Opinion
356853 356854
10-21-2021
In re A. WASNEY, Minor. In re C. WARD, Minor.
UNPUBLISHED
Genesee Circuit Court Family Division LC Nos. 21-137236-NA, 21-137237-NA
Before: Murray, C.J., and Jansen and Riordan, JJ.
PER CURIAM.
In these consolidated appeals, respondent-father appeals as of right the lower court orders authorizing child protective petitions with respect to the two minor children, AW and CW, and removing the children from his care. We affirm.
The mothers of the minor children are not respondents in this matter.
I. BACKGROUND
This case arises out of the alleged sexual abuse of respondent-father's daughter, AW, and his stepdaughter, AM. CW is the half-sibling of AW. The case began when child protective services received allegations that respondent-father had been sexually abusing his stepdaughter, AM, and AM disclosed in a forensic interview that respondent-father had been abusing her. AW was also forensically interviewed, and she initially denied having ever been sexually abused by respondent-father; however, in a subsequent forensic interview, AW disclosed that respondent-father had sexually abused her from when she was two years old until she was 12 years old. The Department of Health and Human Services (DHHS) filed a petition in which it requested that the court take jurisdiction over the minor children under MCL 712A.2(b)(1) (child subjected to substantial risk of harm) and (2) (unfit home environment). DHHS also sought removal of the children from respondent-father's home and termination of his parental rights at the initial disposition. Following a preliminary hearing, the court authorized the petition and removed the children. They were placed with their mothers.
II. DISCUSSION
This Court reviews de novo the trial court's interpretation and application of statutes and court rules. In re Sanders, 495 Mich. 394, 404; 852 N.W.2d 524 (2014). This Court reviews the factual findings underlying a legal issue for clear error, and a finding is clearly erroneous if a review of the record leaves this Court with a firm and definite conviction that a mistake was made. In re McCarrick/Lamoreaux, 307 Mich.App. 436, 463; 861 N.W.2d 303 (2014). "Further, regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Ellis, 294 Mich.App. 30, 33; 817 N.W.2d 111 (2011).
Respondent-father first argues that the trial court erred by authorizing the petition. We disagree.
When DHHS petitions the court to take jurisdiction in a child protection matter, "the trial court must hold a preliminary hearing and may authorize the filing of the petition upon a finding of probable cause that one or more of the allegations are true and could support the trial court's exercise of jurisdiction under MCL 712A.2(b)." In re Ferranti, 504 Mich. 1, 15; 934 N.W.2d 610 (2019); see also MCR 3.965(B)(12). MCL 712A.2 provides in relevant part:
The court has the following authority and jurisdiction:
* * *
(b) 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. . . .
* * *
(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 court did not clearly err by finding that there was probable cause to believe that AW and CW were subjected to a substantial risk of harm in respondent-father's care and that respondent-father's home was an unfit environment, so MCL 712A.2(b)(1) and (2) provided a basis for authorization of the petition. Allegations of sexual abuse of one child support findings of a substantial risk of harm and an unfit home environment for all of the children in the home. In this case, AW and her stepsister both disclosed in forensic interviews that they had been sexually abused by respondent-father. Accordingly, the court did not clearly err by finding probable cause to believe that respondent-father engaged in conduct falling within MCL 712A.2(b)(1) and (2).
Respondent-father's arguments pertain primarily to whether petitioner established the statutory bases for termination under MCL 712A.19b(3). These arguments are irrelevant to whether the court erred by authorizing the petition because doing so requires establishing the statutory grounds enumerated by MCL 712A.2(b). MCR 3.965(B)(12).
Respondent-father also argues that the court erred by removing the children from his custody. We disagree.
"At the preliminary hearing, the court must decide whether to authorize the filing of the petition and, if authorized, whether the child should remain in the home, be returned home, or be placed in foster care pending trial." In re Benavides, ___ Mich.App. ___, ___; ___ N.W.2d (2020) (Docket No. 352581); slip op at 3 (quotation marks and citation omitted). MCR 3.965(C) provides, in relevant part:
(2) The court may order placement of the child into foster case 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.See also MCL 712A.13a(9). To order removal of the minor child, 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)." Benavides, ___ Mich.App. at ___; slip op at 3.
As is discussed above, respondent-father's alleged sexual abuse of AW and AM created a substantial risk of harm to AW and CW. MCR 3.965(C)(2)(a). These allegations also provide a sufficient factual basis to establish that remaining in respondent-father's care would be contrary to the welfare of AW and CW. MCR 3.965(C)(2)(c); MCR 3.965(C)(3). Because this case is based on accusations of sexual abuse by respondent-father, separation from respondent-father was the only provision reasonably available to alleviate the risk of harm. MCR 3.965(C)(2)(b). Because of the severity of the allegations, the police investigation and the forensic interviews constituted reasonable efforts to avoid removal. MCR 3.965(C)(2)(d); MCR 3.965(C)(4). Finally, because the children were placed with their mothers and because no allegations have been raised against the mothers, the conditions were adequate to safeguard the children. MCR 3.965(C)(2)(d).
Lastly, respondent-father has waived any argument that his procedural rights were violated because he did not raise that argument in his statement of the questions presented and, other than a conclusory statement that the proper procedures were not followed, he failed to provide any support for such an argument. If an appellant fails to identify an issue in his statement of questions presented in his brief on appeal, he waives appellate review of that issue. MCR 7.212(C)(5); People v Fonville, 291 Mich.App. 363, 383; 804 N.W.2d 878 (2011). Moreover, "[a]n appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give issues cursory treatment with little or no citation of supporting authority." In re Warshefski, 331 Mich.App. 83, 87; 951 N.W.2d 90 (2020) (quotation marks and citation omitted).
Affirmed.