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THOMAS J. O’BRIEN, JR., UNPUBLISHED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.
PER CURIAM.
Defendant appeals as of right an order granting plaintiff sole legal and physical custody of
the parties’ twin children, GDO and IDO. The same order provided no parenting time for
defendant, subject to periodic review to determine whether reinstituting parenting time would be
in the children’s best interests. Although we agree with several claims of error raised by defendant
on appeal, we affirm the trial court’s order because each error was harmless.
I. BACKGROUND
The parties are parents of twin children, but were never involved in a romantic relationship
with each other. Throughout most of the children’s adolescence, the parties got along and
effectively coparented their children with little court involvement. However, defendant’s
relationships with plaintiff and then 13-year-old IDO became strained in the summer and fall of
2017, prompting the parties to initiate the instant custody dispute. At the time, the parties shared
legal custody and defendant had physical custody of the children, with plaintiff exercising
parenting time on one weekday overnight, every other weekend, and alternating holidays.
Plaintiff filed a verified emergency motion for a change of custody, alleging that defendant
had “a history of losing her temper beyond the point of control,” and that defendant’s recent erratic
and dangerous behavior constituted a change of circumstances or proper cause to modify custody
because the children were in “a state of complete emotional upheaval[,] fleeing [defendant’s]
residence regularly.” Plaintiff identified examples of defendant’s concerning behavior and
detailed three instances in which the police were called to intervene in confrontations between
defendant and the children. In response to plaintiff’s motion, defendant alleged that IDO had
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become increasingly disrespectful toward her since June 2017, particularly with respect to matters
involving social media, and that plaintiff was using the parties’ contrasting parenting styles to
undermine defendant’s relationships with the children. Plaintiff’s motion was referred to the
Friend of the Court (FOC) for a recommendation, and the trial court signed an interim parenting-
time order with an approximately equal parenting-time schedule.
Shortly thereafter, plaintiff filed an ex parte motion to suspend defendant’s parenting time.
Plaintiff claimed that defendant had continued to engage in alarming behavior, such as chasing
IDO down the street in a car, having an outburst during a meeting with the FOC custody and
parenting-time specialist, and attempting to remove the children from school midday. Plaintiff
alleged that the police had been called two more times and that a Children’s Protective Services
(CPS) investigation was underway. Plaintiff sought a temporary order suspending defendant’s
parenting time because the children were “petrified” of defendant and refused to spend time with
her. The trial court signed an ex parte order granting plaintiff “temporary full-time parenting time”
until the matter could be addressed at the court’s next motion call. The order also barred defendant
from appearing at the children’s school or initiating contact with the children in any manner.
At the hearing on November 15, 2017, plaintiff’s counsel asked the trial court to adopt a
recent recommendation from Kathleen Doan, the court’s FOC custody and parenting-time
specialist, in which Doan recommended that defendant complete a psychological evaluation and
parenting classes and that the trial court suspend defendant’s parenting time in the interim.
Consistent with Doan’s recommendation, the trial court continued the order suspending
defendant’s parenting time in light of the high-conflict state of the case. The children remained
free to contact defendant at their discretion and plaintiff was ordered not to discourage the children
from doing so. Defendant had little direct contact with the children throughout the remainder of
the case.
The court scheduled an evidentiary hearing concerning plaintiff’s motion to modify
custody in January 2018, but the matter was adjourned when the parties agreed to try to resolve
the matter with therapeutic counseling outside of court. The parties quickly disagreed about the
requirements of their stipulated order, so the evidentiary hearing began on March 20, 2018, and
consisted of nine days of proceedings over the course of eight months. In July 2018, the parties
again tried to resolve their dispute by agreeing to a specific schedule of parenting-time visits and
joint counseling sessions with defendant and the children. However, each time defendant had in-
person contact with the children, the children were left in a distraught and emotional state. The
children repeatedly expressed fear and anger toward defendant in counseling and little progress
was made to repair the relationships between defendant and the children.
Several months after the evidentiary hearings concluded, the trial court issued a lengthy
opinion regarding the parties’ custody and parenting time. The trial court determined that
revisiting the parties’ custody arrangement was warranted because the extreme coparenting
difficulties the parties faced took a high toll on the children and was contrary to their best interests.
Although the trial court’s discussion of the children’s established custodial environment was
somewhat ambiguous, it analyzed the matter as though the children had an established custodial
environment with both parties. Applying a clear and convincing evidence standard, the trial court
considered each of the statutory best-interest factors, MCL 722.23, citing evidence relevant to each
factor and concluding that granting plaintiff sole legal and physical custody was in the children’s
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best interests in light of defendant’s “bizarre and concerning behaviors” and the emotional and
chaotic environment in which the children lived while in defendant’s care. With respect to
parenting time, the court held that it was not in the best interests of the children to have parenting
time with defendant because there was clear and convincing evidence that parenting time would
further endanger the children’s physical, mental, or emotional health. The court reasoned that
forcing the children to interact with defendant would only damage, rather than foster, the parent-
child relationships. However, “cognizant of the significance of its ruling, and so as not to
constitute a de facto termination of [defendant’s] parental rights with no review mechanism,” the
court permitted periodic review hearings to determine whether reinstituting parenting time would
be in the children’s best interests. This appeal followed.
II. STANDARDS OF REVIEW
In matters involving child custody, “ ‘all orders and judgments of the circuit court shall be
affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence
or committed a palpable abuse of discretion or clear legal error on a major issue.’ ” Yachcik v
Yachcik, 319 Mich. App. 24, 31; 900 NW2d 113 (2017), quoting MCL 722.28. “Under the great
weight of the evidence standard, this Court should not substitute its judgment on questions of fact
unless the facts clearly preponderate in the opposite direction.” Shade v Wright, 291 Mich. App.
17, 21; 805 NW2d 1 (2010). The trial court’s ultimate decision to change custody is reviewed for
an abuse of discretion, which exists in the context of child custody disputes “ ‘when the result is
so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance
of judgment, or the exercise of passion or bias.’ ” Yachcik, 319 Mich. App. at 31, quoting Sulaica
v Rometty, 308 Mich. App. 568, 577; 866 NW2d 838 (2014). Questions of law are reviewed for
clear legal error, which occurs when the trial court “incorrectly chooses, interprets, or applies the
law.” Sulaica, 308 Mich. App. at 577. In addition, this Court reviews a trial court’s discovery
rulings for an abuse of discretion. Augustine v Allstate Ins Co, 292 Mich. App. 408, 419; 807 NW2d
77 (2011).
III. PROCEDURE FOR MODIFYING CHILD CUSTODY
Defendant first argues that the trial court erred by effectively granting plaintiff custody on
November 15, 2017, without complying with the procedural requirements of the Child Custody
Act, MCL 722.21 et seq. In a related argument, defendant also takes issue with the trial court’s
reliance on an FOC recommendation in ruling on defendant’s January 2018 motion to restore her
custodial rights. We agree, in part, but conclude that the trial court’s procedural error was
harmless.
“As set forth in MCL 722.27(1)(c), when seeking to modify a custody or a parenting-time
order, the moving party must first establish proper cause or a change of circumstances before the
court may proceed to an analysis of whether the requested modification is in the child’s best
interests.” Lieberman v Orr, 319 Mich. App. 68, 81; 900 NW2d 130 (2017). This Court announced
the threshold requirements a party seeking a change of custody must satisfy in Vodvarka v
Grasmeyer, 259 Mich. App. 499, 512-514; 675 NW2d 847 (2003):
[T]o establish “proper cause” necessary to revisit a custody order, a movant must
prove by a preponderance of the evidence the existence of an appropriate ground
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for legal action to be taken by the trial court. The appropriate ground(s) should be
relevant to at least one of the twelve statutory best interest factors, and must be of
such magnitude to have a significant effect on the child’s well-being. When a
movant has demonstrated such proper cause, the trial court can then engage in a
reevaluation of the statutory best interest factors.
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[I]n order to establish a “change of circumstances,” a movant must prove that, since
the entry of the last custody order, the conditions surrounding custody of the child,
which have or could have a significant effect on the child’s well-being, have
materially changed. Again, not just any change will suffice, for over time there will
always be some changes in a child’s environment, behavior, and well-being.
Instead, the evidence must demonstrate something more than the normal life
changes (both good and bad) that occur during the life of a child, and there must be
at least some evidence that the material changes have had or will almost certainly
have an effect on the child. This too will be a determination made on the basis of
the facts of each case, with the relevance of the facts presented being gauged by the
statutory best interest factors.
If the trial court determines that proper cause or a change of circumstances has been
established, it must then consider whether the proposed change is in the best interests of the child.
Lieberman, 319 Mich. App. at 83. “In matters affecting custody, when the child has an established
custodial environment with each parent, the movant must prove by clear and convincing evidence
that the proposed change is in the best interests of the child.” Id. at 83-84. Custody decisions, as
well as parenting-time decisions that would alter the child’s established custodial environment,
require findings under all of the statutory best-interest factors. Id. at 84. “An evidentiary hearing
is mandated before custody can be modified, even on a temporary basis.” Grew v Knox, 265 Mich
App 333, 336; 694 NW2d 772 (2005).
Defendant asserts that the trial court erred by failing to comply with these procedural
requirements before granting plaintiff full-time parenting time in November 2017. We agree. On
November 6, 2017, while plaintiff’s motion to change custody was pending, the trial court signed
an ex parte order suspending defendant’s parenting time. The court heard oral arguments
concerning plaintiff’s emergency motion to suspend defendant’s parenting time on November 15,
2017. At the conclusion of the brief hearing, the trial court signed an order continuing the
suspension of defendant’s parenting time and ordering that plaintiff “have the children full-time.”
Although the trial court framed its order in terms of parenting time only, the complete suspension
of defendant’s parenting time had the effect of modifying physical custody of the children because
it gave plaintiff complete physical care and supervision of the children while the order remained
in effect, where physical custody had previously been vested in defendant. See Lieberman, 319
Mich. App. at 79-80 (describing physical custody). Because the trial court’s order modified the
children’s custody, the court was required to first hold an evidentiary hearing and make the
findings detailed above, which it did not do. This was a clear error of law. Nonetheless, the trial
court’s error was harmless under these circumstances. Fletcher v Fletcher, 447 Mich. 871, 889;
526 NW2d 889 (1994) (“[U]pon a finding of error, appellate courts should remand to the trial court
unless the error was harmless.”).
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In its later opinion following the evidentiary hearings, the trial court found proper cause or
a change of circumstances based upon the breakdown of the parties’ ability to coparent that
occurred before plaintiff filed his motion for change of custody, which the court reasoned had
taken “an increasingly high toll on the children, their health, and [was] contrary to their best
interests.” Because the trial court’s opinion makes it clear that it considered whether the
circumstances that existed before November 2017 warranted revisiting the custody order, there is
no reason to believe that the trial court would have reached a different result if it had considered
this issue before entry of the November 15, 2017 order that effectively granted plaintiff physical
custody.
In arguing that the trial court’s procedural error was not harmless, defendant contends that
the suspension of her parenting time resulted in a “judicially engineered . . . new established
custodial environment” and “invariably affected all of the future proceedings in this case.” We
disagree. “An established custodial environment exists ‘if over an appreciable time the child
naturally looks to the custodian in that environment for guidance, discipline, the necessities of life,
and parental comfort.’ ” Yachcik, 319 Mich. App. at 47, quoting MCL 722.27(1)(c). “The age of
the child, the physical environment, and the inclination of the custodian and the child as to
permanency of the relationship shall also be considered.” MCL 722.27(1)(c). The existence of an
established custodial environment affects the burden of proof imposed on the party seeking a
change in custody as it relates to the best interests of the child. Griffin v Griffin, 323 Mich. App.
110, 119-120; 916 NW2d 292 (2018). Although the trial court’s opinion is somewhat
contradictory in its discussion of the children’s established custodial environment, the court
applied the higher clear and convincing evidence burden of proof that applies when the established
custodial environment will be altered by the court’s order. See id. at 119. Because the trial court
applied the highest burden of proof applicable to plaintiff’s motion, any effect the court’s
procedural error had on the established custodial environment was harmless. See Kubicki v
Sharpe, 306 Mich. App. 525, 541; 858 NW2d 57 (2014) (failure to articulate established custodial
environment findings was harmless where trial court applied clear and convincing evidence
standard).
Turning to defendant’s contention that the court’s procedural error tainted the later
proceedings, defendant failed to expand upon this conclusory argument. “It is well established
that [a] party may not merely announce a position and leave it to this Court to discover and
rationalize the basis for the claim.” Eldred v Ziny, 246 Mich. App. 142, 150; 631 NW2d 748 (2001)
(quotation marks and citation omitted; alteration in original). As such, this Court need not address
it. Id. Defendant’s position lacks merit at any rate because the trial court followed the appropriate
framework for modifying custody in its opinion, albeit well after it first granted plaintiff physical
custody on a temporary basis. That is, after finding that it was appropriate to revisit the issue of
custody, the court determined the applicable burden of proof on the basis of the children’s
established custodial environment, and proceeded to conduct an in-depth analysis of the statutory
best-interest factors. See Lieberman, 319 Mich. App. at 79-84.
Furthermore, while the trial court’s opinion references and relies upon a number of events
that occurred after it temporarily granted plaintiff physical custody, it is evident that the best-
interest factors the court found most important were Factors (a), (j), and (l), and the court’s
emphasis on those factors would still have been supported around the time plaintiff originally
sought suspension of defendant’s parenting time. Factor (a) considers “[t]he love, affection, and
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other emotional ties existing between the parties involved and the child.” MCL 722.23(a). In
pertinent part, the trial court found that Factor (a) greatly favored plaintiff because, despite the
love both parents felt for the children, defendant’s actions “produced significant conflict and
impacted the existing emotional ties between her and the children.” Had the trial court held an
evidentiary hearing before modifying the custody arrangement on a temporary basis, this finding
would still have been supported by evidence of the events that occurred in the fall of 2017. By
that time, the relationship between defendant and IDO had already deteriorated to the point that
IDO was running away from defendant’s home in fear of defendant’s antics, clearly evincing a
breakdown in the emotional ties IDO felt toward defendant. Although the discord between
defendant and GDO was less severe, GDO’s protective attitude toward his twin sister apparently
caused him to resent defendant’s treatment of IDO and to similarly reject voluntary contact with
defendant. For instance, there was evidence that GDO locked himself in a friend’s house with
IDO on August 24, 2017, to avoid defendant and that he refused to leave the school with defendant
on more than one occasion that fall. In comparison, while defendant clearly disagreed with many
of plaintiff’s parenting decisions, it appears undisputed that the children felt great love, affection,
and emotional ties with plaintiff, further supporting the trial court’s finding that Factor (a) favored
plaintiff.
Factor (j) addresses “the willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and the other
parent . . . .” MCL 722.23(j). The trial court determined that this factor overwhelmingly favored
plaintiff because defendant “actively wage[d] acrimonious campaigns designed to alienate the
children both from her and from [plaintiff],” while believing that plaintiff was responsible for
turning the children against her. The court also found that defendant was unwilling to facilitate a
relationship between the children and plaintiff. Again, the trial court could have reached these
same findings if it had considered the matter at or near the time it granted plaintiff physical custody.
Focusing on the fall of 2017, there was evidence that defendant placed a calling restriction on the
children’s phones so that they were unable to directly call plaintiff and that plaintiff’s phone
number was placed on a “watch list” that alerted defendant when GDO was communicating with
plaintiff. Because of these restrictions, IDO was forced to communicate with plaintiff through
social media applications and it is unclear whether GDO, who was not using social media at the
time, had any contact with plaintiff while in defendant’s care. Defendant’s interference with the
children’s ability to communicate with plaintiff, even in the face of a court order requiring that the
children have access to their phones to communicate with the noncustodial parent, supports that
trial court’s finding that defendant was unwilling to facilitate plaintiff’s relationships with the
children. Furthermore, defendant’s response to plaintiff’s motion for change of custody was
riddled with criticism and attempts to portray plaintiff as the source of the family’s problems, and
defendant’s belief that plaintiff was at fault for the family discord continuously pervaded her
testimony about the fall of 2017. In contrast, plaintiff testified that he consistently consulted the
children about whether they wanted to begin repairing their relationships with defendant,
reminding them that defendant loved and missed them, and the trial court found plaintiff’s
testimony highly credible. Thus, the trial court’s finding that Factor (j) favored plaintiff would
have been supported had the trial court addressed the matter earlier in compliance with the
procedural requirements of the Child Custody Act.
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Factor (l) permits the trial court to consider any other factor relevant to the dispute. MCL
722.23(l). Under this factor, the trial court relied on several concerning attributes of the case: (1)
defendant’s failure to appreciate the emotional damage her actions were inflicting upon the
children; (2) defendant’s decision to “publically humiliate” GDO by adding the phrase “ur mom”
to his Xbox gaming account, which was visible to the public; (3) defendant’s act of leaving an
FOC meeting to drive to the children’s school in an attempt to remove them from class in the
middle of the day; (4) defendant’s “somewhat concerning and bizarre” messages to plaintiff; (5)
the fact that defendant’s “intentionally antagonistic, spiteful, and emotionally damaging behavior”
inflamed the familial conflict; (6) that plaintiff had to seek therapy to obtain tools to better handle
defendant’s behavior over the years; and (7) a variety of matters noted in the children’s 2015
counseling records. Again, the majority of the additional considerations that the trial court
addressed under Factor (l) were present to some degree at the time the court temporarily granted
plaintiff physical custody. As noted by the trial court, a CPS investigator testified that she would
have substantiated a complaint for emotional abuse in November 2017 had the children remained
in defendant’s care. Defendant went to the children’s school to remove them from class after the
second meeting with Doan in November 2017. With respect to defendant’s concerning messages
to plaintiff, the trial court cited messages admitted as defendant’s Exhibit 19 and plaintiff’s Exhibit
P, which were exchanged in June 2017 and September 2017, respectively. Plaintiff’s therapist
testified that she had been working with plaintiff for more than 10 years to help him learn ways to
effectively communicate with defendant. Finally, although the trial court quoted extensively from
the children’s 2018 counseling records, that fact alone does not undermine the strength of the trial
court’s other findings concerning matters that existed in the fall of 2017.
Defendant also takes issue with the trial court’s reliance on a referee recommendation to
resolve her January 2018 motion to restore her custodial rights. Defendant contends that the
recommendation was the product of a meeting between the referee, Doan, and the parties’
attorneys, which the parties were not allowed to attend. Defendant argues that the trial court
blindly accepted the recommendation in open court without making any findings concerning
proper cause, the children’s established custodial environment, or the best-interest factors.
Defendant’s argument mischaracterizes the record. On January 17, 2018, two motions
were before the court for hearing: plaintiff’s show cause motion concerning defendant’s violations
of the court’s earlier orders and defendant’s motion to restore her custodial rights. The parties
sought several forms of relief in their respective motions. After the parties’ attorneys met with a
referee in private, the trial court opened the hearing by noting that there were three different
recommendations from the referee. The first recommendation concerned the children’s
counseling, which defense counsel had no objection to. The second recommendation related to
recalculating child support, with which defense counsel similarly expressed satisfaction. The third
recommendation concerned the transfer of GDO’s gaming account. The trial court overruled
defendant’s objections concerning the gaming account and affirmed an earlier order requiring
defendant to transfer the account to GDO. No further recommendations were referenced by the
trial court or the parties, and defendant has not presented any evidence to the contrary. Thus, while
the trial court did resolve some of the ancillary matters involved in the motions by relying primarily
on the referee’s recommendation, those issues did not involve custody or parenting time and, thus,
did not require findings regarding proper cause, the established custodial environment, or the best-
interest factors.
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Furthermore, at the same hearing, the trial court acknowledged that defendant’s motion to
restore her custodial rights presented a strong argument that should be addressed at an evidentiary
hearing. To that end, the trial court scheduled a hearing to take place two days later, at which time
custody and parenting time would be addressed. Although the evidentiary hearing was ultimately
adjourned, the adjournment was entered at the request of the parties. Extensive testimony was
later taken, and the trial court made detailed findings in support of its final order granting plaintiff
sole legal and physical custody. Accordingly, defendant’s argument is unsupported by the record.
IV. ADMISSIBILITY OF EVIDENCE SUPPORTING THE TRIAL COURT’S RULINGS
Defendant next argues that the trial court erred by basing its decisions on ex parte
communications and inadmissible evidence. Again, we agree, in part, but find the trial court’s
error harmless in the context of this case.
Defendant argues that the trial court erred by considering ex parte communications with
Doan. Defendant’s argument is fundamentally flawed because an ex parte communication is “[a]
communication between counsel or a party and the court when opposing counsel or party is not
present.” Black’s Law Dictionary (11th ed). Because Doan was neither a party nor counsel in this
matter, the trial court’s private communication with Doan does not constitute ex parte
communication. Furthermore, this Court has held that the trial court may consider an FOC report
“as an aid to understanding the issues to be resolved.” Harvey v Harvey, 257 Mich. App. 278, 292;
668 NW2d 187 (2003). The trial court’s August 14, 2018 order directing Doan to consult with the
children’s counselor, Kaca Popovic, for the purpose of submitting a recommendation for continued
reunification efforts was not improper, as the Child Custody Act permits the court to “[u]tilize
community resources in behavioral sciences and other professions in the investigation and study
of custody disputes and consider their recommendations for the resolution of the disputes,” MCL
722.27(1)(d), and “[t]ake any other action considered to be necessary in a particular child custody
dispute,” MCL 722.27(1)(e). As the children’s treating counselor, Popovic undoubtedly had
significant insight on the children’s progress and should have been a neutral source of
information.1
That being said, the portion of the trial court’s order enjoining Popovic and Doan from
“discussing or disclosing the contents of their communication to counsel or the parties,” is more
problematic. Section 7a of the Friend of the Court Act, MCL 552.501 et seq., provides that
[a] copy of each report, recommendation, and any supporting documents or a
summary of supporting documents prepared or used by the friend of the court or an
employee of the office shall be made available to the attorney for each party and to
each of the parties before the court takes any action on a recommendation by the
office. [MCL 552.507a(1).]
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At the time the trial court signed the August 14, 2018 order directing Doan to consult with
Popovic, it had no reason to believe that Popovic harbored bias against either party. However,
Popovic later admitted that she was biased against defendant as a result of an explosive joint
counseling session that took place later that month.
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Similarly, MCR 3.210(C)(6) directs the trial court to give the parties an opportunity to review and
file objections to a report submitted by the FOC before a decision is made. Given these mandates,
the trial court committed clear legal error by precluding disclosure of the recommendation to the
parties.
However, the trial court’s error does not require appellate relief because it was harmless.
Fletcher, 447 Mich. at 889. Although the trial court’s communication with Doan does not
constitute ex parte communication, the dangers inherent in ex parte communications bear
consideration. Cheesman v Williams, 311 Mich. App. 147, 162; 874 NW2d 385 (2015) stated:
In Grievance Administrator v Lopatin, 462 Mich. 235, 262-263; 612 NW2d 120
(2000), our Supreme Court discussed the danger of ex parte communications:
“Ex parte communications deprive the absent party of the right to respond and be
heard. They suggest bias or partiality on the part of the judge. Ex parte
conversations or correspondence can be misleading; the information given to the
judge ‘may be incomplete or inaccurate, the problem can be incorrectly stated.’ At
the very least, participation in ex parte communications will expose the judge to
one-sided argumentation, which carries the attendant risk of an erroneous ruling on
the law or facts. At worst, ex parte communication is an invitation to improper
influence if not outright corruption.” [Quoting Shaman, Lubet & Alfini, Judicial
Conduct and Ethics (3d ed), § 5.01, pp 159-160.]
These risks are not present in this case because the parties were not deprived the opportunity to
respond and be heard. At a hearing on September 13, 2018, the trial court told the parties that
Doan and Popovic recommended that the children needed “a break,” with defendant “out of the
picture” for a while, perhaps until the end of the school semester. Both parties had an opportunity
to advise the court about their respective perceptions of the parties’ recent attempts to restore
parenting time and engage in joint counseling, and both parties had previously elicited testimony
from Popovic about her counseling techniques. Lastly, defense counsel opposed the
recommendation at the hearing, arguing that the continued separation of the children from
defendant was making the situation worse. Thus, the trial court did not make the decision to
resume the evidentiary hearing in lieu of ordering a specific counseling and parenting-time
schedule based solely on one-sided communication.
Defendant also challenges the trial court’s reliance on certain evidence in its final opinion
and order, namely, text messages that were not properly before the court and the court’s in camera
interview with the children. The text messages that defendant challenges were included in a
motion filed by plaintiff after the evidentiary hearings concluded. It is notable that while the
motion was never heard by the trial court, defendant filed a response to the motion in which she
admitted sending the messages, disputing only the negative implications plaintiff attached to the
messages. Assuming, without deciding, that the trial court’s reference to these messages in its
opinion was improper under these circumstances, we disagree with defendant’s assertion that the
trial court “extensively relied” on the messages to reach its decision regarding custody and
parenting time.
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The trial court conducted an in-depth analysis of the best-interest factors, citing specific
evidence and findings as to each factor, including Factor (l), which serves as a catch-all provision
permitting consideration of any factor the court deems relevant. It was only after the court
concluded its analysis of the best-interest factors that it noted, almost as an aside, the messages
submitted with plaintiff’s motion after the evidentiary hearings. Thus, it does not appear that the
trial court considered the messages in the context of its best-interest analysis, which is what
ultimately controls all important decisions regarding the children involved in a custody dispute.
See MCL 722.25(1) (stating that the best interests of the child control in custody disputes); Pierron
v Pierron, 486 Mich. 81, 85; 782 NW2d 480 (2010) (“[W]hen the parents cannot agree on an
important decision . . . the court is responsible for resolving the issue in the best interests of the
child.”). Moreover, the court cited the messages as evidence that defendant took no responsibility
for her actions, believed that plaintiff was at fault for the situation, and failed to acknowledge or
internalize the basis for IDO’s adverse feelings toward her. Even if the court had not referred to
the messages in its opinion, it could have reached the same conclusion from other evidence
presented at the evidentiary hearings and cited throughout its opinion.
Turning to defendant’s challenge regarding the trial court’s in camera interview of the
children, defendant contends that the trial court improperly used the in camera interview for fact-
finding. We disagree. Under MCL 722.23(i), the reasonable preference of a child involved in a
custody dispute is a factor that must be considered in the court’s best-interest analysis if the court
determines that the child is of sufficient age to express a preference. Kubicki, 306 Mich. App. at
544-545. The trial court can discern the child’s preference during an in camera interview, as long
as the interview is limited “to a reasonable inquiry of the child’s parental preference.” Molloy v
Molloy, 247 Mich. App. 348, 351; 637 NW2d 803 (2001), vacated in part on other grounds 466
Mich. 852 (2002). See also MCR 3.210(C)(5) (permitting private interview with child focused on
child’s reasonable preference). While the interview cannot be used for fact-finding, it also “should
not take place in a vacuum[.]” Thompson v Thompson, 261 Mich. App. 353, 365; 683 NW2d 250
(2004), quoting Molloy, 247 Mich. App. at 353 (quotation marks omitted). Indeed, the trial court
should make inquiries “to test the authenticity, the motives, and the consistency of the preference.”
Molloy, 247 Mich. App. at 353. The trial court “must state on the record whether children were
able to express a reasonable preference and whether their preferences were considered by the court,
but need not violate their confidence by disclosing their choices.” Fletcher v Fletcher, 200 Mich
App 505, 518; 504 NW2d 684 (1993), rev’d in part on other grounds 447 Mich. 871 (1994).
Apart from noting that an in camera interview occurred, during which the children
appeared “grounded,” the trial court’s only discussion of the interview was in the context of
analyzing Factor (i). With respect to that factor, the court stated only that it interviewed the
children, “found their statements credible and compelling,” and “considered their preference and
statements in its deliberations.” Thus, even if the court heard extraneous information in the course
of testing the reasonableness of the children’s preferences, there is simply no indication that it
asked the children questions outside the permissible scope of the interview or considered
extraneous information in evaluating the other best-interest factors. See Thompson, 261 Mich. App.
at 365-366.
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V. DISCOVERY
Next, defendant argues that the trial court erred by denying her requests to compel
production of plaintiff’s social media posts, the user names and passwords for the children’s social
media accounts, and the raw test data from the psychological evaluations of the parties and
children. We agree, in part, but again find that the trial court’s error was harmless.
“It is well settled that Michigan follows an open, broad discovery policy that permits liberal
discovery of any matter, not privileged, that is relevant to the subject matter involved in the
pending case.” Augustine, 292 Mich. App. at 419. “However, a trial court should also protect the
interests of the party opposing discovery so as not to subject that party to excessive, abusive, or
irrelevant discovery requests.” Cabrera v Ekema, 265 Mich. App. 402, 407; 695 NW2d 78 (2005).
Defendant alleged that she should be allowed access to the children’s social media accounts
because the children’s state of mind, as well as their social media use, was central to the parties’
dispute. Although the trial court did not articulate its reason for denying defendant’s request, we
cannot conclude that the trial court’s ruling amounted to an abuse of discretion because there was
evidence that defendant had abused similar access in the recent past. Defendant had access to
GDO’s Xbox gaming account for several months because it was associated with her personal
Microsoft account. Before giving GDO the information needed to access the account at plaintiff’s
house, defendant added the phrase “ur mom” to GDO’s publically accessible profile information.
The trial court characterized defendant’s action as “highly concerning” in that defendant chose to
“publically humiliate” GDO. Given this finding, it is not difficult to infer the trial court denied
defendant’s request for access to the children’s social media accounts to prevent defendant from
abusing the access. Despite Michigan’s broad discovery policy, the trial court did not err by
denying a request that could be used for abusive purposes, particularly when the parties presented
ample evidence from which the children’s state of mind could be discerned, including, most
notably, the children’s counseling records. Id.
Furthermore, defendant’s contention that the children’s accounts were relevant because
“the children’s access and use of social media was a prime issue of contention between the parties,”
is misplaced. Although defendant’s discipline related to social media may have been a catalyst for
the breakdown of defendant’s relationship with IDO, the issue before the court was whether
modification of the parties’ custody arrangement was in the children’s best interests. Regardless
of whether defendant’s disciplinary measures were appropriate or whether the children’s feelings
about defendant were objectively reasonable, the evidence demonstrated that the children had an
honest and deep-set fear of defendant such that continuing the previous custody arrangement was
no longer in their best interests.
With respect to defendant’s request for copies of plaintiff’s social media posts, defendant
alleged that the posts might demonstrate that plaintiff had been alienating the children against
defendant. On appeal, defendant contends the materials were relevant to plaintiff’s state of mind
about defendant, the children, and the custody dispute. Despite the limited relevance asserted by
defendant, defendant sought all of plaintiff’s social media posts for “the last year,” without
attempting to narrow the scope of the request to posts that related to defendant, the children, or the
custody dispute. As such, the trial court could have reasonably determined that defendant’s request
improperly sought excessive discovery. Id. More importantly, the trial court reviewed plaintiff’s
posts in camera and determined that none of the materials were relevant to the custody dispute.
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Thus, even if the trial court had permitted discovery of plaintiff’s social media posts, it is
improbable that the court would have permitted admission of the posts at the evidentiary hearing.
Defendant also alleges that the trial court erred by denying her request to compel
production of the raw data upon which FOC psychologist Linda Green relied to reach the opinions
outlined in her psychological report. Defendant filed an emergency motion to compel the raw
data, alleging that it was discoverable under MCR 3.218(B) and the trial court’s order referring
the family for psychological assessment, which designated information relied on by the expert as
nonconfidential. The trial court denied defendant’s motion without explanation.
Under MCR 3.218(B)(1), the FOC must give parties and attorneys of record access to
nonconfidential records. MCR 3.218(A)(1) defines “records” as “any case-specific information
the [FOC] office maintains in any media[.]” As a psychologist employed by the FOC, Dr. Green
would be subject to the requirements of MCR 3.218. Given the plain language of these rules, we
agree that the trial court erred by denying defendant’s motion to compel production of the raw test
data, as the data was “case-specific” and requested by defendant’s attorney of record.
Defendant also argues that the trial court exacerbated this error by barring defense counsel
from eliciting testimony about the raw data when Dr. Green testified at the evidentiary hearing.
Defense counsel asked Dr. Green about defendant’s specific results on four individual scales from
the Minnesota Multiphasic Personality Inventory II (MMPI-II) test.2 Dr. Green indicated that she
did not have the raw data available during her testimony, but that all of defendant’s clinical scales
were within normal limits, which meant that defendant’s results reflected trends, rather than
clinical syndromes. Dr. Green also relied on “other validating information,” such as defendant’s
history, documentation, and input from other professionals, to characterize the trends reflected in
the test results. When Dr. Green refused to read aloud the “complete computer printout . . . about
[defendant’s] personality profile,” the trial court rejected defense counsel’s objection, reasoning
that Dr. Green was the expert on how to interpret the data. The court concluded that counsel could
“ask [Dr. Green] what she used, but I’m not going to get into the raw data.” With respect to
plaintiff’s test results, Dr. Green agreed that some of plaintiff’s validity scales were elevated, but
not to a point that would render plaintiff’s profile invalid.
Because Dr. Green testified as an expert in psychology, the admissibility of her testimony
was governed by MRE 702, which provides:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
2
According to Dr. Green’s report, the MMPI-II is a “self-administered standardized psychometric
test of adult personality and psychopathology.”
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By limiting defense counsel’s inquiry into the data upon which Dr. Green relied, the trial court
improperly limited defendant’s ability to test the reliability of Dr. Green’s expert opinion.
Although the trial court abused its discretion in this regard, this Court must affirm the trial
court’s order granting plaintiff physical and legal custody unless the trial court “made findings of
fact against the great weight of evidence or committed a palpable abuse of discretion or a clear
legal error on a major issue.” MCL 722.28. Even when such an error occurred, appellate relief
should not be granted if the error was harmless. Fletcher, 447 Mich. at 889. The trial court’s error
was ultimately harmless because the trial court did not place particular emphasis on Dr. Green’s
report or opinion. The parties’ psychological profiles were most relevant to best-interest Factor
(g) (mental and physical health of the parties), MCL 722.23(g), and the trial court did not find Dr.
Green’s reiteration of defendant’s self-reported mental health history dispositive, nor did the court
refer to either party’s psychological profiles in its analysis. The only other time the trial court
cited Dr. Green’s report or opinion was in the context of Factor (b) (capacity and disposition to
provide love, affection, and guidance and to continue education and raising of child in his or her
religion or creed, if any), MCL 722.23(b). With respect to that factor, the trial court noted Dr.
Green’s opinion that defendant’s capacity to give love, affection, and guidance was hindered by
her “unpredictable and intimidating reactions,” which resulted in “fragile attachments, withdrawal,
mistrust, and anxiety.” Outside of Dr. Green’s opinion, the record was replete with examples of
defendant’s extreme reactions to conflicts with plaintiff and the children. Furthermore, the
children’s diminished relationships with and feelings toward defendant were at the heart of the
custody dispute. Given the ample evidence regarding these matters, the trial court’s repeated
comments about the way defendant’s behavior affected the children, and the court’s minimal
citation of Dr. Green’s opinion, it is nearly certain that the trial court would have made a similar
finding under Factor (b) even if defendant had received the raw test data in discovery and been
permitted to question Dr. Green more closely regarding the same.
Reviewing the entirety of the trial court’s opinion, it is clear the court was most concerned
with the implications of each party’s behavior during the proceedings and the manner in which
that behavior affected the children, rather than the details of the parties’ psychological profiles.
Thus, even if the trial court had ordered Dr. Green to supply the raw data from the psychological
testing and permitted defense counsel to question Dr. Green about the same, it is improbable that
the result of the proceedings would have been different because the tendencies implicated by the
parties’ psychological profiles did not alter their actual conduct throughout the case or the fact that
defendant’s actions were having a significant negative effect on the children’s mental and
emotional well-being. As such, the trial court’s error in this regard does not warrant relief.
VI. BIAS IN ENTERING AND ENFORCING ORDERS
Defendant next contends that the trial court exhibited bias toward her by striking provisions
in stipulated orders that provided parenting time for defendant, refusing to enforce a stipulated
order for parenting time, and refusing to appoint a new counselor after Popovic admitted that she
was biased against defendant. We disagree.
Defendant’s position ignores the fact that the Child Custody Act imposes an affirmative
obligation on the trial court to “ensure that the resolution of any custody dispute is in the best
interests of the child.” Harvey v Harvey, 470 Mich. 186, 192; 680 NW2d 835 (2004). While
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defendant cites caselaw supporting the general notion that courts must enforce unambiguous
agreements as written, defendant’s authority is unpersuasive in the context of custody disputes
because “the deference due parties’ negotiated agreements does not diminish the court’s obligation
to examine the best interest factors and make the child’s best interests paramount.” Id. at 193.
Each of the decisions defendant complains of was clearly undertaken in recognition of this rule of
law.
Although the parties stipulated in January 2018 that defendant could contact the children
by phone and text message, the trial court struck that provision before signing the order. At that
time, the children had not communicated with defendant for several months, and defendant had
yet to engage in any sort of reunification counseling with the children. The trial court’s order did
not preclude defendant from reconnecting with her children, it merely required that the first contact
between them occur in a therapeutic setting. The trial court’s later decision to modify an order
requiring the children to respond to defendant’s phone calls and text messages was similarly
guided by the best interests of the children. The subject order used mandatory language to describe
the children’s obligation to respond, and the trial court modified the order to “encourage,” rather
than require, the children’s cooperation, doing so only after the parties filed motions that made the
children’s negative responses to the forced contact evident. A month later, the trial court clearly
articulated that it declined to enforce a stipulated order regarding parenting time because it was
not convinced that the children were ready to have more contact with defendant after recent
attempts to force the matter had been disastrous. Finally, despite Popovic’s admission of bias
toward defendant in October 2018, the trial court declined to appoint a new counselor because the
children had developed a good rapport with Popovic and were in need of stability and “respite
from the significant strain and emotional turmoil” caused by the custody dispute. Given the trial
court’s focus on the well-being and best interests of the children, we cannot conclude that the
court’s rulings were “so palpably and grossly violative of fact and logic that [they] evidence[] a
perversity of will, a defiance of judgment, or the exercise of passion or bias.” Yachcik, 319 Mich
App at 31 (quotation marks and citation omitted).
VII. CHILD CUSTODY RULING
Next, defendant challenges the trial court’s decision to grant plaintiff sole legal and
physical custody, arguing that the ruling was an abuse of discretion and against the great weight
of the evidence. We disagree.
Defendant first argues that the trial court abused its discretion by making an unfounded
credibility determination to insulate its decision from review. We disagree. It is well-accepted
that appellate courts generally defer to a trial court’s determinations regarding credibility, Elahham
v Al-Jabban, 319 Mich. App. 112, 126; 899 NW2d 768 (2017), as the court that hears the testimony
and observes the witnesses is in a superior position to make that determination, Fletcher, 447
Mich. at 890. However, because factors apart from demeanor and inflection affect credibility, a
trial court’s credibility determination is not completely shielded from review. Beason v Beason,
435 Mich. 791, 804; 460 NW2d 207 (1990). This Court may scrutinize and reject a credibility
determination when a witness’s testimony is contradicted by objective evidence or when the
testimony is “so internally inconsistent or implausible on its face that a reasonable factfinder would
not credit it.” Id. (quotation marks and citation omitted).
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The trial court found defendant’s testimony “wholly not credible, largely disingenuous,
and fantastical at best,” noting that it had to repeatedly admonish defendant to answer questions
directly instead of providing unprompted narratives and that defendant’s testimony was “wildly
misleading and nonsensical” at times. The trial court also indicated that defendant provided
combative and evasive responses and that her demeanor over the lengthy series of hearings
“vacillated between laughing, crying, tense, and calm seemingly independent of anything
occurring in the courtroom, the question posed to her, or anything about the particular incident
about which she testified.” While we are unable to evaluate defendant’s demeanor at the hearings,
the remainder of the trial court’s criticisms are well supported by the record.
For instance, when asked whether she added plaintiff’s phone number to a watch list to
monitor plaintiff’s communications with GDO, defendant said, “I have a right to see what my
son’s doing, so I don’t really know.” Defendant also stated that she did not create a watch list and
did not know what it was. Plaintiff’s counsel confronted defendant with a message from GDO’s
phone indicating that plaintiff’s phone number had been added to the watch list, which read, “Your
parent will be notified when you call or text this person.” In response, defendant said she did not
know how GDO “got that” because he should not have access to the parental controls for
defendant’s Verizon account. Defendant also reasoned: “I think I have a right to do that as a
parent. So fine with me.” Later, when pressed about whether she knew that GDO would see that
she changed his Xbox account profile to include the phrase “ur mom,” defendant began a denial
before shifting her answer midsentence to say, “Yeah, you know what and I am his mom so there.”
Plaintiff’s counsel also asked defendant whether she went to the children’s school with her former
lawyer on the second day of class, and defendant began saying, “You know that we did because
we were supposed to have—” at which point the trial court asked defendant to answer yes or no.
Defendant admitted going to the school, but denied asking to take the children out of school early
because it was her lawyer who made the request. When asked about her plans to relocate after
selling her home, as required by her judgment of divorce, defendant said, “I just want to have my
children back in my arms.” Each of these examples of nonresponsive or misleading testimony
occurred on the first day of the hearing alone, and the trial court had to instruct defendant to answer
questions directly at least eight times that day. Given the nature of defendant’s testimony that day
and throughout the remainder of the proceedings, the trial court’s poor view of defendant’s
credibility appears well grounded.
Defendant contends that the trial court’s perception went against the great weight of the
evidence because her testimony was corroborated by text messages and over 40 exhibits that the
trial court failed to consider. We disagree. While many of the text messages do corroborate
assertions defendant made at the hearings, the matters to which they relate were essentially
uncontested, such as defendant’s insistence that IDO stop using social media; an inappropriate
message IDO received from an anonymous person asking for nude photographs; plaintiff telling
defendant that the children were only comfortable with receiving text message communications
from her on their birthday; and the numerous text messages defendant sent the children without
receiving a response. Other exhibits, like defendant’s letter to Doan after their second meeting
and defendant’s e-mail to plaintiff on February 2, 2018, merely reiterated defendant’s perception
of events and were contradicted by other evidence. The few exhibits that were particularly
favorable to defendant’s credibility, such as a June 2017 text message in which plaintiff agreed to
a family meeting to discuss name calling and other respect issues with the children, were not so
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persuasive that they would adequately rehabilitate defendant’s credibility and render the trial
court’s determination contrary to the great weight of the evidence.
Defendant also argues that the trial court erred by focusing on its negative view of
defendant, without considering any of plaintiff’s actions, expert testimony that both parties were
at fault, and testimony from several witnesses indicating that defendant was polite, appropriate,
and did not yell. Defendant is correct that nearly every witness testified that she was appropriate,
polite, and respectful during their interactions. Defendant’s behavior toward third parties,
however, is not necessarily indicative of her behavior toward plaintiff and the children. Indeed,
according to Dr. Green, defendant 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 responding.” (Emphasis added.) Defendant’s other arguments are simply
unsupported by the record. Contrary to defendant’s assertion that the children’s guidance
counselor and Dr. Green indicated that both parties were culpable for the custody dispute in this
case, both witnesses actually testified in general terms, agreeing that both parents typically have
some level of responsibility for familial conflict. Furthermore, while there was evidence
suggesting that the children might be negatively impacted if they heard plaintiff express his fear
of defendant, the evidence that plaintiff did so on a regular basis was far from “uncontroverted.”
Defendant presented a single recording of the parties’ October 11, 2017 encounter with the police
in which plaintiff, in IDO’s presence, said he feared defendant. This single instance does not bear
significant weight in comparison to the balance of the evidence presented to the court.
Furthermore, while defendant may disagree with the trial court’s findings, the trial court found
from the totality of the evidence that plaintiff’s actions were generally appropriate and in the best
interests of the children.
Lastly, defendant argues that the trial court’s findings were flawed because the court did
not address the best interests of the children individually. This Court has previously explained that
“in most cases it will be in the best interests of each child to keep brothers and sisters together.”
Foskett v Foskett, 247 Mich. App. 1, 11; 634 NW2d 363 (2001), quoting Wiechmann v Wiechmann,
212 Mich. App. 436, 440; 538 NW2d 57 (1995) (quotation marks omitted). “However, if keeping
the children together is contrary to the best interests of an individual child, the best interests of that
child will control.” Wiechmann, 212 Mich. App. at 440. Defendant argues that the trial court erred
by failing to take into account that she had no conflicts with GDO. We disagree.
Even though GDO was not directly involved in the underlying conflicts that caused this
matter to come before the trial court, the evidence demonstrated that the twin children shared an
extremely close sibling bond and that GDO felt particularly protective of his sister. Thus, while
there was no indication that GDO initially had the same volatile relationship with defendant that
IDO did, GDO still began to distance himself from defendant, going so far as to lock himself inside
a friend’s home with IDO to avoid defendant. GDO was also presenting as emotional and “burnt
out” at school. Furthermore, the police officer who spoke with GDO on October 11, 2017, testified
that GDO was timid, chose his words very carefully, and seemed scared to say what he wanted to.
GDO remained with defendant that night while IDO stayed with plaintiff and, the very next day,
GDO went to plaintiff’s home and refused to return to defendant. According to the psychologist
who briefly treated the children in the fall of 2017, GDO was shut down and “afraid to take a
stand” because he feared that the same things that happened to IDO would happen to him. The
animosity GDO felt toward defendant continued to grow in the following months, particularly in
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the aftermath of defendant’s interference with his gaming account. By June 2018, GDO was
expressing extreme hatred toward defendant in his counseling sessions with Popovic. In light of
these facts, the trial court did not err because keeping the children together was consistent with
GDO’s best interests. Moreover, given the strength of the children’s bond, it is quite probable that
separating the children would have created yet another hurdle in the path to the children repairing
their relationships with defendant. See id. at 439-440 (“The sibling bond and the potentially
detrimental effects of physically severing that bond should be seriously considered in custody
cases where the children likely have already experienced serious disruption in their lives as well
as a sense of deep personal loss.”).
VIII. PARENTING-TIME RULING
Next, defendant challenges the trial court’s final order, in which she was granted no
parenting time. Defendant argues that the ruling was contrary to the statutory presumption that
parenting time should be granted in a manner that will foster a strong parent-child relationship and
that the lengthy suspension of her parenting time constitutes a de facto termination of her parental
rights. We disagree.
MCL 722.27a(1) creates a statutory presumption that it is in a child’s best interests to have
a strong relationship with both of his or her parents. McRoberts v Ferguson, 322 Mich. App. 125,
140; 910 NW2d 721 (2017). To that end, parenting time should be granted “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). But while a child has a presumed right to
parenting time, parenting time should not be ordered if “the court determines on the record by clear
and convincing evidence that parenting time would endanger the child’s physical, mental, or
emotional health.” Lieberman, 319 Mich. App. at 80, citing MCL 722.27a(3).
This Court recently addressed an identical argument in Luna v Regnier, 326 Mich. App. 173,
183; 930 NW2d 410 (2018). In that case, the father moved to suspend the mother’s parenting time,
alleging that the children did not want to see the mother and would act out in frustration whenever
she was mentioned. Id. at 177. The children’s guardian ad litem testified that the children
struggled with the court-ordered parenting time and would run into the woods to avoid the mother.
Id. at 178. The children’s negative behaviors toward the mother continued to increase, and the
children’s counselor believed it would be “beneficial to suspend parenting time because the stress
and anxiety it caused the children negatively affected their progress on other mental, social, and
educational issues.” Id.
This Court affirmed the trial court’s suspension of the mother’s parenting time under MCL
722.27a(3). Id. at 180-183. This Court agreed that forcing parenting time under the circumstances
“was likely to cause emotional trauma and to drive a wedge further between mother and child, not
foster a strong relationship.” Id. at 180-181. The mother maintained that the children’s negative
feelings could not be attributed to her when her contact with them had been limited. Id. at 181.
This Court agreed with the trial court’s conclusion that forced parenting time would cause
emotional or mental harm to the children, even if the children’s perceptions regarding the mother
were unfounded. Id. This Court also rejected the mother’s argument that the father had disparaged
her in front of the children, noting evidence to the contrary and deferring to the trial court’s
assessment of the witnesses’ credibility. Id. at 182. Finally, this Court disagreed that the
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suspension of the mother’s parenting time without reunification therapy was akin to a de facto
termination of her parental rights, but remanded the matter to the trial court to conduct periodic
hearings to determine whether resuming parenting time would be in the children’s best interests at
a later time. Id. at 183.
The facts involved in the instant case are remarkably similar. Much like in Luna, the
children remained extremely unwilling to engage with defendant throughout the proceedings,
consistently expressing fear and anger toward her. Defendant raises similar objections to the trial
court’s ruling, arguing that her continued separation from the children is making matters worse
and that the dysfunction in their parent-child relationships has been influenced and exacerbated by
plaintiff. This Court’s rationale in Luna is equally applicable here. Dr. Green opined that the
children’s reunification with defendant should be a gradual process “interdependent upon
successful completion of goals, stability of mood, and readiness of the children.” She further
cautioned that the treatment would not necessarily involve a linear approach and may “ebb and
flow with the children’s tolerance of anxiety and feelings of safety.” At the last evidentiary
hearing, Popovic testified that the children continued to harbor feelings of fear and frustration and
were not ready to resume their relationships with defendant. The court also interviewed the
children about their custodial preferences and could have reasonably determined that the children’s
adamant opposition to any contact with defendant remained unchanged. Furthermore, the court
and parties attempted to force the children to communicate with defendant on more than one
occasion throughout the proceedings, and each attempt left the children emotionally distraught.
Regardless of whether the children’s feelings toward defendant were objectively reasonable, the
evidence demonstrated that their feelings appeared genuine and were so strong that parenting time
with defendant would endanger their mental or emotional well-being.
Also like in Luna, while there was some evidence that plaintiff’s behavior could have
affected the children, plaintiff denied speaking poorly of defendant, repeatedly testified that he
was open to the children repairing their relationships with defendant, and spoke with the children
often about whether they were ready and willing to resume contact with defendant. Given the
substantial similarities between this case and Luna, we likewise conclude that the trial court did
not abuse its discretion by suspending defendant’s parenting time under MCL 722.27a(3). Id. at
180-183.
Defendant’s characterization of the trial court’s suspension of her parenting time as a de
facto termination is also unpersuasive. Defendant exaggerates the record by claiming that she has
been deprived all contact with the children since November 2017. Although her contact has been
severely limited, defendant’s assertion is clearly untrue because she engaged in a handful of joint
counseling sessions with the children and exercised parenting time on at least one occasion. These
contacts were ultimately counterproductive, but they occurred. Furthermore, while termination of
parental rights results in a permanent severing of the legal ties between a parent and child, the trial
court’s suspension of defendant’s parenting time is modifiable, and the trial court explicitly
incorporated into its final order the periodic review mechanism described by the Luna Court to
ensure that defendant’s parenting time is restored if and when doing so would serve the best
interests of the children. Accordingly, the trial court has not terminated defendant’s parental rights.
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IX. REASSIGNMENT ON REMAND
Defendant’s last argument on appeal is that this Court should order reassignment of this
matter to a different judge on remand. Because we have found no error requiring a remand, we
need not address defendant’s request. Cassidy v Cassidy, 318 Mich. App. 463, 510; 899 NW2d 65
(2017). At any rate, we do not believe reassignment is necessary in this case. Repeated adverse
rulings, no matter how erroneous, are generally not grounds for disqualification. Bayati v Bayati,
264 Mich. App. 595, 602-603; 691 NW2d 812 (2004). Although we can infer from the tone of the
trial court’s opinion that it developed a strong view of defendant’s culpability in this case, the
court’s perception does not appear unreasonable. Furthermore, given the length and complexity
of the lower court proceedings, reassignment would necessarily involve extensive waste of judicial
resources without a clear indication that such waste is required. See id. Accordingly, we decline
defendant’s request to order reassignment of this matter.
Affirmed.
/s/ Christopher M. Murray
/s/ David H. Sawyer
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