Thomas J O'Brien Jr v. Ann Marie D'Annunzio ( 2020 )

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
THOMAS J. O’BRIEN, JR., UNPUBLISHED
February 27, 2020
Plaintiff-Appellee,
v No. 347830
Oakland Circuit Court
ANN MARIE D’ANNUNZIO, Family Division
LC No. 2004-693882-DC
Defendant-Appellant.
Before: MURRAY, C.J., and SAWYER and GLEICHER, JJ.
GLEICHER, J. (dissenting).
Defendant-mother Ann Marie D’Annunzio has not parented her children in more than two
years. Mother has not been adjudged unfit, and no evidence in the voluminous record even hints
at unfitness. Without benefit of an evidentiary hearing and based on unsubstantiated allegations
reinforced by improper off-record communications, the trial court suspended Mother’s parenting
time. Fifteen months elapsed before the trial court rendered an opinion stripping Mother of custody
and denying her any opportunity to visit or communicate with her children.
The lead opinion affirms, characterizing the trial court’s multiple, serious legal errors as
“harmless.” I respectfully disagree for three reasons: several of the errors were egregious and far
from harmless; the great weight of the evidence contravenes many of the trial court’s findings; and
the trial court abused its discretion by depriving Mother of parenting time. Rather than working
toward reunifying this family, the record substantiates that the trial court displayed an unbridled
animosity toward Mother and likely will never allow her to regain even the barest contact with her
children. I would remand for entry of an order requiring immediate efforts at reunification
conducted by a therapist selected from outside the court, and prompt reassignment to a new judge.
I
Certain fundamental legal principles faded into the background during this protracted and
contentious case. First and foremost:
Parenting time shall be granted in accordance with the best interests of the child. It
is presumed to be in the best interests of a child for the child to have a strong
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relationship with both of his or her parents. Except as otherwise provided in this
section, parenting time shall be granted to a parent in a frequency, duration, and
type reasonably calculated to promote a strong relationship between the child and
the parent granted parenting time. [MCL 722.27a(1) (emphasis added).]
The right to parenting time may be withdrawn only when clear and convincing record evidence
demonstrates that parenting time “would endanger the child’s physical, mental, or emotional
health.” MCL 722.27a(3) (emphasis added). The meaning of these legislative commands cannot
be emphasized strongly enough. Children have the best chance to grow into healthy adults when
they have relationships with both parents. Depriving a child of a parent, and a parent of a child, is
a drastic measure that should be undertaken only under the direst circumstances, and in a process
that strictly conforms with the rules. This case comes nowhere close to fulfilling those
prerequisites.
Second, our Legislature has enacted a statutory framework designed to protect parents’ due
process rights in custody disputes. One such procedure, MCL 722.27(1)(c), empowers a circuit
court to “modify or amend” previous judgments or orders conditioned on a showing of proper
cause or changed circumstances. Our Supreme Court has described as “critical” that courts
“carefully and fully comply with the requirements of MCL 722.27(1)(c) before entering an order
that alters a child’s established custodial environment.” Daly v Ward, 501 Mich. 897, 898; 901
NW2d 897 (2017). In Daly, Supreme Court emphasized that a child’s established custodial
environment should not be changed absent “clear and convincing evidence” that doing so “is in
the best interests of the child.” Id. The Supreme Court highlighted that “[t]his heightened
evidentiary burden for altering a child’s established custodial environment recognizes the
commonsense proposition that a child benefits from the permanence and stability of an established
custodial environment, and therefore that such an environment should not lightly be altered.” Id.
Although a trial court may enter an order upsetting a child’s established custodial environment ex-
parte, it may not do so “without first making the findings required by MCL 722.27(1)(c).” Id.
The Supreme Court issued its order in Daly on October 13, 2017. The trial court in this
case entered a temporary order changing the children’s established custodial environment and
suspending Mother’s parenting time on November 6, 2017, without holding or even scheduling an
evidentiary hearing. The order reflects that the “evidence” on which the court relied was an
“interview[]” it conducted with Father off-the-record. Based solely on Father’s unsubstantiated
allegations, the order prohibited Mother from “appearing at the children’s school” or having any
contact with the children “in any fashion.” On November 15, again without taking a shred of
evidence or making the requisite findings, the court “extended” its November 6 order. These
orders defied Daly. And they produced lasting and tragic consequences.
This case exemplifies what happens when a trial court ignores the rules. Without benefit
of a hearing, the trial court unhesitatingly accepted inflammatory and, as the actual evidence later
revealed, exaggerated or false allegations set forth in an emergency motion. From the moment the
trial court took away Mother’s right to have a relationship with her children, Mother was on the
defensive. She was forced to refute or rebut allegations that had never been verified with
admissible evidence or tested with cross-examination. And yet the trial court dug in, finding fault
with virtually every attempt Mother made to reestablish a relationship with her children. By
denying Mother any parenting opportunity without benefit of a hearing and relying instead on
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impressions gleaned from information imparted off the record, the trial court became a driving
force in the deterioration of the parent-child relationship.1
Aside from the fact that basic due process principles mandate a hearing before a parent’s
right to the custody of her children is withdrawn, perhaps another reason that our law requires an
evidentiary hearing before a custodial change stems from the power of first impressions. The facts
alleged in Father’s emergency motions portrayed Mother as a dreadfully unstable harridan who
constantly placed her children at substantial risk of physical and mental harm. This was effective
advocacy, but proved far from true.
The extensive hearings eventually conducted consume more than 1,000 transcript pages.
The process of taking testimony started in March 2018 and continued sporadically for the next six
months. An enormous amount of evidence was gathered, much of which described events that
occurred well after father’s emergency change of custody motions had been granted. The initial
legal questions concerning the children’s established custodial environment were lost in the
ensuing evidentiary abyss.
That is why timely evidentiary hearings play a vital role in evaluating the need for a
custodial change. As this case epitomizes, there is a natural danger that the first message received,
especially when bombastic or shocking, will retain a disproportionate impact on a judge’s ultimate
opinion.2 Negative first impressions can create long-lasting, unshakeable biases and prejudices
(also known as confirmatory bias). Therefore, the taking of actual evidence, under oath and subject
to cross-examination, is critical before life-changing judgments are rendered.3 After all, once a
1
The lead opinion takes issue with using the term “ex-parte” to refer to the substantive
conversations the trial court had concerning Mother with Family Court personnel. This is much
ado about nothing, as conventionally the term is used in our caselaw to describe such
communications. See In re HRC, 286 Mich. App. 444, 451; 781 NW2d 105 (2009) (“An in camera
interview is an ex parte communication that occurs off the record in a judge’s chambers and in the
absence of the other interested parties and their attorneys.”).
2
“Impression formation is often subject to a primacy effect, when early information has a
disproportionate influence on judgements . . . . The disproportionate influence of first impressions
is one of the most robust and reliable effects distorting such judgments.” Forgas, Can Negative
Affect Eliminate the Power of First Impressions? Affective Influences on Primacy and Recency
Effects in Impression Formation, 47 Journal of Experimental Social Psychology 425, 425, 427
(2011). See also Garner, The Psychology of Credibility: First Impressions Endure, Even in Brief
Writing, 101 ABA Journal 24 (May, 2015).
3
“Confirmatory bias” is “the desire to identify data that support an initially developed hypothesis.”
“[C]onfirmatory distortion” involves “overconfidence in the accuracy of one’s initial hypotheses,”
which leads to an intentional selection of data “to be considered and to be reported.” Martindale,
Confirmatory Bias and Confirmatory Distortion, 2 Journal of Child Custody 31, 44 (2005).
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court peremptorily changes a child’s established custodial environment, is it surprising that 15
months later the court will reaffirm that it did the right thing?
I cannot regard the trial court’s initial legal error as “harmless,” as its consequences flowed
into its final decision and poisoned the well. Not only were the children removed from Mother’s
home; before depriving Mother of any contact with her children, Mother was prohibited from
seeing them except under supervision, a decision made before the court heard from any health
professionals. The message this arrangement sent, even to a 13-year-old, is unmistakable:
something is terribly wrong with Mother. And for a 13-year-old girl at war with her mother
anyway, the trial court’s ruling was an invitation to continue and escalate the conflict. As Father
readily admitted, in his house there are no rules.4 It does not take a degree in child psychology to
understand what every parent knows: teenagers prefer making their own decisions and running
their own lives to having a parent enforce familial law and order. Or, as the court-appointed
psychologist later put it: “All teenagers are rebellious.” This characterization is particularly apt
when it comes to cell phones and social media, which are at the heart of this case.
The concurring opinion stresses that decisions involving parenting time and custody are
shielded from exacting review by the abuse of discretion standard, that the trial court saw and
heard the witnesses while I did not, and that my review of the evidence is “one-sided.” The
questions at the heart of this case, however, are legal rather than factual. The court ignored the
rules governing the process the Legislature created for requested parenting-time and custody
changes. The distorted process created a distorted result—findings inextricably tainted by later
events.
The concurring opinion insists that “it is impossible for an appellate court to disregard a
trial court’s finding that one of the party’s testimony ‘vacillated between laughing, crying, tense,
and calm seemingly independent of anything occurring in the courtroom.’ ” I have no reason to
dispute the trial court’s personal interpretation of Mother’s demeanor. The trial court described
Mother’s deportment when Mother testified in a courtroom many months after she had lost her
right to parent her children. During those intervening months, Mother had been repeatedly
described as crazy by Father, and characterized as desperately in need of intense mental health
4
At trial, Father testified:
Q. What rules does [IDO] have in your household?
A. I mean I don’t have rules.
* * *
Q. What kind of rules do you have regarding Xbox usage for [GDO]?
A. I don’t have rules. He’s responsible for his playing time.
-4-
intervention both by Father and the trial court. Every motion Father filed further humiliated and
debased her.
I assume that the trial court’s description of Mother’s testimony was accurate. Who
wouldn’t feel desperately sad and intensely anxious under the circumstances, especially given that
the trial court had already telegraphed its impression that Mother was nuts? Mother’s demeanor
as a witness in the spring of 2018, however, has no bearing on whether proper cause or changed
circumstances existed in November 2017. Too much poisoned water had flowed over the dam.
That Mother had an argument with IDO and that IDO behaved poorly and ran away does not does
not supply clear and convincing evidence that a modification of custody or parenting time was
warranted. That Mother yelled at the IDO on a few memorable occasions and took away her cell
phone does not rise to the necessary level of life-effecting, significant change.5
Aside from improperly depriving Mother of custody and parenting time in November
2017—an error the lead opinion acknowledges, characterizes as “clear,” but brushes aside—the
evidence does not support the trial court’s best-interest findings. The trial court’s opinion has a
decidedly agitated tone, bordering on hysterical. It portrays Mother as a source of “wildly
misleading and nonsensical testimony” who behaves in a “juvenile, harassing, and utterly bizarre”
fashion, and is “physically and emotionally abusive.” According to the trial court, Mother’s
behaviors are so “unconscionable” that the court “question[s] her morality.”
Two mental health professionals evaluated Mother. Neither characterized her in a manner
even remotely consistent with the trial court’s description, and neither found that she posed a
danger to her children. A few examples of the court’s “fact finding,” detailed below, illustrate the
disingenuous manner in which the trial court approached its role. Rather than evaluating the
evidence in a neutral fashion, the judge demonstrated animosity toward Mother that it made no
effort to disguise. This animosity, in my view, cannot be turned on and off like a light switch. The
trial court’s opinion is dripping with anger and hostility, and it is impossible to expect that
sometime in the future, the court will magically remove those views from its mind.
The lead opinion holds that in addition to improperly altering the children’s established
custodial environment without holding a hearing, the trial court committed several additional legal
errors. I agree. I respectfully disagree with the lead opinion’s conclusion that all of the circuit
court’s errors are “harmless.” The most egregious error was committed at the outset, when the
court changed the children’s established custodial environment without a hearing. This error was
far from “harmless,” for the reasons discussed above and in more detail throughout this opinion.
But the other errors were far from benign. As the lead opinion acknowledges, the trial court
5
The concurring opinion’s ode to the abuse of discretion standard is misplaced for a second reason.
My criticisms of the trial court spring primarily from the trial court’s inaccurate and unsupported
fact finding. That task is not reviewed for an abuse of discretion. “[A] court's discretion in
weighing the evidence regarding a particular factor is not unlimited; rather, it must be supported
by the weight of the evidence.” Fletcher v Fletcher, 447 Mich. 871, 881; 526 NW2d 889 (1994).
Regardless of the number of pages the trial court put into its effort to permanently deprive Mother
of custody and parenting time, its findings of fact had very little to do with the actual evidence.
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wrongfully prevented disclosure of the Friend of the Court (FOC) reports; improperly admitted
and relied on text messages submitted after the close of the evidence, improperly denied Mother’s
request for the raw data underlying Dr. Green’s report; and improperly limited Mother’s cross-
examination of Dr. Green. These errors combined to hamstring Mother’s ability to defend herself
at the trial. I would add to that list the following: after improperly and injudiciously removing the
children from Mother’s physical custody and terminating her parenting time, the court utterly
failed to expedite the matter. As a result, a four-month delay ensued before the required custody
hearing even commenced. The hearing itself stretched over eight months. And it took the court
three more months to write an opinion. All the while, Mother was prevented from visiting with or
even contacting her children.
Singularly and in combination, the trial court’s errors warrant reversal.
II
My elucidation of the harmful impact of the trial court’s rulings requires a brief review of the
background facts. The parents never married or lived together. Mother had sole physical custody
of the parties’ twin children until the 2017 order at the center of this case. Father had liberal
parenting time. The parties occasionally quarreled about parenting time issues between 2004,
when the children were born, and 2017. But no major changes were made. Mother retained sole
physical custody.
The events culminating in the court’s order began with a July 2017 “sleepover” at Mother’s
home. Sometime after midnight, Mother discovered that 13-year-old IDO and the girl’s friends
had covered the dining room with shaving cream so that they could “skate” in it. Mother lost her
temper and shouted at the girls. She used profanity. IDO was embarrassed and angry.
IDO’s relationship with Mother was already on thin ice due to their conflicts regarding cell
phone usage and social media rules. A month or so before the shaving cream debacle, Mother had
asked Father for the passwords for the cell phones Father had purchased for the children. Father
replied: “I don’t have passwords. They do.” Mother repeatedly expressed concerns about IDO’s
use of Instagram and other social media applications. Both Father and IDO rebuffed her. Yet
Mother’s concerns were not unfounded. In early September 2017, Mother found the following
text messages on IDO’s phone: “How old r u;” “Your cute and I wanna seem them nudes mama;”
“Dont tell me what to do bby girl.” Mother was also concerned about her son’s frequent use of
violent content on his XBox, and attempted to put herself on the account to monitor his use of it.6
6
This Court recently highlighted the dangers of uncontrolled social media use by teenagers. In re
JP, __ Mich App __; __ NW2d __ (Docket No. 344812, 2019). In this case, the trial court was
“shocked” that Mother added herself to her son’s XBox account, in part because doing so “publicly
humiliated” the 13-year-old. I suggest that a parent has a right to add herself to a gaming account
and that courts should tread very carefully before implying otherwise. Parents frequently make
“oversight” decisions regarding their children’s social media and internet experiences. Judicially
faulting a parent for doing so is concerning.
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Strife between Mother and her 13-year-old daughter escalated in late August 2017, when
Mother denied the girl’s request to go to a friend’s house. IDO defied her mother and left anyway.
Mother followed in her car as IDO walked or ran through the neighborhood. When Mother was
able to confront IDO at a neighbor’s home, she asked IDO to hand over her cell phone. IDO
refused. Mother reached around the child from behind and took it from her.
During her flight, IDO sent her father a stream of text messages, including: “Mom wouldn’t
let me leave so I just [ran] away again. Being in that house is making me go crazy. . . . She’s
following me in her car. . . . I can’t control what I say to her I just keep screaming. . . . I don’t
want to stay at moms anymore seriously[.] She scares me and she makes me go insane[.] Like I
can’t control myself anymore. . . . It didn’t hurt but she wrapped her arms around me and throwing
me around to get my phone.” Father called the police. This event featured prominently in his
emergency motion to change custody and to immediately suspend Mother’s parenting time.
When the responding officer finally testified seven months later, he described the situation
as nonemergent, “just an argument,” and Mother as “polite” and respectful. When asked about
Mother’s mental state he testified: “I haven’t seen Ms. D’Annunzio act in a way that would give
me any type of impression that she is crazy. My conversations with her have been brief and to the
point.”7
In August 2017, Father withheld the children following the end of his parenting time, and
Mother filed an emergency, ex-parte motion, pro se, to enforce the court’s order. The trial court
instructed her to praecipe the motion for a motion call and to serve Father. Father then filed a
motion seeking an emergency hearing, a change of custody, and “an independent psychological
exam of Mother.” Father’s allegations included the following:
 “[T]here is a long history of instability in Mother’s life and it has escalated dramatically
in the very recent past;”
 “The children are now unsafe and in a state of complete emotional upheaval fleeing
Mother’s residence regularly;”
 “It is believed that her ex-husband will testify as to her volatility and frightening behavior
towards the children, especially their daughter. Unfortunately he is no longer in the home
to help protect the children.”8
7
Father called the police again a few days later to report that Mother was allegedly videotaping
him while he walked his dog. That officer agreed under oath (seven months later) that Mother was
appropriate, not rude, and that the officer had no reason “to question her mental health.”
8
Rather than waste pages discussing the ex-husband’s testimony in any detail, suffice it to say that
this allegation proved 100% wrong. The ex-husband testified to exactly the opposite: that Mother
had a good relationship with the children while he was around, and asserted: “I thought she was a
good mother. . . . [S]he was very loving and cared for her children, looked after them.” He
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 “Mother has a history of losing her temper beyond the point of control. Father believes
that Mother suffers from a psychological condition making it impossible for her to control
her behavior. There are recordings of her screaming at the children that illustrate
Mother’s inability to control herself. It can only be classified as rage.”9
The trial court referred the matter to an FOC referee, who apparently recommended
approximately equal parenting time (the report is not in the record). The trial court rejected this
recommendation, despite that counsel had reached an agreement that Mother would be involved
in parenting the children. The trial court rejected that agreement as well, announcing that the
children’s reactions were “not normal” and that they might not “do very well” if forced to visit
with their mother.
In making its decision, the trial court relied heavily on information provided off-the-record
by Kathleen Doan, whom the court identified as “my family counselor.” Doan met with the parents
twice and the children once. She then communicated verbally with the court and wrote a brief letter
to the court describing Mother as “rude and confrontational.” Moreover, Doan asserted that
“[b]ased on information I have received from Children’s Protective Services [CPS], School
Counselor from Bloomfield Hills Middle School, information provided by parents and personal
observations of [Mother’s] behavior, I am recommending she have a complete psychological
evaluation and take parenting classes.” Doan further recommended that the court grant Father sole
legal and physical custody of the children, and indefinitely suspend Mother’s parenting time.
Remarkably, Doan never testified at the beginning of these proceedings, or during the
lengthy trial. Her opinions were never subjected to cross-examination. But their underpinnings
were examined in great detail. The CPS worker did not support Doan’s view of the situation, and
neither did the school counselor. Again, this is why the law (and basic due process principles)
require hearings in open court and eschews hearsay-driven decision making. The lead opinion
papers over with a stamp of “harmless” both the court’s violation of the law and the fact that if
gathered in November 2017, the evidence would have shredded Doan’s conclusions and exposed
her bias. By relegating the trial court’s errors to the realm of the inconsequential, the lead opinion
invites the trial court to do it all again.
believed the children were “safe” with Mother and never witnessed any “frightening” behavior
when the children were present.” He read into the record a letter he wrote in which he stated: “I
can honestly say that her relationship with the children . . . could be characterized as very normal.”
9
Father works at a landscaping company and possesses no degrees or training in any relevant
mental health discipline. He has insisted throughout the proceedings (without expert support of
any kind) that Mother suffers from “borderline personality disorder,” cannot “control her temper
in any way,” “there’s some type of personality disorder that causes her not to be rational and react
in ways that are frightening,” and that she needs a new psychiatrist and a different therapeutic
approach. Based on these perceptions, he believes that his children’s “fears” of their mother are
“rational.” None of the professionals who have examined Mother share his views or his
“diagnoses.”
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III
The 1,000 pages of transcript detail (among other things) virtually every disagreement
between IDO and her mother between August and November 2017. The record is replete with
copies of emails and text messages between the parties and the therapists. Multiple motions flew
back and forth, one more histrionic than the last. Several expert witnesses from various disciplines
became involved.
There can be no doubt that Mother occasionally lost her temper and shouted at IDO. Their
relationship was strained, largely due to their conflict over cell phone and social media use. Parents
should not yell, scream, or swear at their children. But sometimes, they do. Good parents,
overwhelmed with the stress of parenting, may yell, scream and swear. But occasional episodes
of yelling, screaming and swearing do not provide a rational basis to deprive a parent of her child’s
custody. Period. As this Court put it recently:
A parent that yells and swears at his or her child, stands over them, and invades
their personal space, can fairly be characterized as a less than ideal parent. But that
fact standing alone does not prove a parent’s unfitness under MCL 712A.2(b)
because it is insufficient to show that there is “a substantial risk of harm to [the
child’s] mental well-being.” Nor does it establish that the child’s home
environment is an unfit place because of the parent’s neglect, cruelty, drunkenness,
criminality, or depravity so as to allow the court to assume jurisdiction under MCL
712A.2(b)(2). Something more than yelling and swearing is necessary to prove
parental unfitness. [In Re Kellogg, __ Mich App __; __ NW2d __ (Docket No.
349930, 2020), slip op at 4.]
Mother never physically harmed her children in any way. More importantly, none of the
therapists who actually examined Mother supported that she posed any danger to her children.
This central fact was utterly ignored by the trial court, which found to the contrary despite that the
evidence did not support denying mother all parenting time. And here is the larger point. Mother
yelled, screamed, and appeared to her daughter as insensitive. In retrospect, she may have said
things she should not have—what mothers haven’t? But none of Mother’s parenting “crimes”
(most of which stemmed from her desire to police her children’s use of their devices) warrant the
punishment she has endured.10
The trial court determined that Mother was emotionally unstable and that due to her
instability, she is “physically and emotionally abusive.” These findings serve as the unifying
theme of the court’s best-interest findings. The court further determined that any parenting time
with Mother would “endanger the [children’s] physical, mental, or emotional health.” The
testimony does not support these conclusions. Further, the trial court’s recapitulation and summary
10
For example, I find it incomprehensible that Mother could be faulted for following her daughter
by car as the child fled Mother’s home. There is no evidence whatsoever that this endangered the
child. I can only imagine how Mother would have been punished if the child had been injured or
harmed in her flight and Mother had done nothing to stop her.
-9-
of the evidence was disingenuous at best. A review of the evidence supports that the trial court
made up its mind at the outset of the proceeding and simply disregarded that the bulk of evidence—
particularly that provided by professionals—contradicted the court’s preferred narrative.
My review focuses on two areas: the evidence that would have been available had the trial
court conducted an evidentiary hearing when it should have, and the evidence subsequently
gathered by mental health professionals.
A
The three somewhat disinterested witnesses who could have enlightened the court before
it took peremptory action were Aaron Sparks, the police officer involved in IDO’s running-away
escapade, Kari Sweeny, who responded after several other police contacts, and the CPS worker
who investigated the situation shortly thereafter.
The trial court’s review of Sparks’ testimony recites that Father had called for police
assistance, reporting to the dispatcher that a child “had walked away from their mother’s home.”
When he arrived at the home of one of IDO’s friends, Sparks found IDO crying and concluded
“that she was upset with mother to the extent that [IDO] needed to walk away to deescalate the
situation.” The two had engaged in a “ ‘brief struggle’ over a phone,” the court wrote, and Mother
had “closely followed behind [IDO] while she walked away from mother’s home.” According to
the trial court’s summary, Sparks expressed that IDO’s “fear seemed rational given the
circumstance.”
The information the trial court omitted included Sparks’ opinion that: this was “just an
argument;” there was no cause to report anything to CPS he never saw Mother “act in a way that
would give me any type of impression that she is crazy;” she was “respectful;” and that all of
Sparks’ ”opinions” about what had happened that day were drawn solely from talking to Father
(who was not present and did not witness the events) and IDO. In Sparks’ estimation there was
no reason that the other child, GDO, could not remain with his mother.
It is difficult to understand why the police were called to respond to an argument between
a mother and her 13-year-old daughter. It is even more difficult to understand how this event could
generate a legal basis to deprive a mother of her child’s custody, given that parents have a right
(and a duty) to follow their runaway children. That IDO was upset after an argument is
understandable, but nothing in Sparks’ testimony supports that IDO’s decision to run away was
either justified or deserving of official approval.
A second police officer, Kari Sweeney, was involved in three other police contacts that
Fall: one initiated by Father, and two by Mother. The trial court’s opinion discusses the first,
initiated by Mother after IDO ran away a second time following an argument about cell phones
(and given that there were no negative consequences for IDO the first time, why not run away
again?). When Sweeny located the children at Father’s home and spoke with IDO, the court’s
opinion declares, Sweeny “stated that [IDO] appeared upset, and seemed fearful of mother, during
her interview. Officer Sweeny stated that [IDO]’s fears seemed rational.”
-10-
On cross-examination, however, Sweeny admitted that she observed no reason that IDO
should have felt unsafe with her mother, and that based on her investigation she had no reason to
credit IDO’s fear with any “veracity,” despite Father’s statement that “something could be off
mentally” with Mother. The trial court also neglected to mention that Sweeny testified that Mother
was never rude, her emotions were appropriate, and that during their interactions Sweeny never
had a reason to question Mother’s mental health. Sweeny also agreed that she detected no reason
for the children to fear that their mother would physically harm them, and discerned no basis to
contact CPS. Rather, Sweeny affirmed that Mother always presented as “a concerned mother”
who “loved her children.” Sweeny testified that she had no concerns that Mother’s “reactions to
the situations were inappropriate.”
The next person who could have weighed-in during a timely hearing was Jessica Spigner,
the CPS worker who responded to a complaint for investigation received in October 2017. Here
is what the trial court wrote regarding Spigner’s testimony:
She stated that the allegations against mother involved physical abuse, such as using
her vehicle to run over [IDO], improper supervision, and emotional abuse. Ms.
Spigner testified that she did not substantiate the physical abuse or improper
supervision allegations, because the children were placed with father at that point,
but that she would have substantiated the emotional abuse allegations had the
children stayed with mother. [Emphasis in original.]
Spigner’s actual testimony does not comport with this portrayal:
Q. And did you interview the minor children?
A. I did.
Q. And did you observe the conditions of mom’s household?
A. Yes, both parents’ household.
Q. Okay. And how was mom’s household?
A. Mom’s household was appropriate.
Q. Okay. Do you know specifically what the allegations were with regard
to mom?
A. They were [sic] a cell phone was involved. Mom was going to run the
daughter over with the vehicle. Trying to jog my memory completely back. I did
review.
Q. What --
A. And that there was like a physical abuse that mom pushed her daughter
about a few months ago.
-11-
Q. Okay. And when – after you’re completing your investigation were you
able to substantiate any of the complaints?
A. I was not able to due to that the children were placed with dad.
Q. Okay. Did you . . . make a finding that . . . mom had tried to run over
the child with a car?
A. I did not.
Q. Did you make a finding that mom had perpetrated any physical abuse
against the child?
A. No.
* * *
Q. And just to clarify, you’re not saying that if the children had remained
with mom that you were going to substantiate, is that what you’re testify to today?
A. If they were to remain with mom we would have had an open case, so
yes we would.
Q. You would have substantiated?
A. Yes.
Q. And what would you have substantiated for?
A. More so of a mental injury, emotional abuse.
Q. But isn’t it true that the child’s treating counselor would not sign off on
there being a mental injury in this case?
A. She would not send the paperwork, but she did a verbal, but yes.
Q. Isn’t it true though she would not?
A. She would not.
Q. She would not. So what would be the basis for your, your report then?
A. For to have – to be with mom it would just basically have services put
in so that it would be able to benefit mom and the children so they can communicate
better.
Q. Okay.
A. So there’s not another issue.
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Q. Okay. So you were – your conclusion was that the parent, that mom and
the child were having – and the children were having communication issues?
A. Yes, it seemed like that.
* * *
Q. Were the communication issues only mom’s fault?
A. I can’t say yes or no to that. I’m sorry.
Q. What would have been your recommendations if the children had still
been placed with [Mother]?
A. We would have provided services.
Q. What kind of services are you speaking of?
A. In-home services, parenting, have providers come to the home once a
week to work on communication and basically keep the children in therapy.
Notably, Spigner did not testify that she found any ground for removing the children from
their mother’s care and custody, and nothing in her testimony is consistent with her having so
recommended. Rather, Spigner offered that if the children had stayed with Mother, she would
have recommended “services” to improve “communication.” Obviously, Spigner had no concern
that the children would be in any danger in Mother’s home. Moreover, the trial court’s
characterization of this testimony as “substantiation” of “mental abuse” is legally incorrect.11
The CPS Field Guide provides that “[a] preponderance of evidence of mental injury can
only be found if a mental health practitioner outside of DHS either diagnoses a psychological
condition or determines that the child is at significant risk of being psychologically or emotionally
injured/impaired resulting from the parent or person responsible’s actions.” Department of Human
Services, Field Guide: Children’s Protective Services Investigations, DHS Pub 108 (October
2008), p 27. Spigner’s admission that the “child’s treating counselor would not sign off” means
that Spigner could not have substantiated mental abuse even if she had wanted to do so.12
Given the testimony of these three witnesses, I am hard pressed to find any evidence, let
alone clear and convincing evidence, that Mother posed a danger to her children. It is certainly
11
Remarkably, the trial court understood this point at the hearing. In response to an objection to
a question posed by Mother’s counsel, the trial court stated: “Well I think she testified that . . . she
didn’t substantiate and they put no services in the home[.]”
12
Spigner’s notes, which she read into the record, reference a conversation Spigner had with the
children’s then-therapist, Dr. Sucher. Spigner claimed that Dr. Sucher verified mental abuse on
the phone, but admitted that Dr. Sucher refused to do so in writing. Dr. Sucher never testified, and
her notes are not part of the appellate record.
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apparent that Mother and IDO did not get along. Therapy and communication “services” were
warranted. Their disagreements, however, did not give rise to a legitimate basis for stripping
Mother of both physical and legal custody and all parenting time.
B
The trial court’s final opinion and order reflect a conclusion that Mother is seriously
mentally ill. Indeed, the court expressed that any parenting time with her would “endanger the
children’s physical, mental or emotional health.” The trial court reached these conclusions by
disregarding the testimony of the mental health professionals who actually evaluated Mother. The
great weight of the evidence preponderates in the other direction: that Mother’s psychiatric
diagnoses do not call into question her ability to safely parent her children.
Two mental health professionals provided testimony regarding their evaluations of Mother.
Dr. Bering, the children’s pediatrician, also testified as an expert, although he has never formally
evaluated Mother psychologically. For years, however, he observed first-hand her interactions
with her children.13 The testimony of the other professionals is important for two reasons. First,
the experts who have examined Mother provided the most reliable evidence of her mental and
emotional conditions. Second, a prodigious amount of testimony was supplied by the children’s
therapist, Katrina Popovic. Popovic admitted that she never established a therapeutic relationship
with Mother. She ultimately admitted that she harbors a bias against Mother, believes Mother to
be mentally unfit, and confirmed that the children share that view. Popovic recounted that the
children “have made it quite clear that [IDO] was pretty vocal about it in our last session that if
[Mother] were to agree to pretty intensive therapy and possible medication, anything to help her
that help them [sic] that she would be more open to establishing a relationship with her.”
Although Popovic agreed under cross-examination that she did not think it was “right” for
the children to “dictat[e]” their mother’s therapy, the trial court embraced the underlying concept.
The court opined that Mother has “little desire to be a parent,” and that her “intentionally
antagonistic, spiteful, and emotionally damaging behavior inflames the interpersonal conflict she
has with father and also the relationship she has with the children.” The court’s opinion quotes at
great length from Popovic’s notes, concluding: “[t]he court simply cannot find mother’s bizarre
actions to be logical or designed to further the best interests of her children.” The court concluded
that mother’s future parenting time is contingent on the children’s desire “to reinstate contact” and
whether reinstating contact would be in their best interests.
13
Dr. Bering also evaluated the children at the request of CPS. Almost a year later when he
testified, Dr. Bering emphasized that his notes did not reflect that Mother had caused a mental
injury to her children. Dr. Bering advised the court that if he had detected a mental injury, he
would have noted it. He explained that it is common for 13-year-old girls to have disputes with
their mothers, particularly over cell phone use, and affirmed that after examining the children he
had no reason to believe that contact between Mother and her children would have endangered
their mental or physical health.
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The testimony of the mental health experts best positioned to evaluate Mother’s mental
health paints an entirely different picture.
Dr. Scott Allen has been Mother’s treating psychiatrist since 2013, and has seen her on a
regular basis since then. He testified that Mother has attention deficit/hyperactivity disorder, major
depression recurrent and in partial remission, and post-traumatic stress disorder (it bears mention
that Mother was undergoing treatment for Stage III breast cancer throughout the time of these
events). Dr. Allen’s treatment consists of psychotherapy and several medications. He testified
that he has observed in Mother “no evidence of physical violence or intent to do or wish to do so
to any other person,” and never detected that she would pose a threat “either emotionally or
physically to her children.” Although Mother has a “strong personality” and sometimes speaks
“intently and intensely,” she has never come “close” to yelling at him. His impression of her
parenting style is that “she sets limits and that there are consequences when the boundaries or
limits are overstepped.” Dr. Allen never detected any fabrication on Mother’s part and concluded
that she had no psychiatric impairment that would affect her ability to parent her children.
Pursuant to a court order, Mother was also evaluated by Dr. Linda Green, a psychologist
employed by the Oakland County FOC. Dr. Green testified that she found Mother “well
controlled, motivated, [and] invested” during the evaluation. She never raised her voice, did not
express anger, and Dr. Green found Mother to have been “honest” with her. Dr. Green
administered a number of tests and interviewed Mother at length. She testified that she did not
diagnose any mental illness.
In Dr. Green’s view, Mother sometimes “has difficulty modulating her response to conflict
particularly when it involves her family and her children,” and “at those times has been known to
have exaggerated responses.” That information, Dr. Green explained, derived from reports written
by other people, and was not based on her own evaluation. Dr. Green herself did not observe any
behavior outside the norm, and agreed with Dr. Allen that Mother suffered from no psychiatric
impairment in her ability to parent her children. According to Dr. Green, Mother is motivated to
resolve the conflict with her children. While the trial court concluded that virtually every child
custody factor favored or strongly favored Father, Dr. Green determined that the factors only
“slightly favor the father.” Nothing in her testimony supports that immediate efforts at
reunification, conducted by a professional, would be dangerous or unwarranted.
IV
Because Mother’s parental rights have not been terminated and there exist no grounds to
even seek court jurisdiction, immediate efforts should be made to reunify her with her children.
According to the trial court’s order, periodic “review hearings” may be scheduled “ ‘to determine
whether the children wish to reinstate contact with defendant and whether resumption of parenting
time would be in their best interests.’ ”
-15-
Conditioning reunification on the children’s willingness to “reinstate contact” is, in my
view, plain error. Children are not emotionally or intellectually capable of being assigned the role
of parenting-time gatekeepers and under no circumstances should be granted this power.14
The record before this Court substantiates that neither child currently has any relationship
with Mother of any kind. IDO expresses loathing, anxiety and fear toward her. Although the trial
court found that Father is willing to facilitate a relationship, neither of the children has reached out
to Mother in more than two years. This is unsurprising, at Father’s trial testimony substantiates
that on several occasions before the court’s order entered he deliberated withheld the children from
court-ordered visits because they allegedly did not want to go, and has never told them that they
should reach out to their mother. The record reflects that Father is not facilitating anything except
maintaining the distance, physical and emotional, between Mother and her children.
At this point, the children are allied with Father and both are alienated and estranged from
Mother. Continuing on this path will only worsen the situation. The trial court refused to appoint
a new family reunification therapist in February 2019, and nothing in the court’s opinion suggests
that it would be willing to do so now. Because the trial court has repeatedly expressed its view
that Mother is incapable of parenting her children safely and has conducted these proceedings with
no apparent respect for rules protecting Mother’s rights, reassignment is required:
When determining whether remand to a different judge is required, we examine the
following factors:
(1) whether the original judge would reasonably be expected upon
remand to have substantial difficulty in putting out of his or her mind
previously-expressed views or findings determined to be erroneous
or based on evidence that must be rejected, (2) whether
reassignment is advisable to preserve the appearance of justice, and
(3) whether reassignment would entail waste and duplication out of
proportion to any gain in preserving the appearance of fairness.
[People v Walker, 504 Mich. 267, 285-286; 934 NW2d 727 (2019),
quoting People v Hill, 221 Mich. App. 391, 398; 561 NW2d 862
(1997) (quotation marks and citations omitted in original).]
Here, reassignment is required both to preserve the appearance of fairness and to provide the
children and their Mother an opportunity for reunification.
In its haste to punish Mother, the trial court wound up worsening a bad situation. Following
the rules may not have automatically healed the parties’ problems, but based on the evidence that
ultimately emerged, Mother’s relationship with her children would have been preserved. The goal
14
See also our Supreme Court’s order in Ludwig v Ludwig, 501 Mich. 1075; 911 NW2d 462 (2018),
wherein the Court struck down an order leaving to “the unfettered discretion of the [children’s]
therapists the ‘frequency, duration, and method’ of any contact” between the children and their
father. Placing that power in the hands of the children at the center of this case, or their father, is
even more improper.
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at this point should be immediate and aggressive efforts at reconciliation and reunification. Given
the lead opinion’s willingness to simply overlook the trial court’s many errors and its endorsement
of the status quo, I hold out no hope that will occur.
/s/ Elizabeth L. Gleicher
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