BY ARIANA HEATH (GENESEE COUNTY)
In re ZJF, March 10, 2022, No. 356525, Wayne Circuit Court – Juvenile was charged with CSC 1st and adjudicated at a jury trial. Juvenile moved for a new trial, alleging the prosecutor improperly suppressed material evidence in a Brady violation. Juvenile alleged the prosecutor withheld a police report from Livonia which included a statement from the victim in which she told investigators the encounter might have been consensual. Juvenile argued he was denied a fair trial because this evidence could have been used for impeachment purposes. The trial court found that the information in the Livonia police report was simply quoting another police report from the Westland police department and because the juvenile had access to the Westland report, there was no violation.
COA affirmed the trial court. For a Brady violation to occur, one, the evidence must be favorable to the accused because it is exculpatory or because it is impeaching; two, that evidence must have been suppressed by the State, either willfully or inadvertently; and three, prejudice must have ensued. COA ruled no Brady violation occurred and a new trial was not warranted. The Livonia report largely concerned events occurring after and unrelated to the instant case. The relevant portion quoted a report from the Westland police department, not a direct statement of the victim. The Westland report was provided to the juvenile through discovery before trial. Juvenile had the necessary information to impeach the victim. COA further stated the Livonia report was inadmissible hearsay and therefore was not favorable nor material evidence under Brady. And the Livonia report was double hearsay, as it was quoting the Westland report. Because the report is inadmissible, it cannot meet the first prong of Brady.
ABUSE / NEGLECT
In re Jackish/Stamm-Jackish, ___ Mich App ___ (February 1, 2022), No. 357001, Genesee Circuit Court – A petition was filed in March 2017 alleging medical neglect. It was dismissed. A petition was filed again in February 2018, reiterating and expanding on the medical neglect. Health care workers expressed concerns about mother’s ability to care for the children and there were concerns of abuse. Drugs and drug paraphernalia were observed in the home within reach of the children. The petition was authorized. Mother participated in some services and failed to follow through with others. She continued to demonstrate difficulty with parenting and understanding the children’s needs. Trial court terminated under MCL 712A.19b(3)(c)(i), (g), and (j) and found that termination was in the children’s best interest.
COA affirmed the termination. COA stated the trial court did err to the extent it based termination on mother’s involvement in domestic violence as the record failed to establish that mother was a perpetrator of domestic violence. The fact that mother was a victim cannot be relied upon as a basis for terminating parental rights, citing In re Plump, 294 Mich App 270, 273; 817 NW2d 119 (2011). The record in this case was too vague. However, even striking any references to domestic violence, COA found there was ample support for the trial court’s findings that grounds for termination were met and were in the children’s best interest.
In re Farris/White, ___ Mich App ___ (February 24, 2022), No. 357743, Wayne Circuit Court – the petition alleged father failed to protect the children from their mother’s known substance abuse, had failed to remove the children from deplorable home conditions, and had his own substance abuse issues. Father’s first appearance was at the adjudication hearing. He acknowledged that he knew what was going on because he had been with mother but could not be “in the camera” (hearings were conducted via video conference) when mother participated in hearings. Before trial, an amended petition was filed alleging father had sexually abused two of mother’s other children unrelated to him. Father did not appear for the adjudication trial or any subsequent hearings. He failed to appear at the combined adjudication/dispositional hearing. After trial, the referee recommended the court exercise jurisdiction over the minor children and terminate father’s parental rights.
Father argued on appeal that termination was improper because workers failed to make real efforts to locate him. COA said it had to first address jurisdiction. COA said father did not request appointed counsel to pursue the appeal. Father’s trial counsel initiated the appeal when he requested appointed counsel on Father’s behalf. COA concluded that “an aggrieved party” did not file the request for appellate counsel. It was an unauthorized request for appellate counsel and thus the COA lacked jurisdiction and dismissed the appeal.
In re Simonetta, ___ Mich App ___ (February 24, 2022), No. 357909, St. Clair Circuit Court – mother’s parental rights were terminated without providing reasonable efforts aimed at reunification. The issue was whether mother’s prenatal use of opioids and marijuana met the “aggravated circumstances” grounds necessary to skip reasonable efforts. Specifically, the petitioner alleged the baby had been subjected to “severe physical abuse.” COA ruled maternal drug use does not give rise to an aggravated circumstance permitting the termination of parental rights under any circumstance because a fetus is not a child under the Probate Code. Trial court further erred by construing the evidence as consistent with severe physical abuse.
DHHS filed a petition requesting termination at initial disposition. The petition alleged that the baby’s meconium was positive for opiate and THC and mother had admitted to using marijuana and taking a Norco prior to the baby’s birth. DHHS argued this qualified as severe physical abuse under the aggravated circumstances statute. The petition further alleged mother had prior CPS involvement during which she had voluntarily released her rights to twins. The record contained no evidence that the baby sustained any perceptible injury. Witnesses testified the baby was doing well and had no special needs. Neither the circuit court nor the referee made specific findings that aggravated circumstances existed. COA initially affirmed the trial court. Mother appealed to the Supreme Court. MSC vacated COA and ordered the trial court to either order the petition to provide reasonable efforts for reunification or articulate a factual basis based on clear and convincing evidence that aggravated circumstances existed. The trial court found mother’s prenatal drug use qualified as aggravated circumstances. Mother appealed again. COA found drug abuse during pregnancy and the ensuing harm to the child do not rise to the level of severe physical abuse. Maternal drug use does not give rise to aggravated circumstances because the statute applies to severe physical abuse of a child and a fetus is not a child under the probate code.
COA cited People v Jones, 317 Mich App 416; 894 NW2d 723 (2016), wherein the COA found that the definition of child did not refer to fetuses and that the Legislature had consistently refrained from expanding the definition of person to include fetuses. Given that the word fetus appears in a number of civil and criminal laws, the admission of it from the Probate Code’s definition of child should be viewed as purposeful. COA went on to cite numerous sources to support this position. COA stated that by excluding fetuses from the definition of a child, the Legislature has recognized that drug use during pregnancy does not automatically mean a mother will abuse her child after birth. COA noted that father had initially been a respondent and had a long history of substance abuse, but the agency provided him extensive services and he was deemed capable of caring for the baby. COA stated “The DHHS’s obvious inconsistency regarding parental drug abuse smacks of gender bias.” Aggravated circumstances did not exist as a matter of law.
Furthermore, COA found that the record did not contain clear and convincing evidence (as required when termination is being sought at initial disposition and without reunification efforts) that the child had been abused. DHHS failed to introduce any evidence that mother’s drug use harmed the child. COA said “The record strongly supports that the DHHS’s decision to deny respondent services was based on respondent’s previous voluntary termination of her parental rights to her twins (an improper basis for denying services) and a desire to punish respondent for her drug use.” COA said mother is entitled to receive services designed to help her combat her drug use, assist her in locating safe housing, and address other concerns.
In re Atchley, ___ Mich App ___ (April 21, 2022), Nos. 358502, 358503, Eaton Circuit Court – both mother and father appealed their termination. The petition was filed in March 2020. The parents entered a plea of admission in May 2020, acknowledging they tested positive for amphetamines and methamphetamines. They pled no contest to several other allegations. A case service plan was developed to address substance abuse, domestic violence, and emotional instability. Parents only minimally complied and did not demonstrate any progress. A termination petition was filed in May 2021.
Parents argued the petitioner failed to make reasonable efforts at reunification. Father argued a number of services were provided virtually, but he did not have reliable internet access. Mother argued more time was necessary given the pandemic. COA analyzed the trial court’s record as to what efforts were made as to father and mother and found them to be adequate and there was no clear error.
Parents argued the petitioner failed to meet the statutory grounds for termination and best interest of the children. COA again analyzed the record and found no clear error.
In re F. Nikooyi, ___ Mich ___ (May 12, 2022), No. 358717, Macomb Circuit Court – Parents’ adult child (and sibling to the minor at issue) filed a petition to initiate child protective proceedings against his parents, alleging they were unfit to raise the minor child without state supervision. Petitioner argued anyone who suspects a child’s home is unsafe may file a petition. The trial court dismissed the petition for lack of standing. Petitioner appealed. COA analyzed the court rules and statutes surrounding the filing of petition and noted that both say “a person” who files a petition and thus anyone who complies with the requirements of the court rules has standing to initiate a child protective proceeding. The court noted that the Legislature restricted who may file termination petitions and could have done so with initiating child protective proceedings but did not do so. Because the petitioner had standing, the trial court was obliged to consider the merits of the petition.
In re Bell, ___ Mich App ___ (May 19, 2022), No. 360191, the minor child (AB), through her LGAL, appealed a trial court order granting mother’s motion for AB to undergo an independent medical examination (IME) to determine whether she had any physical signs of sexual abuse. AB and her siblings were removed due to physical abuse allegations. AB had significant behavioral concerns and was placed in residential treatment. Parents entered pleas. AB then alleged father had beaten and raped her several times and she had told her mother, who did nothing to protect her. The child had been in care for several months by this time. Mother’s counsel contacted opposing counsel to request that they stipulate to AB undergoing an IME to reveal any medical evidence of sexual abuse. Counsel declined. Mother’s counsel then filed an ex-parte motion for an IME. The trial court granted the ex-parte motion. The LGAL and DHHS objected. After a hearing, the trial court acknowledged it should not have entered the order ex-parte and set the order aside. The trial court analyzed the issue under a due process framework and granted the motion. The LGAL appealed.
COA ruled a trial court does not have authority in a child protection proceeding to order a minor child alleging sexual assault to submit to court ordered forensic sexual assault examination. The COA first addressed the mother’s counsel did not provide the court with any legal basis for the entry of such an order or any authority to show she has the right to request such a thing. COA said that the court rule cited by mother, MCR 2.311, is for civil cases and does not apply. Also, the minor child’s physical condition was not in controversy as is necessary under that court rule. The controversy was whether or not AB told mother that father had sexually abused her and whether or not mother took any action. COA noted that a complainant’s disclosure of sexual assault does not place any purported injury “in controversy.”
The LGAL argued that statutory provisions in criminal cases provide support for her position that the trial court erred. COA ruled several provisions in the criminal code were persuasive. COA noted that MCL 333.21527(1) (which allows for health care providers to provide sexual assault exams), only applies to allegations of CSC that occurred within the prior 120 hours and provides that the exam can only be done with the consent of the complainant. Though AB did not report her assault to a physician, COA noted that the 120 hours and consent portions were relevant. AB had been removed from her parents’ care 10 months prior and was not consenting to any exam. The fact that the statute required exams to be done within a certain timeframe and only with consent highlighted the trial court’s lack of authority to order an IME against the child’s wishes and so far removed from the time of the alleged assault.
COA also addressed the rape shield statute and noted it removes “unnecessary deterrents” to the reporting and prosecution of sexually based offenses. COA stated “this Court will not create any additional barriers to the disclosure by children of sexual abuse by allowing court-ordered sexual assault examinations, particularly where the Legislature has given no indication that trial courts possess such authority…” COA further noted that MCL 776.21 prohibits a police officer from requesting or ordering a victim of CSC to submit to a polygraph, unless the victim inquires about it. COA noted a polygraph is far less invasive than an IME and thus, without explicit statutory authority, the trial court could not compel an IME.
COA also stated that even if the trial court had authority to order an IME, it was not warranted in this case. The court analyzed it under the test set forth in Mathews v Eldridge, 424 US 319; 96 S Ct 893; 47 L Ed 2d 18 (1976) to evaluate the due process issue. There are three factors. First is the private interest affected by the official action. The trial court stated, with no explanation, this factor weighed in favor of granting the motion. COA said while mother’s fundamental right to her children is strong, the child’s interest in her own welfare, including her body autonomy, is at least as strong. Whether or not to order the IME would have a minimal impact on the ultimate ruling to terminate her parental rights as there were far more issues than just the alleged sexual assault. Basically, the IME would have little to no effect on mother’s care and custody of the children. But forcing AB to undergo the IME would absolutely have an effect on her privacy and body autonomy. The trial court failed to address that and gave minimal weight to her welfare and the effects an IME would have on her. COA found the IME impacts the private interest of AB far more than those of mother and the first factor would weigh against ordering the exam.
The second factor is the risk of erroneous deprivation of the interest through the procedure. COA said this was very minimal. There was minimal evidentiary value to be derived from an IME due to the passage of time. Court found that the allegation against mother was that she failed to protect and an IME would not resolve the question of whether or not AB was assaulted so it made it even less likely that it would resolve the question of whether or not mother failed to protect. The court noted mother was still entitled to a trial where she could challenge the sufficiency of the evidence. The second factor weighed against the order.
The third factor, the state’s interest, also weighed against ordering an IME. The trial court concluded the government interest weighed in favor of the exam. COA noted the government had a range of interests. Forcing the IME would do little to further the interest in preserving the family. COA found the government interest most affected by ordering the IME would be the interest in protecting the physical and mental health and safety of minors like AB. Forcing the exam undermines that interest. Allowing trial courts to force sexual assault complainants to undergo medical examinations could have the intended effect of deterring disclosures of abuse. The third factor weighed in favor of denying the exam. All of the Eldridge factors weighed in AB’s favor. The trial court committed error.
In re K.D. Mitchell, March 17, 2022, Nos. 358193; 358194, Arenac Circuit Court – DHHS filed a petition for in-home jurisdiction with allegations of substance abuse and domestic violence. DHHS filed an amended petition, seeking removal. The reasons for the amendment and removal request involved positive drug screens. There was some positive testimony for the parents at the preliminary hearing. The court ordered the petition be authorized and the children removed. Parents appealed, challenging only the removal. Parents argued the trial court failed to make all of the required factual findings and the removal decision was clearly erroneous. COA agreed. MCR 3.965(C)(2) and MCL 712A.13a(9) require the trial court find all of the factors prior to removal, citing In re Williams, 333 Mich App 172, 184; 958 NW2d 629 (2020). In this case, COA found the trial court failed to make specific findings that no provision of service or other arrangement except removal is reasonably available to safeguard the child from risk. The trial court also failed to find that her placement would adequately safeguard her health and welfare. There was significant testimony from witnesses that the child would not be at risk of harm with the right safeguards in place. COA also noted the trial court credited DHHS with reasonable efforts regarding prior services that were provided on other children and stated the statute requires DHHS’ efforts be made as to the particular child at risk of abuse and neglect.
In re N.R. Tiernan, March 31, 2022, No. 357076, Oakland Circuit Court – DHHS got involved because mother’s parental rights to her first child had been terminated. Parents signed a safety plan, agreeing to not use alcohol or other substances. During the pandemic lockdown, mother began using marijuana and alcohol. In June 2020, police were called to the home for a domestic disturbance. Child was found with bite marks on her face and shoulder and bruising around her eyes. Mother pleaded no contest to child abuse third degree and was sentenced to probation. DHHS sought termination at initial disposition. No services or parenting time were provided. Mother admitted allegations of the petition and the court took jurisdiction and terminated mother’s parental rights under MCL 712A.19b(3)(b)(i), (g), (i), and (k)(iii) and at the conclusion of testimony, found that termination was in the child’s best interest. Mother claimed an appeal, asserting in part that trial counsel was ineffective. COA remanded for a Ginther hearing. At the Ginther hearing, testimony was provided as to mother’s progress in therapy and sobriety. The GAL informed the trial court that if the information presented at the Ginther hearing had been provided prior to the best interest hearing, it would have changed her recommendation and she would have urged the trial court to find that termination was not in the child’s best interest. The trial court found that trial counsel was not ineffective and the information presented did not change the trial court’s opinion from the earlier ruling.
COA ruled trial counsel was ineffective. COA stated trial counsel’s strategy was not objectively reasonable. Trial counsel should have introduced corroborating evidence (trial counsel stated the corroborating evidence would have been superfluous or damaged mother’s credibility). The failure to do so was objectively unreasonable. COA found that the deficient performance clearly prejudiced mother.
COA found the trial court erred in determining that termination was in the child’s best interest. COA said the barrier to reunification as identified by the trial court was the prediction that mother would not remain sober for long. Thus the correct course of action would have been to provide time and services so mother could demonstrate she can remain sober.
In re Williams-Blair/Cross, April 14, 2022, No. 358173, Calhoun Circuit Court – Appellant K. Blair appealed the trial court’s order that denied his motion to intervene in a NA case and also denied his request for paternity testing and to revoke the paternity of the children’s legal father. The children were removed from mother and the court took jurisdiction in March 2020. Mother’s parental rights were eventually terminated. Mother had married Mr. Sims in 2002 and the relationship ended before any of the children were conceived and born, but they never obtained a divorce. Mr. Sims denied being the father of any of the children. Blair was initially listed on the petition as the father of four of the children. In 2012, default support and filiation orders had been entered, naming Blair as the legal father of the children. These orders were predicated on affidavits or AOPs signed by Blair and mother. Once it was discovered that mother was married, the trial court vacated the 2012 orders and revoked the AOPs. Blair expressed no objection to vacating the 2012 orders. The case then proceeded with Mr. Sims as the legal father and his parental rights were terminated. Blair was no longer a party.
In October 2002, Blair filed a separate action for paternity under the Revocation of Paternity Act with respect to the four children he claimed were his biologically. He never named Mr. Sims as a party and the case was dismissed for that reason. He later moved to intervene in the NA proceedings. The trial court found that his motion was not timely, given that it came months after Mr. Sims’ parental rights had been terminated. Court further found that Blair did not act within ROPA’s three-year time limit in relation to the children’s dates of birth. Trial court further concluded it was not in the children’s best interests to revoke paternity.
Blair argued he was unaware mother was married at the time the children were conceived. He argued he did not pursue paternity within the three year window because of the 2012 orders declaring him the father. He argued that his parental rights were terminated absent any grounds for termination and without proof that termination was in the children’s best interests.
COA had concerns about the 2020 revocation of the 2012 orders, but Blair did not object nor appeal those orders. COA said Blair provided a “somewhat rational reason” for not filing a motion sooner. COA found it unnecessary to explore it as the trial court had focused more on the best interest aspect of ROPA. The trial court had recounted the extensive history of physical violence Blair committed against mother and there was no error on the part of the trial court under this section of the statute.