Opinion
No. 350559
05-28-2020
In re S. L. KORDUPEL, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Livingston Circuit Court Family Division
LC No. 19-015924-NA Before: RONAYNE KRAUSE, P.J., and SERVITTO and REDFORD, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order of adjudication, which held that statutory grounds existed to exercise jurisdiction over the minor child, SK, and its initial dispositional order, which held that the child would continue to be placed with petitioner, RB, pursuant to a fictive kin order. We affirm.
I. FACTS
Respondent's history with Children's Protective Services (CPS) dates back to 2008 and includes 16 referrals and six substantiated cases since 2013. In June 2015, the Wayne Circuit Court (Family Division) exercised jurisdiction over SK and her three siblings after respondent was found unconscious with a .48 blood alcohol content while caring for her children and the home was in a deplorable condition. SK was placed in foster care with RB, the petitioner in the present case for nearly 2½ years, beginning when she was just under two years old. During this time, respondent was provided services to address, in relevant part, severe substance abuse, untreated mental health issues, improper supervision, parenting skills, and housing. On October 31, 2016, the Department of Health and Human Services (DHHS) filed a termination petition because of respondent's lack of engagement in services. According to the DHHS caseworker who was assigned to the family from 2015 to 2017, at the time the petition was filed, respondent was in the process of being evicted from her home because of unpaid rent. She had participated in but failed to complete some of her counselling. She did, however, complete her individual therapy, and the therapist believed she benefitted from the therapy. Respondent had also completed parenting classes, but did not demonstrate benefit from the classes, and had lost her driver's license because of a driving under the influence conviction in August 2016. In addition, respondent had missed 61 out of 78 drug screens and had two known relapses, had overdosed on her mood stabilizer medication, and had missed 31 out of 70 parenting time visits. After the petition was filed, respondent entered a rehabilitation program at Positive Images. In September 2017, following two termination hearings, the Wayne Circuit Court returned the children to respondent, who was then living on the campus of her substance abuse treatment facility. DHHS monitored the case for nearly three months during reunification, and the case was closed in late November or December 2017.
SK's father was also a respondent in the case and did not actively participate in services.
Respondent moved out of the treatment facility on December 31, 2017, and moved with the children into her mother's house. By March 2018, respondent was homeless. Respondent's friend at that time placed an ad on Facebook looking for someone to temporarily care for respondent's children. TD, who knew respondent's friend, responded to the ad and spoke with respondent, and respondent's aunt thereafter took respondent's two boys to TD's house and dropped them off to stay with her. Neither respondent nor the boys had met TD before the boys were dropped off. SK was sent to live with RB, who had moved to Pennsylvania. Both respondent and SK's father provided paperwork to allow RB to take SK to Pennsylvania and petition for guardianship of SK. By June 2018, respondent, SK, and her two boys were living in the basement of WD, who respondent had met at a church that was providing services for homeless individuals. Respondent's other child eventually joined them in WD's basement.
WD observed that respondent was using alcohol in her home. On July 28, 2018, WD noticed before she went to bed that respondent appeared to be intoxicated. When WD awoke in the morning she discovered that respondent was not home. Later that morning, respondent's aunt came to pick up the children and informed WD that respondent had been arrested during the night after respondent tried to break into a home. The arresting officer testified that on July 28, 2018, he was dispatched to an address in Redford Township and encountered respondent sitting on the front steps of the location. The officer testified that respondent appeared to be under the influence of something, she was uncooperative, and she had to be forcibly lifted from the porch of the home as she struggled to get away from the officer. Respondent struck the officer in the face and kicked him in the groin. She could not be booked that night because of her erratic behavior. As respondent was being booked the following day, she told a detective that she did not remember the events of the previous night and that she relapsed after having been sober for a while. The detective interpreted her comments to mean that she had an addiction to alcohol. Respondent pleaded no contest to the felony charge of resisting and obstructing, second offense. As part of her sentence, respondent was ordered to participate in inpatient substance abuse treatment. Respondent's aunt dropped the boys and SK off at TD's house in late August 2018, and respondent entered the treatment facility as an inpatient on September 4, 2018, and remained there until November 2018. She did not visit the children from September 2018 through January 2019 and did not have telephone conversations with them, but she did speak to TD by phone during that time period.
On January 3, 2019, TD contacted RB after SK gave her a telephone number and asked her to call it. On January 4, 2019, TD told RB that she was "fostering" SK, that SK loved RB, and it made her sad that SK could not be with RB. TD explained that she and her husband were financially struggling to care for the children and that respondent had not provided them with her Bridge card to purchase food for the children for a lengthy period of time. TD testified that from September 2018 through January 2019, she had received a total of $50 from respondent. RB met with TD in Michigan on January 13, 2019. According to TD, RB told her she had an attorney, showed her some papers she had filed in Pennsylvania, and told TD she would be filing for guardianship of SK in Michigan. TD allowed RB to pick up SK from her on January 20, 2019. RB moved into her childhood home in Michigan in order to care for SK.
On January 23, 2019, RB filed a petition in Livingston County seeking guardianship of SK. CPS worker George Pecuch was assigned to do a home study on RB's home on February 1, 2019. During that process, he also received a CPS referral regarding allegations of sexual abuse of SK by respondent. Pecuch eventually located respondent at Positive Images during the week of February 4, 2019. It was apparent to Pecuch that respondent did not know that TD had sent SK to live with RB.
There had been prior allegations that respondent sexually abused two of her other children; CPS substantiated one of the children's allegations. --------
Respondent objected to RB's petition for guardianship of SK and indicated that she wanted SK placed with her aunt. However, a home study had not been completed on the aunt's home, and the aunt had been denied placement of the children during the 2015 Wayne County case. The court denied RB's petition for guardianship of SK on February 13, 2019. On February 14, 2019, respondent showed up at RB's home and removed SK. The same day, RB filed the petition in the present case. In relevant part, the petition requested that the trial court remove SK from the home, exercise jurisdiction over SK pursuant to MCL 712A.2(b)(1) and (2), and terminate respondent's parental rights pursuant to MCL 712A.19b(3)(a) (desertion), (b)(i) (sibling of the child suffered sexual abuse and there is a reasonable likelihood of injury or abuse in the foreseeable future), (g) (failure to provide proper care or custody), (j) (reasonable likelihood of harm if returned to parent), and (k)(i) (parent abused the child with abandonment) and (ii) (parent abused the child with criminal sexual conduct). The court authorized the petition and temporarily placed SK with RB under a fictive kin order. After an adjudication trial before a jury, the jury determined that one or more of the statutory grounds alleged in the petition were proven. The trial court determined that it was proper to exercise jurisdiction over SK pursuant to MCL 712A.2(b)(1) and (2).
II. ANALYSIS
A. RELEVANT EVIDENCE AT THE ADJUDICATION TRIAL
In a child protective proceeding, once the trial court authorizes the filing of a petition to exercise jurisdiction over a child, the adjudication phase of proceedings follows. In re Ferranti, 504 Mich 1, 15; 934 NW2d 610 (2019). The adjudication phase determines whether the court can exercise jurisdiction over the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders. Id. The trial court can exercise jurisdiction if the petitioner proves the allegations at a trial. Id.
A child comes under a trial court's jurisdiction and becomes a ward of the court when the fact-finder finds by a preponderance of the evidence that there is factual support to exercise jurisdiction under MCL 712A.2(b). See MCR 3.972(E); MCR 3.977(E)(2); In re AP, 283 Mich App 574, 593; 770 NW2d 403 (2009). MCL 712A.2(b) provides in relevant part that the family division of circuit court has:
[j]urisdiction 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. . . .
(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. . . .
The adjudicative phase of child protective proceedings is of "critical importance" because the adjudication divests a parent of their constitutional rights to parent a child and gives the state that authority instead. In re Ferranti, 504 Mich at 16. Thus, the procedures used in adjudicative hearings are designed to "protect the parents from the risk of erroneous deprivation of their parental rights." Id.
On appeal, respondent first argues that the trial court erred by admitting irrelevant evidence relating to SK's best interests because the evidence was not relevant to the only issue before the jury—that is, whether SK came within the statutory requirements of MCL 712A.2(b)(1) and (2). We disagree.
"A party opposing the admission of evidence must timely object at trial and specify the same ground for objection that it asserts on appeal." In re Weiss, 224 Mich App 37, 39; 568 NW2d 336 (1997); see also MRE 103(a)(1). Respondent did not object to the evidence at trial, nor did she argue that admission of the irrelevant evidence violated her right to a fair trial. Therefore, our review is limited to plain error affecting respondent's substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Id. at 9. MCR 3.902(A) further provides that in child protective proceedings, "[l]imitations on corrections of error are governed by MCR 2.613." MCR 2.613, in turn, outlines a harmless-error standard:
An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice. [MCR 2.613(A).]
When an adjudicative jury trial is held, the "jury should only be concerned with requisite statutory proofs contained in section 2 of chapter 12A as may be invoked in a proper petition. If proofs are permitted before the jury, bearing upon what disposition ought to be made, the error is patent." In re Mathers, 371 Mich 516, 532; 124 NW2d 878 (1963).
The Michigan Rules of Evidence apply in adjudication trials. See MCR 3.972(C)(1). "Relevance is the fundamental component of the law of evidence. Evidence that is irrelevant should not be admitted at trial. Evidence that is relevant should be admitted, unless barred by some other rule." In re Dearmon, 303 Mich App 684, 696; 847 NW2d 514 (2014), quoting 2 Jones, Evidence (7th ed), § 11:1, p 258 (quotation marks omitted). Relevant evidence is "evidence having 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.
Here, the testimony regarding RB's education, occupation, and financial ability to care for SK, as well as her knowledge of SK's likes and dislikes, her bond with SK, her capability to care for SK, and her feelings for SK, was not relevant to whether respondent was an unfit parent, and it was plain error for the court to admit the irrelevant evidence. The error, however, was harmless. MCR 2.613(A). The trial court's instructions clearly informed the jurors that their only task was to determine whether the petitioner proved one or more of the statutory grounds for termination. The trial court's instructions also clearly informed the jurors that they were "not to concern" themselves with what would happen to SK if they were to find that one or more statutory grounds for termination were proven, that if the court has jurisdiction over SK it would decide at a later time what to do, that jurisdiction over SK did not necessarily mean she would be removed from respondent's home, and that the court had many options available to it. Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors. People v Mullins, 322 Mich App 151, 173; 911 NW2d 201 (2017). Given the trial court's explicit instructions, respondent has failed to establish plain error affecting her substantial rights, Utrera, 281 Mich App at 8, and has failed to demonstrate that she was denied a fair trial by the admission of the irrelevant evidence.
B. HEARSAY EVIDENCE AT THE ADJUDICATION TRIAL
Respondent next argues that the trial court erred by admitting numerous instances of hearsay. Respondent did not object to the admission of the challenged evidence.
Respondent generally cites to relevant law regarding the admissibility of evidence at an adjudicative trial, and cites to the record for the alleged instances of hearsay, but she fails to state how each statement was hearsay other than stating that the declarant never testified at trial or that the declarant did not have personal knowledge of the testimony, or by simply announcing that the testimony was hearsay. She quotes the alleged instances of hearsay without analyzing any of the alleged instances in any detail, she fails to discuss whether trial counsel was pursuing a legitimate trial strategy, and she fails to explain how each statement prejudiced her. She also fails to present any analysis with respect to her claim that admission of the evidence was not harmless. Respondent's cursory analysis of this issue warrants the conclusion that respondent has abandoned the issue on appeal. People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2011).
Nonetheless, we have examined each alleged instance of hearsay and note that some of the evidence that respondent identifies as hearsay was not hearsay, because it was not offered to prove the truth of the matter asserted, People v Musser, 494 Mich 337, 350; 835 NW2d 319 (2013), was offered to show why an individual took certain action, People v Chambers, 277 Mich App 1, 11; 742 NW2d 610 (2007), was admissible under the business-records exception to the hearsay rule, MRE 803(6), or was duplicative of other admissible evidence. As to all her claims of inadmissible hearsay, we conclude that respondent has failed to demonstrate any plain error affecting her substantial rights. Utrera, 281 Mich App at 8.
C. STATUTORY GROUNDS FOR JURISDICTION
Lastly, respondent argues that the trial court erred by determining that SK came within the statutory requirements of MCL 712A.2(b)(1) and (2) after the adjudication trial. She contends that the evidence was not sufficient to meet the evidentiary burden for establishing jurisdiction. We disagree.
Before a trial court may exercise jurisdiction over a child in a child-protection proceeding, the petitioner must prove by a preponderance of the evidence the existence of one or more of the statutory grounds for jurisdiction alleged in the petition. In re Sanders, 495 Mich 394, 405; 852 NW2d 524 (2014). In this case, the trial court concluded that petitioner had proven the existence of statutory grounds under MCL 712A.2(b). The jury returned a verdict that "one or more of the statutory grounds alleged in the petition were proven." The trial court's order of adjudication indicates the following statutory grounds to exercise jurisdiction under MCL 712A.2(b)(1) and (2):
1. Failure to provide, when able to do so, support, education, medical, surgical, or other necessary care for health or morals.On appeal, respondent challenges only the second through fifth statutory grounds above to exercise jurisdiction. Respondent does not challenge the trial court's exercise of jurisdiction under the first statutory ground, which is contained in MCL 712A.2(b)(1). Because only one statutory ground to exercise jurisdiction must be established in order to exercise jurisdiction, Sanders, 495 Mich at 405, we need not decide whether jurisdiction was also proper under the remaining grounds in MCL 712A.2(b)(1) or (2). Nonetheless, we conclude that the trial court also properly exercised jurisdiction pursuant to the fourth ground above, which is also contained in MCL 712A.2(b)(1), because SK lacked proper custody or guardianship when respondent was arrested on July 28, 2018, and left SK in TD's care.
2. Substantial risk of harm to mental wellbeing.
3. Abandonment by parents.
4. Lack of proper custody or guardianship.
5. An unfit home environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Deborah A. Servitto
/s/ James Robert Redford