Opinion
No. 336450
07-25-2017
In re GUARDIANSHIP MONTGOMERY.
UNPUBLISHED Allegan Probate Court
LC No. 16-059926-GM Before: SAWYER, P.J., and HOEKSTRA and BECKERING, JJ. PER CURIAM.
In this guardianship dispute, petitioners, Charlene and Steven (Steve) Wooten, appeal as of right the trial court's order appointing Tobias Montgomery as the guardian of the minor child. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The Wootens are the child's maternal grandparents and Tobias is the child's paternal uncle. The child's parents, mother and father, never married, but they shared joint legal and physical custody of the child. In August 2016, mother died suddenly of an accidental drug overdose caused by a mix of both prescription and non-prescription drugs. At the time, father was incarcerated in another state. Two days after mother's death, the Wootens filed a petition for guardianship of the minor child. The court appointed the Department of Health and Human Services (DHHS) to investigate the proposed guardianship and to submit to the court a report that addressed the "best interests of the minor" factors listed in MCL 700.5101(a). After DHHS investigator Eric Rayl visited the Wooten home and spoke with Charlene, who expressed concern that father could take the child if a guardianship plan were not in place before the date set for the hearing on her petition, Rayl asked the court to grant a temporary guardianship. Accordingly, the court appointed the Wootens temporary guardians of the child until September 8, 2016. Tobias filed a petition for guardianship on September 1, 2016. Father supported Tobias's petition and contested the Wootens'.
The hearing on the competing petitions began on December 8, 2016, and continued on December 15, 2016. To determine whether the minor's welfare would be served by the appointment, the probate court utilized the best-interest factors outlined in MCL 700.5101(a), which provides as follows:
Notably, MCL 700.5213 does not explicitly require the probate court to utilize the best-interest factors. MCL 700.5213(2) requires that the appointment "serve the minor's welfare," and the purpose of the guardianship statutes involving minor children is to promote the best interests of the child, see Deschaine v St Germain, 256 Mich App 665, 671 n 9; 671 NW2d 79 (2003) (explaining that "the Child Custody Act of 1970 . . . and the guardianship statutes have the same purpose of promoting the best interests of children . . ."). See also generally In re Stockman, 71 Mich 180, 191; 38 NW 876 (1888) ("Who shall or may be appointed guardian is within the discretion of the court. . . . [A]nd as between those entitled the question to be determined in making the selection is and always should be what will be for the best interest of the ward under all the circumstances."). Thus, we perceive no error in the trial court utilizing the factors, and the parties raise no argument against such utilization.
(a) "Best interests of the minor" means the sum total of the following factors to be considered, evaluated, and determined by the court:
(i) The love, affection, and other emotional ties existing between the parties involved and the child.
(ii) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue educating and raising the child in the child's religion or creed, if any.
(iii) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(iv) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(v) The permanence, as a family unit, of the existing or proposed custodial home.
(vi) The moral fitness of the parties involved.
(vii) The mental and physical health of the parties involved.
(viii) The child's home, school, and community record.
(ix) The child's reasonable preference, if the court considers the child to be of sufficient age to express a preference.
(x) The party's willingness and ability to facilitate and encourage a close and continuing parent-child relationship between the child and his or her parent or parents.
(xi) Domestic violence regardless of whether the violence is directed against or witnessed by the child.
(xii) Any other factor considered by the court to be relevant to a particular dispute regarding termination of a guardianship, removal of a guardian, or parenting time.
The trial court issued a written opinion in which it found factors viii and ix irrelevant because of the child's young age. The court found that the child had a strong bond with the Wootens (factor i), but questioned whether "the bond is healthy and whether it is based on the needs of the child or the needs of Charlene." In support of its observation, the court cited testimony regarding how Charlene prohibited contact between the child and the child's parents in the months prior to mother's death, and father's allegation that Charlene "considers the child her own, even to the extent of stating that she gave birth to the child." The court further noted that the Wootens had not allowed Tobias to have contact with the child after mother's death until the court ordered the Wootens to give him a minimum of two hours of contact with the child per week. The court concluded that the behavior of the Wootens in isolating the child from other family members "diminishes the value of the bond that the child has with [the Wootens].
The trial court found that both parties had the capacity and disposition to give the child love, affection, and guidance (factor ii), and to provide the child with food, clothing, and other necessities (factor iii). Nevertheless, the court expressed "grave concern" with the "quality and appropriateness of the love, affection, and guidance provided" by the Wootens. The court observed that both adult children of the Wootens struggled with substance abuse, and opined that the Wootens knew about their children's struggles but did "little to nothing" to assist in their treatment and recovery. The court noted that Charlene gave conflicting testimony regarding her knowledge of mother's drug use, once stating that she was unaware of her use, and then stating that she gave mother prescription medication as instructed by the doctor, even though at one point she had denied that she went to the doctor's office with mother. Steve and father testified that Charlene had control of mother's prescriptions and gave them to her on a daily basis. The court deemed Charlene's testimony on this matter inconsistent and incredible. By contrast, it found credible the testimony of Tobias's 20-year-old son, Mason, who testified to a healthy upbringing in a shared-custody environment, and a positive relationship with his father.
Although the trial court acknowledged that the Wootens' residence was the only one that the child knew, it questioned the desirability of maintaining that continuity (factor iv). Specifically, the court questioned the "stability of [Charlene] in general[,]" noting her threatening behavior toward the child's paternal side of the family, and toward mother's ex-husband, Joshua Ellis (Josh). The court noted that, during child custody proceedings involving mother's and Josh's child, Charlene's behavior had resulted in Josh obtaining a personal protection order against Charlene. The court further noted that Charlene "acted in an inappropriate and obsessive manner towards that child as well." By contrast, the court noted that there were no "credible accusations of any kind regarding [Tobias's] ability to provide a satisfactory, stable environment for the child."
The trial court's view of Charlene's threatening behavior, false accusations against father, and inconsistent testimony weighed against the Wootens when it came to an assessment of their moral fitness (factor vi) and mental and physical health (factor vii). Regarding factor vii, the trial court opined that Charlene's "behaviors, including the use of threats, inconsistent testimony, and what appears to be an obsession with [the child], can be viewed as a mental health concern that remains untreated." The court noted that there was no credible testimony that Tobias lacked moral fitness or that his mental or physical health was in question.
As will be discussed below, Charlene posted a comment on father's Facebook page implying his culpability for mother's death.
In light of the Wooten's own testimony, the trial court found that they would not encourage a close continuing parent-child relationship with father or with father's side of the family (factor x). Tobias, on the other hand, the court deemed "willing to encourage a relationship between [the child] and [father], as well as with [the child's] half-sisters and other family members." The court found the testimony with regard to domestic violence offset by [father's] insistence that the child had not been present during any violence between him and mother (factor xi).
Thus, the trial court concluded that factors i, iii, v, and xi favored neither party, and factors ii, iv, vi, vii, and x to favored Tobias. The court also made findings under factor xii. The court noted that father supported Tobias's petition for guardianship, and said with regard to the testimony of Angie Cameruci, the child's therapist:
While the Court respects her professional opinion, the Court is cognizant of the fact that Ms. Cameruci has not heard any of the testimony that has been made available to this Court regarding the questionable behavior of the current custodians. In fact, Ms. Cameruci has only obtained information regarding the minor child and this case solely from the custodial grandparents. Ms. Cameruci testified that she presumes the information provided to her by [the Wootens] and DHHS is credible. Ms. Cameruci was told that the child witnessed domestic violence between [father] and [mother], which is not confirmed by any source other than [Charlene]. Ms. Carmeruci has not met [Tobias], nor witnessed [the child] in his care. The Court finds [Charlene] to be a poor source of credible information and therefore cannot rely on the recommendation of Ms. Cameruci.
Finally, the trial court expressed its suspicions about a document that Charlene submitted as part of her petition for guardianship. The document, allegedly signed by mother one month prior to her death, supposedly gave Charlene custody of the child. However, the court found that mother's signature on the document inconsistent with her signature on documents she had previously provided the court. Further, the court noted that, "[w]hen cross-examined regarding the veracity of document [sic] during the trial, [Charlene] was both uncooperative and evasive." Accordingly, the trial court found "the document unreliable and not a reflection of the wishes of the mother regarding custody of [the child]."
In light of the above factual findings, the trial court issued an order appointing Tobias guardian of the minor child, ordering that the child continue to receive therapy from her current child therapist, and setting a review date for July 13, 2017.
II. ANALYSIS
On appeal, the Wootens first argue that the trial court erred in finding that appointing Tobias as the guardian served the minor child's welfare and best interests. The gravamen of their argument is that the trial court erred by making findings of fact not supported by the record and by wrongly weighing the evidence. We disagree.
A. STANDARD OF REVIEW
We review a trial court's dispositional rulings for an abuse of discretion and the factual findings underlying its decision for clear error. In re Bibi Guardianship, 315 Mich App 323, 328; 890 NW2d 387 (2016). "A probate court abuses its discretion when it chooses an outcome outside the range of reasonable and principled outcomes," and its "finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made, even if there is evidence to support the finding." Id., 315 Mich App at 329 (quotation marks and citation omitted).
B. FACTUAL FINDINGS
The Wootens contend that the record evidence does not support the trial court's finding that Charlene accused father of killing mother and that she threatened Tobias and Joshua after the first day of the evidentiary hearing. They also argue that, although the court found that Tobias had not had an opportunity to bond with the child, there is no evidence that he sought such opportunity prior to his request to the court for visitation and no evidence that he asked but was denied more contact than the minimum two-hours per week. Further, the Wootens allege that the testimony was that Tobias and the child's paternal grandmother "rarely bothered to be involved in the child's life" until Tobias filed his guardianship petition.
The Wootens also point out that the court erroneously stated in its opinion that Steve found mother's body after she had overdosed and called Charlene before he called the police, when it was actually Steve Jr., who found mother's body. Although erroneous, the finding, in and of itself, does not require reversal of the trial court's decision. See MCR 5.001 (other rules of civil procedure apply in probate proceedings); MCR 2.613(A) (only error that is "inconsistent with substantial justice" merits reversing a lower court's decision in a civil case under the harmless error rule).
Review of the record reveals that the trial court's finding that Charlene accused father of killing mother is supported by Tobias's testimony about a comment Charlene posted on father's Facebook wall the day after mother died. Tobias testified that the comment said in effect: "I wish had done a background check on you earlier. See what you have done. She is dead now because of you and I hope you are all happy. You will never be able to beat her again." That one might interpret this statement as charging father with killing mother is evinced by Tobias's testimony that that is exactly how he interpreted it, and that it was not until four days after mother's death that he discovered father had not killed her because he had been incarcerated in Indiana at the time of her death. While it is true, as the Wootens argue, that the Facebook comment does not accuse father of physically killing mother, there is no doubt that it alleges father's culpability for her death. Thus, we conclude that the record supports the trial court's finding that Charlene accused father of killing mother.
The Wootens next contend that the trial court erred in finding that Charlene told Tobias that he would "burn in a lake of fire" after the first day of the evidentiary hearing. The Wootens arguably misconstrue the trial court's comment, which was that Charlene told Tobias "he would burn in a lake of fire and threatened his family while in the courthouse immediately after the first evidentiary hearing." The Wootens interpret the court's statement to indicate that Charlene made the "burn in the lake of fire" comment after the first day of the evidentiary hearing. However, one could also interpret the sentence to indicate that the comment and the threats are two separate events; the record supports this interpretation. Tobias testified that he called the police when Steve Jr., threatened his life three years before the events at issue, and that Charlene "posted on his wall that I'm - I'm a liar and that I am going to burn in a lake of fire for eternity. And God is going to do justice and that I am - that I will pay for it really soon." Then, on the second day of the evidentiary hearing, Tobias and Josh testified to threats they received after the first day of the hearing. When asked on direct examination why he thought he would be a better guardian than the Wootens, Tobias testified:
Well, I - I believe I am a better vessel, because I am not involved with the fight. My - my only obligation here is to [the child] and take [sic] care of [the child]. You know, there seems to be a big rift. Even at the courthouse last Thursday when they assaulted Josh in the parking lot, they are cussing and screaming. You know, they are - they are threatening my family, basically, in the hallway. I just don't see how that's a healthy environment to keep that kid around when there is - you know, especially in a courtroom, they can't - they can't behave themselves.Granted, Tobias does not specifically identify Charlene as the one who threatened his family in the hallway. Nevertheless, considering that Tobias was explaining why he would be a better guardian than "the Wootens," and given the record evidence of Charlene's animosity toward Tobias, we are not left with a definite and firm conviction that the finding at issue here was a mistake. However, we agree with the Wootens that the trial court's finding that Charlene threatened Josh after the first evidentiary hearing day was not supported by the record. Josh testified that he and his wife were going to their car after the hearing when a woman he identified as Rita Wooten approached them, brandishing an ice scraper and calling him names. Nevertheless, in light of the entire record, the trial court's error in identifying whom among the Wooten family assaulted Josh does not affect substantial justice, and, therefore, is harmless and does not require reversal of the trial court's decision. MCR 2.613(A).
The Wootens also contend that the record is devoid of evidence that Tobias asked them to allow him to visit the child before the court ordered weekly contact, and of evidence that Tobias sought to increase the amount of contact that the court ordered. Regardless of what may be missing from the record, what is in the record supports the trial court's finding that Tobias was denied an opportunity to bond with the child. Tobias testified that he had bonded with the child prior to mother's death, but was prohibited from seeing her after mother's death and father's incarceration. At the pretrial hearing, Tobias's counsel had to ask for visitation because Tobias had "been allowed a two hour visit with [the minor child] and after that, the door got slammed on him." On October 7, 2016, the trial court ordered that Tobias have at least a minimum of two hours a week of parenting time. At the conclusion of the first day of the evidentiary hearing, the minor child's lawyer-guardian ad litem indicated that he observed the minor child with the Wootens, but he noted that the current visitation schedule did not afford Tobias an opportunity to bring the minor child to see him. The minor child's lawyer-guardian ad litem requested flexibility with the visitation schedule, and the trial court commented, "Well, the Court ordered a minimum of two hours of parenting time, but unfortunately it appears that that's all that's been given. So I understand that problem." When asked when he usually saw the minor child, Tobias stated, "She allows from four to six on Wednesdays." The foregoing does not leave us with a definite and firm conviction that the trial court made a mistake in finding that Tobias was denied the opportunity to bond with the child.
Based on the foregoing, we conclude that, except for the erroneous findings identified above, we are not left with "a definite and firm conviction that a mistake has been made," Bibi, 315 Mich App at 32, and consequently, the trial court's factual findings are not clearly erroneous.
In their reply brief, the Wootens allege a due process violation based on the court's mention in its opinion of testimony to which the court sustained the Wootens' objection. They argue that the court's objection led them to believe that they did not have to defend against the evidence objected to, and that the court's reliance on the evidence in its opinion deprived them of due process. We first note that the Wootens did not raise this argument in their original brief, and may not raise in a reply brief. See Pontiac Food Ctr v Dep't of Community Health, 282 Mich App 331, 337 n 4; 766 NW2d 42 (2008) ("A party may not raise a new or additional argument in a reply brief."). Further, the argument is without merit. In its opinion, the court observed that "[a]s a result of [Charlene's actions throughout the child custody proceedings regarding the child of Josh and mother [], a personal protection order was granted against [Charlene]. [Charlene] acted in an inappropriate and obsessive manner towards that child as well." Josh testified that he had a PPO against Charlene and that he would "hate to see what happened to [his] child happen again to another child." Thus, the court's observation finds support in the testimony presented at the hearing. Moreover, the Wootens clearly were aware of accusations that Charlene's behavior toward the child at issue could be obsessive and that they inappropriately withheld the child from mother and father, and they defended against these accusations by arguing that they protected—not withheld—the child, and that father's testimony about Charlene's alleged obsessiveness was not credible. Accordingly, we find no error in the trial court's opinion with regard to this issue, and no deprivation of due process. --------
C. WEIGHING THE EVIDENCE
The Wootens next contend that the trial court erred when weighing the evidence. Specifically, they contend that the court did not properly consider that any withholding of the child from mother and father was for the protection of the child and on the advice of the Allegan County Sheriff's Department. The Wootens also contend that the trial court failed to cite and consider the recommendations of the DHHS investigator, the lawyer-guardian ad litem, and Cameruci that the Wootens should retain guardianship of the child. They argue in addition that the trial court did not properly consider that Tobias would not be able to give the child the constant attention she received from Charlene and, contrary to the recommendations of the child's therapist, would have to use others to provide care while he was at work. Further, the Wootens contend that the trial court misjudged father's credibility, particularly as it pertained to his testimony that Charlene was obsessed with the child.
Regarding the trial court's alleged failure to cite certain testimony in its analysis of the best interest factors, even if a court is required to state its findings of fact and conclusions of law under each best-interest factor, it is not required to include in its findings and conclusions "every piece of evidence entered and argument raised by the parties." See MacIntyre v MacIntyre, 267 Mich App 449, 452; 705 NW2d 144 (2005) (referring to a mandatory best-interest analysis under the Child Custody Act, MCL 722.21 et seq.). Moreover, by alleging that the trial court failed to cite or consider certain evidence, the Wootens are essentially urging this Court to reweigh the evidence and re-evaluate credibility on appeal. This we decline to do. See In re TK, 306 Mich App 698, 710; 859 NW2d (2014) ("This Court gives deference to a probate court's special opportunity to court the weight of the evidence and the credibility of the witnesses who appear before it.").
Even if we were inclined to revisit the trial court's decisions regarding credibility and the weight of the evidence, we would find no basis to disturb the court's ultimate ruling. The Wootens contend that the trial court failed to consider that Cameruci, the DHHS investigator, and the lawyer-guardian ad litem recommended that the court appoint them as guardians. However, the record shows that the DHHS investigator and the guardian ad litem based their recommendations in no small part on Cameruci's testimony, which, as indicated above, the court addressed in some detail. Nothing in the record leaves us with a definite and firm conviction that the court's finding with regard to Cameruci's testimony was erroneous. From our review of the record, it does appear that the basis of Cameruci's assessment was information provided by the Wootens and that her observations were colored by their interpretive lens. Further, the trial court heard testimony contradicting Cameruci's assessment of the potential harm to the child's mental health if "forced" visits with Tobias continued. In addition, Cameruci acknowledged that she had never seen the child with Tobias, nor did she observe the child immediately after returning from a visit with Tobias. Thus, determining what weight to give Cameruci's testimony and recommendations, which were based on her assessments and the information provided by the Wootens, required the court to make credibility determinations of the witnesses who appeared before it. On the record before us, we see no reason to replace the trial court's credibility determinations with our own. In re TK, 306 Mich App at 710. Likewise, we defer to the trial court's credibility determinations with respect to the Wootens' testimony that they kept the child from mother or father for the child's protection and father's testimony regarding Charlene's alleged obsessiveness.
Upon review of the record, we conclude that the trial court's findings of fact were not clearly erroneous and the trial court did not abuse its discretion in appointing Tobias as the child's guardian.
D. MCL 722.27(1)(C)
Lastly, the Wootens argue that the trial court committed clear legal error by failing to consider the requirements of MCL 722.27(1)(c), which is part of the Child Custody Act, MCL 722.21 et seq. They contend that the Child Custody Act and the guardianship statutes are in pari materia because they have the same goal of promoting the best interests of children and, therefore, should be read and applied as constituting one law. In support of their position, the Wootens cite Deschaine v St. Germain, 256 Mich App 665, 670, n 9; 671 NW2d 79 (2003) ("Because the Child Custody Act of 1970 . . . and the guardianship statutes have the same purpose of promoting the best interests of children . . . the two statutes [referring to MCL 722.31(1) and MCL 700.5204] may be interpreted consistent with each other, or in pari materia."). They argue that since the trial court's order appointing Tobias as guardian effectively changed an existing custody order, the trial court committed clear legal error by not considering whether there was an established custodial environment and, if so, whether there was clear and convincing evidence that a change was in the best interests of the child. MCL 722.27(1)(c). The Wootens acknowledge that this Court recently stated in In re Bibi, 315 Mich App at 336 (emphasis added), that "MCL 722.27(1)(c) does not apply to guardianship decisions by the probate court; it applies to custody actions, orders, and judgments" in the circuit court. But they attempt to distinguish In re Bibi from the instant by noting that In re Bibi did not involve an existing custody order, while there was one here, as the minor child's parents had previously been awarded joint custody. And thus, they contend, their position is a logical "extension of the law discussed in In re Bibi." The Wooten's argument is, at a minimum, strained. Moreover, they admit that this issue is unpreserved, but urge us to decide it now as a matter of law. However, we are only obligated to review issues that are properly raised and preserved and, therefore, we need not consider issues first raised on appeal. Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). Because the parties neither raised nor briefed the issue before the trial court, we decline to consider it now.
Affirmed.
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
/s/ Jane M. Beckering