal factors MCL 712A.13a(9)(b), (c), and (e). Respondent further argues that it was not contrary to PG's welfare to remain in her care and that the trial court erred by finding that reasonable efforts were made to prevent removal. We disagree because the trial court provided a sufficient record for appellate review and the trial court's findings were not clearly erroneous.
Because respondent does not challenge MCL 712A.13a(9)(a) and (d), we do not address these factors.
The trial court ordered PG's placement into foster care pursuant to MCL 712A.13a(9) and MCR 3.965(C)(2). MCL 712A.13a(9) states as follows:
(9) The court may order placement of the child in 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 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.
MCR 3.965(C)(2) is substantively similar to MCL 712A.13a(9). "A trial court is generally not obligated to articulate extensive findings regarding every conceivable detail." In re Williams, 333 Mich.App. at 183. "However, when 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.
Respondent argues that the trial court failed to make any findings under MCL 712A.13a(9)(b) that no provision or service or other arrangement was available except removal to adequately safeguard the child from risk. We disagree.
The trial court incorporated the ex parte order's finding that the DHHS attempted to provide services to respondent before advancing to removal; however, respondent refused contact with the DHHS. Likewise, the trial court incorporated the ex parte order's finding that respondent refused to participate in drug screenings or provide consent for the DHHS to verify her prescriptions with her doctor. Overall, the record indicates that respondent had a history of substance abuse and refused to participate in services. This record shows that the provision of services or other measures short of removal could not safeguard PG because respondent refused to participate in those services or engage with the DHHS. Therefore, the trial court's finding that no provision or service or other arrangement was available except removal to safeguard PG was not erroneous.
Respondent argues that the trial court erred by failing to make a finding whether it was contrary to PG's welfare to remain in her home under MCL 712A.13a(9)(c). Alternatively, respondent argues that if sufficient findings were made, the findings were erroneous because respondent's housing was adequate to meet PG's needs and the findings could not be premised on drug use alone. We disagree that the trial court did not make contrary to the welfare findings or that those findings were erroneous.
First, the trial court made findings under MCL 712A.13a(9)(c) that continuing PG's residence in the home was contrary to his welfare supported by respondent's history of substance abuse and domestic violence, PG testing positive for amphetamine and methamphetamine at birth, and respondent having multiple other children removed from her care, some of whom also tested positive for substances at birth. Notably, the trial court's contrary to the welfare decision did not include a finding that respondent lacked adequate housing. To the contrary, the trial court acknowledged that respondent's home was a work-in-progress, and stated that was not an issue. Further, respondent's contention that the trial court's decision was supported by respondent's drug use alone is rebutted by the record. Accordingly, the facts support the trial court's finding that allowing PG to continue living with respondent was contrary to his welfare.
Respondent argues that the trial court failed to make any findings under MCL 712A.13a(9)(e) that conditions away from the parent were adequate to safeguard the child's welfare. We disagree.
The trial court concluded that the conditions of custody away from respondent were adequate to safeguard PG's welfare. Although PG was not yet placed at the time of the hearing, the trial court ordered that PG be placed with a relative and, if no suitable relatives were found, that PG be placed in a foster care placement. The record supports that, at the time of the hearing, no relative placement was available because the relative that was a candidate for placement refused to take in PG. However, by ordering placement into a licensed foster care placement, the trial court ensured that PG was placed in conditions adequate to safeguard his health and welfare. Accordingly, the trial court's finding that conditions away from respondent were adequate to safeguard PG's welfare were not erroneous.
Although respondent does not argue that findings were not made under MCL 712A.13a(9)(d), respondent argues that the trial court's reasonable efforts findings were clearly erroneous because respondent was not offered voluntary in-home services. We disagree.
The ex parte order held that the respondent refused to participate in the reasonable efforts put forth by the DHHS. The trial court incorporated the ex parte order's reasonable efforts findings into the removal order. The DHHS made multiple attempts to contact respondent between the date of PG's birth and the date of the removal petition's filing. Respondent continuously avoided meeting with the DHHS. She did not allow the DHHS access to her home until hours before the preliminary hearing. The DHHS had no reason to believe in-home services would be a viable option because of respondent's lack of cooperation. The trial court did not err by finding reasonable efforts were made.
Although the trial court, in the ex parte order and preliminary hearing, did not provide extensive findings, detailing every conceivable reason why MCL 712A.13a(9)(b), (c), and (e) were met. This was not required. See In re Williams, 333 Mich.App. at 183. The trial court made a sufficient record regarding each factor of MCL 712A.13a(9) for this Court to conduct a meaningful review. Id. The trial court's factual findings justified removing PG from respondent's care.
Affirmed.
MALDONADO, P.J. (dissenting).
I disagree with the majority's conclusion that the trial court made adequate factual findings in support of its decision to remove PG from respondent-mother's care. Accordingly, I dissent.
I. LEGAL BACKGROUND
This Court reviews de novo the trial court's interpretation and application of statutes and court rule. In re Sanders, 495 Mich. 394, 403; 852 N.W.2d 524 (2014).
The removal of children from their parents and placement in foster care is governed both by statute and court rule. MCL 712A.13a(9) provides:
The court may order placement of the child in 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 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.
MCR 3.965(C)(2) provides:
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.
Further, the trial court "must make explicit findings that it is contrary to the welfare of the child to remain at home, MCR 3.965(C)(3), and reasonable efforts to prevent the removal of the child have been made or that reasonable efforts to prevent removal are not required, MCR 3.965(C)(4)." In re Benavides, 334 Mich.App. 162, 168; 964 N.W.2d 108 (2020) (quotation marks omitted).
II. THE COURT'S FINDINGS
While trial courts are "generally not obligated to articulate extensive findings regarding every conceivable detail," if "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." In re Williams, 333 Mich.App. 172, 183; 958 N.W.2d 629 (2020). In this case, the court's findings were as follows:
So that my concern about that prescription, I don't know whether it would cause this baby to have the withdrawal symptoms that the baby had those are issues for the trier of fact to determine at a trial, not at a preliminary hearing. What I do know is that mother had prior substance and her other children are in her care and she's facing termination for non-compliance with respect to those children and then she has another baby who tests positive for specific-certain drugs. Whether she was prescribed them or not or what have you, those are issues I believe for the trier of fact to decide whether or not this was because of some illegal drug use or what have you. But, in terms of a newborn infant going into a home that's not yet
completed that's okay, you don't have to have a perfect house to take care of a child, but to be in a place where you have other children who came into care because one of the issues was substance abuse and then to have another baby test positive with a score of three, but didn't need medication, but tested positive and has some withdrawal symptoms, that is a red flag for me. And-and to have certainly a newborn baby, who is being cared for by a mother who's under the influence of drugs is an issue; it places the baby at a risk of harm.
Okay. So I'm going to find that reasonable efforts shall be made to preserve or reunify the family to make it possible for the child to return home. Custody of the child with the mother presents a substantial risk of harm to the child's life, physical health[,] and mental wellbeing. No provision of service or otherwise except removal is reasonable available to adequately safeguard the child from the risk of harm to the child's life, physical health[,] and mental wellbeing.
Conditions of custody-placement where the child will be placed will protect the child from the risk of harm.
There are multiple problems with the court's findings that lead me to conclude that they do not enable us to conduct meaningful review. First, the court simply articulated a conclusory list of the factors instead of explaining how each requirement was met. Second, even if we were to parse through the factual findings preceding the conclusory statements, these are not adequate to satisfy the statute's and court rule's requirements. Rather, these findings only seem to address the requirement that placement with the parent presents a substantial risk of harm. MCL 712A.13a(9)(a); MCR 3.965(C)(2)(a). The court did not make contrary to the welfare findings, and the court made no mention of the efforts made to prevent removal. MCL 712A.13a(9)(d); MCR 3.965(C)(2)(d), (C)(3); Benavides, 334 Mich.App. at 168. Finally, the court engaged in no discussion of the child's foster placement aside from the conclusory statement that the child's needs would be safeguarded. MCL 712A.13a(9)(e); MCR 3.965(C)(2)(e). Taking a child away a parent is a serious deprivation of the rights of both the parent and, more importantly, the child. The trial court's findings simply were not good enough to support such a major invasion of respondent-mother's and PG's rights.
Therefore, I would vacate the order removing PG from respondent-mother's care and remand this case for additional fact-finding.