Opinion
355624
09-16-2021
WILLIAM NICHOLS, Plaintiff-Appellee, v. SHANEESE YAETTA-FRANCHELLA POLK, also known as SHANESSE YAETTA-FRANCHELLA POLK, also known as SHINESSE YAETTA-FRANCHELLA POLK, also known as SHANEESE YAETTA-FRANCHELLA BROWN, Defendant-Appellant, And MRN, MCN, and DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellees.
UNPUBLISHED
Wayne Circuit Court Family Division LC Nos. 2018-000225-NA; 20-101578-DC
Before: Cameron, P.J., and Jansen and Gleicher, JJ.
Per Curiam
Defendant appeals as of right an order awarding plaintiff sole legal and sole physical custody of the parties' twin sons, MRN and MCN, and dismissing the child protective proceeding. We remand for further proceedings.
In December 2017, the Department of Health and Human Services (the DHHS) filed a neglect petition against plaintiff and defendant, who are the parents of MRN and MCN. MRN was medically fragile, and it was alleged that defendant and plaintiff had, inter alia, medically neglected MRN. In June 2018, plaintiff and defendant entered no-contest pleas in regard to adjudication. Case service plans were adopted for both plaintiff and defendant. Defendant's attorney expressed approval of defendant's service plan during the initial dispositional hearing. Plaintiff completed his service plan, whereas defendant failed to complete hers. The DHHS eventually filed a supplemental petition seeking termination of defendant's parental rights. At the conclusion of the termination hearing in January 2020, the trial court denied the DHHS's request to terminate defendant's parental rights, concluding that it was not in the best interests of the children. In January 2020, MCN was placed with plaintiff, and in June 2020, MRN was placed with plaintiff. Meanwhile, plaintiff filed a separate child-custody action against defendant, and a custody hearing was held over several dates together with dispositional review hearings in the child protective proceeding. In November 2020, the trial court granted sole legal and sole physical custody of the twins to plaintiff and granted defendant a specific award of parenting time. As part of the same ruling, the trial court dismissed the child protective proceeding. This appeal ensued.
Although plaintiff and defendant were respondents in the child protective proceeding, we will refer to them respectively as plaintiff and defendant throughout this opinion for the sake of consistency and because those were their respective party-designations in the child-custody case.
On appeal, defendant makes a confusing series of arguments, some of which are interrelated. She claims that she was denied her state and federal constitutional rights to due process and equal protection of the laws during the lower court proceedings. In connection with her constitutional claims, defendant asserts that the DHHS failed to make reasonable efforts to reunify her with the twins. Defendant also challenges the trial court's findings, or lack thereof, in connection with its custody ruling. For the reasons that follow, we determine that defendant's constitutional claims and her argument that the DHHS failed to make reasonable efforts to reunify her with the twins are unavailing. But we agree that the trial court failed to make findings required in a child-custody case, thereby requiring that the case be remanded for further proceedings.
To preserve a constitutional claim, a party must object on that ground below. In re TK, 306 Mich.App. 698, 703; 859 N.W.2d 208 (2014). In the trial court, defendant did not assert a violation of her constitutional rights to due process or equal protection. Hence, her constitutional claims are unpreserved.
To preserve an argument that the DHHS failed to make reasonable efforts to reunify the family, a party must object or indicate that the services provided were inadequate when the trial court adopted the service plan. In re Frey, 297 Mich.App. 242, 247; 824 N.W.2d 569 (2012). Defendant failed to object or indicate that the services provided were inadequate when the service plan was adopted below. Therefore, this part of her argument is unpreserved. Moreover, defendant's attorney expressed approval of the service plan when it was adopted below. At the June 13, 2018 initial dispositional hearing, defendant's attorney stated, with respect to the service plan, "On behalf of the mother the plan sounds good to me." A party "may not assign as error on appeal something that she deemed proper in the lower court because allowing her to do so would permit [the party] to harbor error as an appellate parachute." In re Hudson, 294 Mich.App. 261, 264; 817 N.W.2d 115 (2011). The intentional relinquishment of a known right constitutes waiver. The Cadle Co v Kentwood, 285 Mich.App. 240, 254-255; 776 N.W.2d 145 (2009). "A party who waives a right is precluded from seeking appellate review based on a denial of that right because waiver eliminates any error." Id. at 255. Hence, appellate review of this part of the issue is foreclosed.
With respect to defendant's unpreserved arguments on appeal, any review is limited to plain error affecting substantial rights. In re Utrera, 281 Mich.App. 1, 8; 761 N.W.2d 253 (2008). To obtain relief, defendant must show that an error occurred, that the error was clear or obvious, and that the error affected her substantial rights. In re Ferranti, 504 Mich. 1, 29; 934 N.W.2d 610 (2019). Generally, an error affects substantial rights if it is prejudicial, i.e., it affected the outcome of the case. In re Utrera, 281 Mich.App. at 9.
As for defendant's argument regarding the trial court's custody ruling, this Court has noted that "[t]hree different standards govern our review of a circuit court's decision in a child-custody dispute. We review findings of fact to determine if they are against the great weight of the evidence, we review discretionary decisions for an abuse of discretion, and we review questions of law for clear [legal] error." Kubicki v Sharpe, 306 Mich.App. 525, 538; 858 N.W.2d 57 (2014). Under the great weight of the evidence standard, the trial court's findings are affirmed unless the evidence clearly preponderates in the opposite direction. Mitchell v Mitchell, 296 Mich.App. 513, 519; 823 N.W.2d 153 (2012). The trial court's credibility determinations are accorded deference given its superior position to make such determinations. Shann v Shann, 293 Mich.App. 302, 305; 809 N.W.2d 435 (2011). Discretionary rulings, such as the determination regarding to whom custody is granted, are reviewed for an abuse of discretion. Butler v Simmons-Butler, 308 Mich.App. 195, 200; 863 N.W.2d 677 (2014). "An abuse of discretion, for purposes of a child custody determination, exists when the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias." Id. at 201.
Defendant first argues that she has been denied her state and federal constitutional rights to due process and equal protection of the laws. Defendant's argument on this point is unavailing.
Initially, defendant waived her due-process claim by failing to include it in her statement of questions presented. Seifeddine v Jaber, 327 Mich.App. 514, 521; 934 N.W.2d 64 (2019). Moreover, defendant's argument regarding her constitutional claims is confusing, disjointed, and sometimes impossible to comprehend. "A party may not simply announce a position and leave it to this Court to make the party's arguments and search for authority to support the party's position. Failure to adequately brief an issue constitutes abandonment." Id. at 519-520 (citation omitted). We will nonetheless address defendant's argument to the extent that it can be understood.
With respect to the constitutional right of due process, this Court has explained:
Both the Michigan Constitution and the United States Constitution preclude the government from depriving a person of life, liberty, or property without due process of law. Parents have a significant interest in the companionship, care,
custody, and management of their children, and the interest is an element of liberty protected by due process.
The essence of due process is fundamental fairness. There are two types of due process: procedural and substantive. The fundamental requirements of procedural due process are notice and a meaningful opportunity to be heard before an impartial decision maker. The essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests. A person claiming a deprivation of substantive due process must show that the action was so arbitrary (in the constitutional sense) as to shock the conscience. [In re Beck, 287 Mich.App. 400, 401-402; 788 N.W.2d 697 (2010), aff d on other grounds 488 Mich. 6 (2010) (quotation marks, brackets, and citations omitted).]
"The equal protection guarantee contained in both our federal and state constitutions requires that persons under similar circumstances be treated alike. However, it does not require that persons under different circumstances be treated the same." In re AH, 245 Mich.App. 77, 82; 627 N.W.2d 33 (2001) (citation omitted).
Much of defendant's argument on her constitutional claims is premised on her contention that the trial court effectively terminated her parental rights. Her argument on this point fails. In January 2020, following a termination hearing held over several dates, the trial court denied the DHHS's request to terminate defendant's parental rights. Moreover, the trial court's decision in November 2020 to award sole legal and sole physical custody of the twins to plaintiff did not terminate defendant's parental rights to the twins. A child-custody award does not constitute a termination of parental rights. See Hunter v Hunter, 484 Mich. 247, 269; 771 N.W.2d 694 (2009) (noting that a custody award differs from a termination of parental rights because a custody award "represents a lesser intrusion into the family sphere" and "does not result in an irrevocable severance of parental rights"). The trial court's custody decision included a specific award of parenting time to defendant, and the court emphasized that the parties remained free to seek a modification of custody. See MCL 722.27(1)(c) (permitting a court to modify or amend its previous custody judgments or orders for proper cause shown or because of a change of circumstances). Therefore, defendant's constitutional claims fail to the extent her claims are premised on her incorrect contention that the trial court effectively terminated her parental rights.
Defendant's constitutional claims are also premised on her contention that the DHHS did not make reasonable efforts to reunify her with her children. Defendant suggests that she was treated differently from plaintiff because more onerous requirements were imposed on her pursuant to her service plan. Defendant's argument on this point likewise fails.
Generally, the DHHS
has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights. As part of these reasonable efforts, the [DHHS] must create a service plan outlining the steps that both it and the parent will take to rectify the issues that led to court involvement and to achieve reunification. [In re Hicks/Brown, 500 Mich. 79, 85-86; 893 N.W.2d 637 (2017) (citations omitted).]
Although the DHHS "has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of [a respondent-parent] to participate in the services that are offered." In re Frey, 297 Mich.App. at 248. As noted earlier, defendant's attorney affirmatively approved the service plan when it was adopted, thereby waiving any objection to the service plan. Also, plaintiff has not shown that she was treated differently from a person with whom she was similarly situated. Defendant engaged in troubling behavior during the child protective proceedings. She made threats of bodily harm to a DHHS worker, tested positive for cocaine multiple times, and often failed to maintain stable housing. Two psychological reports recommended that she obtain a psychiatric evaluation, but despite multiple referrals by the DHHS, she failed to complete a psychiatric evaluation. By contrast, plaintiff completed his service plan, provided a suitable home for the twins, and did not engage in unstable or troubling behavior comparable to defendant's behavior. Therefore, defendant's argument that she was treated differently from plaintiff fails to support her equal-protection claim because defendant and plaintiff were not similarly situated in relevant respects.
Overall, defendant has not established a clear or obvious deprivation of her constitutional rights to due process or equal protection of the laws. She was not denied notice or an opportunity to be heard in the lower court proceedings. There was no arbitrary denial of her liberty interest in the companionship, care, custody, and management of her children. Finally, she has not established that she was treated differently from a person with whom she was similarly situated.
Defendant also challenges the trial court's findings, or lack thereof, with respect to its custody determination. The children's attorney agrees that the trial court failed to make requisite findings and that a remand is therefore required. And although not formally taking a position on this issue because it was not a party to the custody dispute, the DHHS observes that a remand for further elaboration is required when the trial court fails to make required findings. We agree that the trial court did not make the required findings and that a remand is therefore required.
To be more specific, the children's attorney agrees that a remand is required for findings regarding the best-interest factors; but the children's attorney argues that the trial court's failure to make findings regarding the threshold showing of proper cause or a change of circumstances and regarding the established custodial environment does not require a remand because there is sufficient information in the record for this Court to determine those issues de novo.
The trial court failed to announce a finding regarding whether plaintiff had demonstrated proper cause or a change of circumstances to warrant considering a modification of custody. A party seeking a change of custody must establish proper cause or a change of circumstances by a preponderance of the evidence. In re AP, 283 Mich.App. 574, 600; 770 N.W.2d 403 (2009), citing Vodvarka v Grasmeyer, 259 Mich.App. 499, 508-509; 675 N.W.2d 847 (2003). "The movant must make this requisite showing before the trial court determines the burden of persuasion to be applied and conducts the evidentiary hearing." In re AP, 283 Mich.App. at 600, citing Vodvarka, 259 Mich.App. at 509. Although the trial court failed to state a finding regarding whether plaintiff had made the required threshold showing, it is beyond dispute that a change of circumstances existed. As part of the neglect proceedings, the twins were removed from defendant's care and ultimately placed with plaintiff. In a similar case, this Court held that such a development constituted a change of circumstances. See In re AP, 283 Mich.App. at 603-604. Therefore, the trial court's failure to state its finding on this point was harmless and does not by itself require a remand. Id.
The trial court also failed to state a finding regarding the existence of an established custodial environment and to articulate the resulting burden of persuasion. A trial court "is required to look into the circumstances of the case and determine whether an established custodial environment exists." In re AP, 283 Mich.App. at 601. "A child's custodial environment is established 'if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.'" Id., quoting MCL 722.27(1)(c). "In making this determination, a court must also consider the 'age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship.'" In re AP, 283 Mich.App. at 601 (ellipsis omitted), citing MCL 722.27(1)(c). "An established custodial environment is one of significant duration, both physical and psychological, in which the relationship between the custodian and child is marked by security, stability, and permanence." Sulaica v Rometty, 308 Mich.App. 568, 584-585; 866 N.W.2d 838 (2014). "If an established custodial environment exists with one parent and not the other, then the noncustodial parent bears the burden of persuasion and must show by clear and convincing evidence that a change in the custodial environment is in the child's best interests." In re AP, 283 Mich.App. at 601. If "an established custodial environment exists with both parents, the party seeking to modify the custody arrangement bears the burden of rebutting the presumption in favor of the custodial environment established with the other parent." Id. at 601-602 (citation omitted).
A trial court's failure to make a finding regarding the established custodial environment generally requires a remand unless the record contains sufficient information for this Court to determine the issue de novo. Sulaica, 308 Mich.App. at 585. Although the twins were placed with plaintiff at the time of the custody ruling, the trial court had also recognized during the proceedings that the twins were bonded with defendant. Again, both physical and psychological considerations are pertinent to the established custodial environment. Id. at 584-585. The determination whether an established custodial environment exists "is an intense factual inquiry." Foskett v Foskett, 247 Mich.App. 1, 6; 634 N.W.2d 363 (2001). On the basis of the record before this Court, we are unable to determine whether the trial court's failure to make this finding was harmless. Also, as discussed later, a remand is required anyway because the trial court failed to make findings regarding the best-interest factors. We thus remand with instructions to make the requisite finding regarding the established custodial environment and to articulate the resulting burden of persuasion.
Finally, the trial court failed to state findings regarding each of the best-interest factors of MCL 722.23. This Court has explained that
the finder of fact must state his or her factual findings and conclusions under each best interest factor. These findings and conclusions need not include consideration of every piece of evidence entered and argument raised by the parties. However, the record must be sufficient for this Court to determine whether the evidence clearly preponderates against the trial court's findings.
Where a trial court fails to consider custody issues in accordance with the mandates set forth in MCL 722.23 and make reviewable findings of fact, the proper remedy is to remand for a new child custody hearing. The scope of such a hearing
is within the discretion of the trial court on remand, but it must consider all the evidence and information currently before it. [In re AP, 283 Mich.App. at 605 (quotation marks and citations omitted).]
The trial court questioned both parties about their views regarding who should prevail on each best-interest factor, but the trial court did not itself state findings regarding each best-interest factor. It is thus necessary to remand the case for a new child-custody hearing at which the trial court shall make the required findings regarding each of the best-interest factors. Id. at 605-608.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Thomas C. Cameron, Kathleen Jansen, Elizabeth L. Gleicher