Only Some Factual Findings Made: Custody Removal Order Vacated | Speaker Law
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Only Some Factual Findings Made: Custody Removal Order Vacated

Posted on Wednesday, March 30, 2022

The trial court in this child-welfare case did not make all the factual findings necessary to remove the minor child from her parents’ custody and, as a result, the removal order must be vacated, the Michigan Court of Appeals has ruled.

The Arenac County Circuit Court in In re K.D. Mitchell, Minor (Docket Nos. 358193, 358194) ordered that the minor child, KM, be removed from her parents’ custody. The trial court found that one or more allegations were true in the removal petition filed by the Michigan Department of Health and Humans Services (DHHS). According to the trial court, the parents having custody of the child presented “a substantial risk of harm to the child[]’s life, physical health, or mental well-being” due to the parents’ alleged substance abuse issues and domestic violence in the home.

The parents appealed. They argued the trial court erred because it did not make all the factual findings necessary under MCL 712A.13a(9) to order KM’s removal.

The Court of Appeals agreed and vacated the removal order.

Although the trial court made certain specific findings, it did not address all the factors in MCL 712A.13a(9), the Court of Appeals said. “[T]he trial court failed to make specific findings that ‘[n]o provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from risk,’ MCL 712A.13a(9)(b), or that ‘[c]onditions of child custody away from the parent are adequate to safeguard the child’s health and welfare,’ MCL 712A.13a(9)(e).”

In a footnote to the opinion, the Court of Appeals acknowledged the trial court “checked the boxes” in its removal order. “However, this did not suffice to satisfy the trial court’s obligation under MCL 712A.13a(9). While the court was ‘not obligated to articulate extensive findings regarding every conceivable detail,’ it had to ‘make a record of its findings as to each and every factor sufficient for this Court to conduct a meaningful review.’”

Judges Elizabeth L. Gleicher, Deborah A. Servitto and Anica Letica were on the panel that issued the unpublished opinion.

Speaker Law Firm represents the parents in Mitchell. While Lansing appellate attorney Liisa Speaker is pleased with the outcome for her clients, she notes that Michigan trial courts continue to struggle when applying the removal statute. “The Court of Appeals had a lot of questions about another unpublished removal decision, In re M. Foster, Minor, that was released in January 2022,” Liisa says. “Although these two decisions – Mitchell and Foster – are in sync with each other, they highlight the need for a published opinion on this issue.”

Background

In Mitchell, the DHHS asked the Arenac County Circuit Court to take jurisdiction over KM, alleging that the parents-respondents’ substance abuse and domestic violence issues negatively impacted their ability to properly care for their child, KM. According to the DHHS, it had received a Children’s Protective Services (CPS) complaint from KM’s aunt, raising concerns about her care. The petition cited specific incidents involving the respondents’ alleged use of drugs and alcohol, as well as domestic violence.

A CPS case worker visited the respondents’ home three times after the removal petition was filed. She reported seeing evidence of properly secured marijuana and paraphernalia, but no evidence of methamphetamines. She reported observing nothing that presented a risk of harm to KM. She also stated that weekly court-ordered drug testing could safeguard KM in the home, as long as the respondents did not use drugs and their drug screens remained negative.

In addition, a Families First worker spent time in the respondents’ home during a period of three weeks after the removal petition was filed. She reported that she did not see any conduct that presented a substantial risk of harm to KM and did not witness any concerning arguments between the respondents. She also reported the respondents were participating in, and benefitting from, the services being provided.

Despite the positive reports from case workers, the DHHS maintained that KM should be removed from the respondents’ home. The DHHS said it was mostly concerned about the respondents’ substance abuse history and unreported incidents of domestic violence. According to the DHHS, the respondents seemed to be “relapsing.”

The respondents’ attorneys opposed authorization of the petition, as well as removal. Counsel asserted that without the initial report made by KM’s aunt, there was “nothing there.” Meanwhile, KM’s guardian ad litem advocated for authorization of the petition but was less certain that removal was required.

The Arenac County trial court ruled there was probable cause to authorize the petition. The trial court found that KM remaining in the respondents’ care presented a serious risk of harm to her and that reasonable efforts had been made to avoid removal. The trial court entered an order holding that one or more of the allegations in the DHHS petition were true and that it was necessary to remove KM from the respondents’ custody. The trial court’s order summarized the reasons why KM remaining in the respondents’ home was contrary to her welfare. The trial court said: “[Respondents] have a significant history of domestic violence, substance abuse, criminal history, prior removal and termination of parental rights to their other children. On July 15, 2021, [father] tested positive for methamphetamines. On July 27, 2021, [mother] refused to drug screen for the [DHHS], after agreeing to drug testing at the prior hearing. There have been numerous reports of domestic violence in the last 6 months and evidence of physical neglect of [KM] has been presented.”

The respondents appealed.

 

Findings Not Made

On appeal, the respondents argued the trial court failed to make all of the factual findings necessary to order removal and, therefore, its decision to remove KM was erroneous.

“We agree,” the Court of Appeals said, pointing out that MCL 712A.13a(9) governs the trial court’s removal decision. That statute says a trial 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 the 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.

Meanwhile, MCR 3.965(C)(2) “is identical in substance” to MCL 712A.13a(9), the Court of Appeals observed. Both the statute and the court rule “explicitly require that the trial court find all the factors prior to removing a child from a parent’s care,” the appeals court said, citing In re Williams, 333 Mich App 172 (2020). “The trial court is not required to articulate extensive findings addressing every conceivable detail. … Rather, when examining the factual findings in support of factors, they must be sufficient for the appellate court to conduct a meaningful review.”

Here, the Court of Appeals pointed out the trial court made specific findings that:

  • custody with the respondents presented a substantial risk of harm to KM’s life, physical health or mental well-being.
  • continuing KM’s residence in the respondents’ home was contrary to KM’s welfare.
  • reasonable efforts were made to prevent or eliminate the need for KM’s removal.

However, the trial court did not make specific findings regarding MCL 712A.13a(9)(b) or MCL 712A.13a(9)(e), the Court of Appeals observed. Regarding MCL 712A.13a(9)(b), “the trial court did not consider whether anything short of removal could have kept KM safe. … As to MCL 712A.13a(9)(e), the trial court made no findings that the conditions of KM’s placement would adequately safeguard her health and welfare. … Accordingly, the trial court failed to make required findings under MCL 712A.13a(9)(e).”

The Court of Appeals further said it had “some doubts” about the trial court’s conclusion that continued custody of KM with the respondents presented a substantial risk of harm to the child. “We recognize that the trial court placed great weight on the prior voluntary termination arising from what was described as long-term substance abuse, domestic violence, and neglect. But without additional information, we cannot evaluate the probative value of the ‘inference that a parent’s treatment of one child is probative of how that parent may treat other children.’ … The incident that brought respondents to DHHS’s attention again was certainly disturbing, but there was no evidence supporting the trial court’s suggestion that this was a common event.”

The Court of Appeals then turned to the domestic violence concerns. “Father’s sister reported multiple instances over six months, but only described one event that occurred in December 2020. Father’s aunt, who lived nearby, reported there was no domestic violence. The CPS worker recognized that there were no police reports or physical injuries supporting this allegation. Even so, DHHS put Families First services in place to address healthy relationships. The Families First worker witnessed no concerning arguments between respondents and testified that respondents were accepting and receiving benefit from the services provided.”

In conclusion, “we question whether the trial court appropriately credited DHHS with reasonable efforts that were offered in the prior voluntary termination matter in this case,” the Court of Appeals said. “For these reasons, the trial court clearly erred in removing KM from respondents’ home and its order was inconsistent with substantial justice.”

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