Trial Court Inadequately Addressed Statutory Factors: Removal Of Children Reversed

The trial court erroneously ordered that the children in this case be removed from their mother’s care based on medical neglect, the Michigan Court of Appeals has ruled, because the statutory factors for removal were not properly addressed.

The Department of Health and Human Services (DHHS) in In re McDaid, Minors (Docket No. 364341) petitioned the St. Joseph County Circuit Court to take jurisdiction over the respondent-mother’s two children, HM and ZM, under MCL 712A.2(b)(1) due to allegations of medical neglect. The petition also asked the trial court to issue an order removing the children from the respondent’s home.

Upon entering an order of removal, the trial court checked a box on the applicable SCAO-approved court form indicating there was probable cause to believe that one or more of the allegations in the DHHS’s petition were true. In addition:

• the trial court checked a box indicating that it was necessary to order the removal of ZM and HM from the respondent’s care. When this box is checked, the form says that “contrary to the welfare and reasonable efforts findings must be made.”

• the trial court checked a box that says, “It is contrary to the welfare of the child(ren) to remain in the home because” and, underneath this statement, wrote “Lack of efforts for [respondent] to bond with and care for [ZM].”

• the trial court, in order to fulfill the form’s requirement that reasonable efforts be addressed, checked a box that says, “Consistent with the circumstances, reasonable efforts were made to prevent removal of the child(ren) from the home” and indicated those efforts included “Social Work Services, Conversations with [respondent] about the importance of learning how to properly care for [ZM], visits to hospitals and [doctors] offices.”

On appeal, the respondent argued the trial court failed to make the findings required to order the removal of her children under MCL 712A.13a(9), as well as MCR 3.965(C)(2).

The Court of Appeals agreed with the respondent, reversed the order and remanded the case.

“[W]e stress that [the] best practice for trial courts when making removal decisions is to specifically address the five required findings under MCL 712A.13a(9) and MCR 3.965(C)(2) and articulate the basis for each finding on the record,” the Court of Appeals said. “Here, the trial court’s oral opinion and ensuing order appear perfunctory, which is not only highly inappropriate given the seriousness of ordering removal of a child from a parent’s custody, but it stifles this Court’s ability to review the merits of the trial court’s decision.”

Judge Brock A. Swartzle and Judge Colleen A. O’Brien joined the per curiam opinion.

Judge Kathleen A. Feeney concurred in the result. She wrote separately to point out that “the trial court failed to make the required factual findings supporting the factors in MCR 3.965(C)(2) and MCL 712A.13a(9) regarding each child after addressing and encouraging respondent at the preliminary hearing, and merely checking boxes on a SCAO form is insufficient to permit appellate review.”

Factual Finding Failure

In its opinion, the Court of Appeals explained that MCL 712A.13a(9) and MCR 3.965(C)(2) permit a court to order children under its jurisdiction to be placed in foster care if the court finds certain conditions are satisfied.

“The statute and the court rule codify the same five conditions that must be found to justify removal,” the Court of Appeals said, referring to the statute, which says:

“The court may order placement of the child in foster care if the court finds all of the following conditions:

(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 risk as described in subdivision (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.”

Although a trial court is “not obligated to articulate extensive findings regarding every conceivable detail,” it is required to “make a record of its findings as to each and every factor sufficient for this Court to conduct a meaningful review,” the Court of Appeals explained, citing In re Williams, 333 Mich App 172 (2020).

The Court of Appeals pointed out that the “best practice” when making removal decisions is for the trial court to “specifically address” each of the five requirements under MCL 712A.13a(9) and MCR 3.965(C)(2), and set forth the basis for each finding on the record. In this case, however, the trial court’s oral opinion and written order “appear perfunctory,” the appeals court observed, saying this is “highly inappropriate” because of the seriousness of ordering the removal of children from a parent’s custody.

“The requirement that a trial court make a record of its findings for every factor stems in no small part from the simple fact that this is an error-correcting Court, not a fact-finding court,” the Court of Appeals wrote. “The importance of these distinct roles is particularly salient in a case like this where this Court is tasked with reviewing the trial court’s factual findings; if there are no factual findings to review, then that itself is an error that must be corrected.”

As a result, “it should come as little surprise that we conclude that the trial court failed to make the factual findings required by MCL 712A.13a(9) and MCR 3.965(C)(2) prior to removal,” the Court of Appeals stated. “We will not belabor the point, however.”

More Than Checking A Box

The Court of Appeals then examined the trial court’s order and the specific statutory factors.

“Most problematically, the trial court failed to make any factual findings with respect to MCL 712A.13a(9)(b) and (e),” the Court of Appeals wrote. “For MCL 712A.13a(9)(b), the trial court was required to address whether there was any ‘service or other arrangement except removal of the child’ that was ‘reasonably available’ and could ‘adequately safeguard the child’ if left in respondent’s care. The trial court said nothing in its oral opinion that could be reasonably construed as addressing this factor. In its written order, the trial court checked a box on a form indicating that ‘no remedy other than protective custody is reasonably available to protect the child(ren),’ but this statement, without more, is plainly inadequate.”

Regarding MCL 712A.13a(9)(e), “the trial court was required to address whether ‘[c]onditions of child custody away from [respondent were] adequate to safeguard the child’s health and welfare,’” the Court of Appeals said. “Nothing in either the trial court’s oral argument or written order reflect that the trial court made any findings related to this factor, leaving this Court with nothing to review”

The Court of Appeals further noted that the In re Williams court held that “when a trial court ‘ignore[s] the mandates in MCR 3.965(C)(2) and MCL 712A.13a(9),’ the proper remedy is to reverse the removal order, and, ‘If, after remand, any party again seeks removal of [the children], the trial court must make findings on the record as to all the factors enumerated in MCR 3.965(C)(2) and MCL 712A.13a(9).’”

Accordingly, “we reverse the trial court’s removal order, remand for further proceedings, and, if a party again seeks removal, direct the trial court to make findings on the record with respect to all of the factors in MCR 3.965(C)(2) and MCL 712A.13a(9),” the Court of Appeals concluded.