in Re Guardianship of Wenzlick, Minor ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re WENZLICK, Minor. UNPUBLISHED
June 6, 2019
No. 345480
Ingham Probate Court
LC No. 18-000724-GM
Before: SWARTZLE, P.J., and M. J. KELLY and TUKEL, JJ.
PER CURIAM.
Appellant, Toni Ledesma (“Ledesma”), appeals by right from an order appointing
appellee, Corey M. Coleman (“Coleman”), to be the permanent guardian of LMW, a minor child.
We affirm.
I. FACTUAL BACKGROUND
LMW was born in May 2015. Both of LMW’s parents are now deceased, with the father
dying in 2016, and the mother dying on May 27, 2018. Before the mother died, she was living in
Eaton County with Coleman, her fiancé, as well as the infant son they had together, plus LMW.
On May 29, 2018, Coleman filed a petition for guardianship of LMW in the Eaton Probate
Court. On May 30, 2018, Ledesma, LMW’s paternal grandmother, filed a petition for
guardianship in Ingham Probate Court. She apparently had been taking care of LMW while
LMW’s mother was in the hospital, and LMW was physically with Ledesma when she filed the
petition. At some point, the Eaton Probate Court transferred Coleman’s petition to the Ingham
Probate Court.1
The interested persons named on Ledesma’s petition included Rebecca Olger, LMW’s
maternal grandmother, but Coleman was not listed. Ledesma listed herself and LMW’s mother
as the persons who had the care and custody of the minor for the preceding 63 days. Ledesma
1
MCL 700.5211 provides that “[t]he venue for a guardianship proceeding for a minor is in the
place where the minor resides or is present at the time the proceeding is commenced.”
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recommended herself as the proposed guardian and on May 31, 2018, after an apparently brief
investigation, she was appointed temporary guardian by the Ingham Probate Court. Ledesma
then filed a notice of hearing, scheduling a hearing on the permanent guardianship for June 29,
2018. Coleman was not officially notified. On June 13, 2018, Olger filed a counter-petition
requesting that she be appointed guardian.2 On July 2, 2018, Ledesma filed a response, denying
that Olger was fit to be guardian and suggesting that Olger’s intention was “to give the child to
Corey Coleman, who is not a relative, so that the child can be raised with her half brother.”
The court thereafter appointed an investigator. The investigator reported that Olger had
admitted that her intention was to transfer care and custody of LMW to Coleman. He
recommended that guardianship of the minor child be granted to Ledesma.
At a subsequent hearing on the guardianship petitions, Olger testified that since LMW’s
birth, she had watched LMW whenever the mother needed a babysitter. She testified that she
watched LMW every day while the mother worked and that after her grandson was born and
after the mother stopped working outside the home, she sporadically watched both children. She
considered herself a primary caregiver along with the mother. She acknowledged that she
thought the “best place” for LMW was with Coleman because of LMW’s emotional bond with
Coleman and because of her half-brother. Olger noted that she lived down the street from
Coleman and that his parents lived across the street from him, so if she became guardian, it
would be easy for all of them to visit LMW at her home.
Coleman testified that sometime between the time of the mother’s death and the date that
Ledesma filed her guardianship petition, he twice told Ledesma that he was going to pursue a
guardianship. Coleman testified that he was working at a bakery, that he had typically worked
from 4:00 a.m. to noon when the mother was alive, and that Olger would come over around 7:00
a.m. to watch LMW and the infant until he returned around noon. On most days, Coleman was
the children’s primary caregiver after noon. Coleman testified that after the mother’s death, his
parents and Olger would take turns babysitting while he was at work.
Coleman noted that the mother went to a methadone clinic for opioid addiction treatment
and that after the baby was born, she began abusing alcohol. Just before her death from
alcoholic pancreatitis, she was drinking between a pint and a fifth of alcohol every day. She did
much of her drinking at night after he and the children went to bed. He denied enabling the
mother’s drinking, although he admitted to purchasing alcohol for her on occasion.
Coleman testified that he did not use drugs or drink, although he had drunk occasionally
in the past. He acknowledged that, while the children were with their grandparents, he was
intoxicated and stepped out into the street in front of a moving car. Although he was not struck
by the car, he was admitted to a hospital because his fiancée, LMW’s mother, thought it was a
suicide attempt. The hospital diagnosed him with an “anxiety attack.” At the hearing, Coleman
2
Olger’s petition did name Coleman as an interested person.
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denied that it was a suicide attempt and cited this incident as the reason that he no longer drinks
alcohol.
Following all of the testimony, the court stated that it was tasked with appointing a
guardian who would act in LMW’s best interests, and it referenced the best-interest factors of the
Child Custody Act, MCL 722.23. The court appointed Coleman as LMW’s guardian, noting his
bond with LMW and the importance of maintaining stability in her life. The court had some
reservations about Coleman’s well-being but believed it was in LMW’s overall best interests for
Coleman to be her guardian because it would provide stability and continuity in the home life to
which she had been accustomed. The court further stated that it would be “catastrophic” to take
the minor child away from her younger sibling.
On July 23, 2018, the court entered an order appointing Coleman as the minor child’s
guardian, and Coleman signed an acceptance of appointment. On July 24, 2018, venue was
changed to Eaton County “for the convenience of the parties” due to the fact that Coleman and
the minor child lived in Eaton County. On August 6, 2018, Ledesma filed a motion for
reconsideration in Eaton County claiming, in part, that it was error to appoint Coleman as
guardian because no petition to appoint him as guardian was on file. She also indicated that she
would have raised issues with his appointment if she had known that his appointment was a
possibility. However, the court noted that Coleman’s Eaton County petition had been transferred
to Ingham County and concluded that the appointment of Coleman was sound, regardless. The
court noted that the guardianship could be revisited at a later date if there was a change in
circumstances or another reason to do so.
II. ANALYSIS
A. DENIAL OF DUE PROCESS
On appeal, Ledesma claims that she was denied due process because she was not served
with a copy of Coleman’s Eaton County petition for guardianship. She claims that the lack of
notice of his petition prejudiced her because had she known that Coleman could possibly have
been named as guardian, she would have questioned Coleman more thoroughly. While Ledesma
raised this issue in a motion for reconsideration, issues raised for the first time in a motion for
reconsideration are not preserved for appellate review. Vushaj v Farm Bureau Gen Ins Co of
Mich, 284 Mich. App. 513, 519; 773 NW2d 758 (2009). Thus, our review of this unpreserved
constitutional issue is for plain error affecting substantial rights. In re VanDalen, 293 Mich. App.
120, 135; 809 NW2d 412 (2011).
At the outset, we note that Ledesma’s position is based on a faulty premise. The Ingham
Probate Court did not rule on or otherwise consider Coleman’s petition—it ruled on Ledesma’s
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and Olger’s petitions—so the lack of notice of Coleman’s petition is inconsequential. 3 MCL
700.5213(1) requires “notice of the time and place of hearing of a petition.” (Emphasis added.)
This is consistent with MCR 5.102, which requires “notice of hearing for all matters requiring
notification of interested persons.” (Emphasis added.) Consequently, because Coleman’s
petition was not the subject of any hearing, no notice of his petition was required. Ledesma cites
no authority for the proposition that a guardianship petition (or any petition) that is not the
subject of a hearing nevertheless must be served on interested parties.
Ledesma’s position boils down to a claim that she was unduly prejudiced because if she
had known that there was a possibility of Coleman being named guardian, she would have
proffered other evidence, which ostensibly would have shown that Coleman was not the best
choice to be LMW’s guardian. Ledesma’s position, however, is not supported by the record.
First, Coleman testified that shortly after the mother’s death he told Ledesma that he was
planning to file guardianship paperwork. He testified that Ledesma did not raise any concerns
and did not object. He testified that he again told Ledesma when the paperwork was ready and
that he was about to file it. Thus, there is evidence that Ledesma had actual knowledge of
Coleman’s desire to be appointed guardian. Second, in Ledesma’s July 2, 2018 response to
Olger’s June 13, 2018 petition for guardianship, Ledesma stated that, in her view, Olger’s
ultimate desire in seeking guardianship was “to give the child to Corey Coleman, who is not a
relative, so that the child can be raised with her half-brother.” Since Ledesma admittedly
understood Olger’s pleading to mean that Coleman might obtain de facto custody of the minor
child, she was aware as early as June 13, 2018, that Coleman’s status and involvement in the
minor child’s life might be a consideration in the guardianship proceedings. She understood that
if Olger were to be appointed guardian, Olger could attempt to transfer physical custody to
Coleman. Thus, Ledesma was fully aware that if she had evidence to establish that Coleman
having care over LMW was not in the child’s best interests, she should present that evidence.
Furthermore, her counsel cross-examined Coleman at the guardianship hearing, and during
closing argument, Ledesma’s counsel pointed out supposed deficiencies with both Olger and
Coleman. Clearly, there was no purpose in counsel questioning Coleman’s fitness unless
counsel thought that Coleman could end up being responsible for LMW. Thus, the fact that
counsel addressed Coleman’s capacity to care for LMW again shows that counsel was fully
aware that Coleman’s status was pertinent.
We also note that the probate court’s choice of a guardian is not limited to a petitioner.
MCL 700.5212 states that “[t]he court may appoint as guardian a person whose appointment
serves the minor’s welfare, including a professional guardian described in [MCL 700.5106].”
(Emphasis added.) Further, MCL 700.5213(2) provides that if the petition for the appointment
of a guardian is deficient, including that the minor’s welfare would not be served by the
requested appointment, “the court may dismiss the proceeding or make another disposition of the
3
The Ingham court only acknowledged having these “two different petitions” from the “paternal
grandmother and the maternal grandmother,” and later called the grandmothers “the two
petitioners” and Coleman “a third party.”
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matter that will serve the minor’s welfare.” (Emphasis added.) Nowhere in the statute does it
limit the pool of possible guardian appointees to a petitioner, and Ledesma does not identify any
authority saying otherwise. Thus, the court has discretion to choose someone other than one of
the petitioners themselves. And this makes sense, as the purpose of the guardianship statutes is
to “promot[e] the best interests of children,” Deschaine v St Germain, 256 Mich. App. 665, 671 n
9; 671 NW2d 79 (2003), and arbitrarily limiting who can be appointed as guardian to certain
people, i.e., petitioners, does not further this purpose.
B. APPOINTMENT OF COLEMAN AS GUARDIAN
Ledesma also claims that the trial court substantively erred in appointing Coleman as
LMW’s permanent legal guardian. We disagree.
This Court reviews for an abuse of discretion a probate court’s dispositional ruling on an
appointment of a guardian and reviews for clear error the factual findings underlying the probate
court’s decision. In re Bibi Guardianship, 315 Mich. App. 323, 328-329; 890 NW2d 387 (2016).
A probate court abuses its discretion when it chooses an outcome outside the range of reasonable
and principled outcomes. Id. at 329. A probate court’s finding is clearly erroneous when a
reviewing court is left with a definite and firm conviction that a mistake has been made, even if
there is evidence to support the finding. Id.
The Estates and Protected Individuals Code (EPIC), MCL 700.5201 et seq., governs the
guardianship of minors. See 1998 PA 386. As noted above, the statute providing for the
appointment of a guardian, MCL 700.5212, states that the court may appoint “a person whose
appointment serves the minor’s welfare.” The statute does not describe the method a court
should take in determining whether an appointment would serve the minor’s welfare, but the
phrase “serves the minor’s welfare” appears to be sufficiently synonymous with “best interests of
the minor.” Cf. Deschaine, 256 Mich. App. at 671 n 9 (stating that purpose of the guardianship
statute is consistent with the Child Custody Act and is to “promot[e] the best interests of
children”).
Here, the probate court considered the best-interest factors of the Child Custody Act,
which are outlined in MCL 722.23. The parties do not contend that this was improper. Indeed,
these same best-interest factors are codified in EPIC under MCL 700.5101 and are applicable for
“parts 1 to 4” of article V; and part 2 of article V covers guardians of minors. See 1998 PA 386;
MCL 700.5201 et seq.
The probate court found that the best interests of LMW were served by Coleman being
named her guardian. The court noted that LMW was only three years old and had lived with
Coleman and her mother for the two years prior to the mother passing away. Thus, the court
found that LMW naturally looked to Coleman as a father figure and had an associated bond with
him. See MCL 700.5101(a)(i) (factor involving emotional ties to child). The court also noted
that Coleman had exhibited “a good capacity and disposition to provide for [LMW].” See MCL
700.5101(a)(ii) and (iii) (factors involving capacity and disposition to raise child). The court
also found that because LMW had lived with Coleman for the previous two years, there was
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stability in that environment. See MCL 700.5101(a)(iv) and (v) (factors regarding length of time
the child has lived in a stable, satisfactory environment and the permanence, as a family unit, of
the existing and proposed custodial home). The court again stressed that LMW has already lost
her mother, her father, and the only other parental figure she has is Coleman, and the court did
not want her to lose that as well. See MCL 700.5101(a)(i) and (v). Finally, the court noted that
Coleman and LMW’s mother had a child together, LMW’s step-sibling. The court found that if
LMW were placed with anyone but Coleman, she would be subjected to not being with her
younger sibling, which the court categorized as “a complete catastrophic event.” See MCL
700.5101(a)(v) and (l).4
Ledesma, on appeal, does not take issue with any of these findings, except to allege that
Coleman did not help with LMW’s mother’s substance-abuse problem and, in fact, had enabled
her addiction to alcohol. Ledesma also points out that Coleman, himself, got drunk and was
admitted to a hospital as a result of his intentionally stepping in front of an oncoming vehicle.
However, the court acknowledged and considered all of these facts. The court did find
that Coleman had enabled LMW to have alcohol. The court also acknowledged that Coleman
did get drunk one time “and apparently stumbled out in front of a vehicle.” But the court noted
that there was nothing definitive to show that this was a suicide attempt. In all, the court found
the incident “unremarkable.” Based on our review of the record, the court’s findings for these
matters were not clearly erroneous. Coleman testified that while others perceived this incident
with the car as a suicide attempt, he denied that was his intention. Moreover, Coleman stated
that this incident was a catalyst to make him stop drinking.
We conclude that, on balance, the probate court’s finding that the appointment of
Coleman as guardian of LMW was in LMW’s best interests was not clearly erroneous. While
there were some concerns with Coleman, the court considered them and still determined that the
overall best interests were satisfied. The court clearly gave a great amount of weight to
preserving some sense of stability, permanence, and familial bond with LMW after she had lost
both her parents. See Berger v Berger, 277 Mich. App. 700, 705; 747 NW2d 336 (2008) (stating
that a “trial court has discretion to accord differing weight to the best-interest factors”). We
perceive no clear error. Accordingly, the court did not abuse its discretion in appointing
Coleman as LMW’s guardian.
4
While the court connected this fact with the catch-all best-interest factor described in MCL
722.23(l) and MCL 700.5101(a)(xii) (“Any other factor considered by the court to be relevant to
a particular dispute regarding termination of a guardianship, removal of a guardian, or parenting
time.”), it would seem to apply to MCL 700.5101(a)(iv) (length of time the child has lived in a
stable, environment) and (v) (permanence, as a family unit) as well.
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Affirmed.
/s/ Brock A. Swartzle
/s/ Michael J. Kelly
/s/ Jonathan Tukel
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