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Mom’s Parenting Time Properly Suspended, But Case Remanded For Periodic Hearings

Posted on Wednesday, October 9, 2019

Although a trial court correctly suspended a mother’s parenting time, the matter should be remanded to the trial court so periodic hearings can be held to determine whether reinstating visitation would be in the children’s best interests, the Michigan Court of Appeals ruled in Luna v Regnier.

In Luna v Regnier (Docket No. 343382), the Tuscola County Circuit Court completely suspended the mother’s parenting time with her children, finding there was clear and convincing evidence the children’s mental and emotional health was endangered by allowing her to visit with them.

The Court of Appeals affirmed the parenting time suspension, finding there was sufficient evidence that visitation with the mother would harm the children mentally and emotionally.

However, the Court of Appeals further said the trial court must occasionally conduct hearings to ascertain whether it would be in the children’s best interests to reinstitute the mother’s parenting time privileges at some point. “Without a mechanism for further review, [the mother’s] parental rights are effectively nonexistent,” the Court of Appeals said.

Judges Colleen A. O’Brien, Kirsten Frank Kelly and Karen M. Fort Hood were on the panel that issued the published opinion.

“Harmful” Contact 

The defendant mother and the plaintiff father were never married but lived together with their three children, CR, ZR and DR. In 2010, the defendant traveled to Florida for six months to help her older children from a previous relationship. She then returned in hopes of getting the parties’ three children and taking them to Florida. The plaintiff then filed this custody action and obtained an ex parte custody order so the children would live with him.

When the defendant ultimately returned from Florida, she alleged that she found the children living with the plaintiff in “deplorable and unsanitary conditions.” The defendant reported this to Child Protective Services (CPS) and a child protective proceeding was initiated. The children were placed in foster care but were eventually returned to the plaintiff. The trial court later awarded the plaintiff sole legal and physical custody of the children. The defendant was granted supervised parenting time.

In March 2012, the Department of Health and Human Services (DHHS) successfully moved to suspend the defendant’s visitation rights, alleging that she had missed visits and that her “inconsistency and unpredictability” was damaging to the children. The trial court subsequently terminated her parental rights, largely based on her noncompliance with services. The Michigan Supreme Court remanded the case to the trial court based on its abolition of the “one-parent doctrine” in In re Sanders, 495 Mich 394 (2014). Thereafter, DHHS withdrew its petition and the defendant’s parental rights were reinstated in June 2015.

Thereafter, the plaintiff filed a motion to suspend parenting time, asserting the children had not seen the defendant in three years (and did not want to see her). The trial court spoke to the children in chambers, where the children “adamantly” said they did not want to spend time with the defendant. The trial court entered a temporary parenting time order that granted the defendant two hours of visitation per week for two weeks and then four hours per week afterward.

Meanwhile, the guardian ad litem (GAL) filed a motion to suspend the defendant’s parenting time because the children’s negative behavior was getting worse as visitation with her continued. According to the GAL, the children’s counselors believed the stress and anxiety that the visitations caused them negatively impacted their progress. The trial court granted the GAL’s motion and the defendant was not allowed any parenting time.

The defendant then asked the trial court to rescind its order suspending her parenting time. Ultimately, the trial court found the children had an established custodial environment with the plaintiff. After considering the best interest factors in MCL 722.23, the trial court concluded that the defendant’s parenting time should be suspended entirely because “contact with mother may be harmful to the children’s mental and emotional health at the present time.” The trial court entered an order suspending parenting time until the minor children requested contact with the defendant.

Parenting Time Appeal

On appeal, the defendant argued there was insufficient evidence that parenting time with her would endanger the children’s mental or emotional health.

“We disagree,” the Court of Appeals said, noting the trial court conducted a thorough analysis of the best interest factors in MCL 722.23 and also considered the children’s trauma assessments and their counselor’s opinion letters. “Review of these confidential records lead this Court to conclude that this finding was not against the great weight of the evidence because the facts do not ‘clearly preponderate in the opposite direction.’”

Regarding ZR, “our review indicates that forced parenting time, especially in light of ZR’s strongly expressed preference that he would potentially consider a relationship with defendant in the future at his own discretion, was likely to cause emotional trauma and would serve to drive a wedge further between mother and child, not foster a strong relationship,” the Court of Appeals wrote.

Regarding DR, both the assessor and the counselor said that DR “needed stability” and did not indicated the defendant could be part of that stable environment. “Overall, we cannot conclude that the trial court’s finding that parenting time with defendant would harm DR mentally or emotionally was against the great weight of evidence,” the Court of Appeals observed.

Regarding CR, the defendant claimed that ZR and DR “may have been negatively influenced by CR,” who was no longer subject to the court’s jurisdiction. “However, whether parenting time went well from September 2015 until December 2015 and whether CR instigated problems is not of consequence to whether parenting time would be harmful for the children now,” the Court of Appeals stated.

Meanwhile, the defendant also asserted the plaintiff had estranged the children from her and spoke ill of her in front of them. There was also testimony, however, that the plaintiff encouraged the children to attend parenting time and the plaintiff testified that he did not know why the children felt negatively toward the defendant and that he did not speak negatively about her in front of them. “The trial court had the discretion to weigh the credibility of the evidence and the witness testimony,” the Court of Appeals said. “We do not second-guess its determination.”

In conclusion, the Court of Appeals addressed the defendant’s argument that the trial court’s order suspending her parenting time without ordering reunification therapy constituted a de facto termination of her parental rights. “While we do not believe that the trial court abused its discretion by suspending defendant’s parenting time and declining to order reunification therapy, we do believe that it is necessary to remand this case and direct the trial court to conduct periodic hearings to determine whether the children wish to reinitiate contact with defendant and whether resumption of parenting time would be in their best interests.”

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