in Re dockery/mitchell/singleton Minors ( 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
UNPUBLISHED
In re DOCKERY/MITCHELL/SINGLETON March 12, 2020
Minors.
No. 349741
Wayne Circuit Court
Family Division
LC No. 17-000068-NA
Before: STEPHENS, P.J., and CAVANAGH and SERVITTO, JJ.
PER CURIAM.
In this child protective proceeding, respondent mother appeals as of right an order awarding
the father, M. Miles, sole legal and physical custody of the minor child, MM, and terminating its
jurisdiction and wardship over MM. Respondent previously had sole legal and physical custody
of MM. We affirm.
Respondent has four children: MM, JS, DD, and KM. This matter originated as a child
protective action initiated by the Department of Health and Human Service (DHHS) to make
respondent’s four children temporary court wards. During the pendency of the child protective
proceedings, respondent’s children were removed from her care and MM was placed with her
father, Miles. The court assumed jurisdiction over the children and ordered respondent to
participate in services to work toward reunification. Subsequently, Miles filed a motion for sole
custody of MM. In excess of two years after the children came under the court’s jurisdiction,
respondent completed the terms of her treatment plan and her children were returned to her
custody, with the exception of MM who remained with Miles. The court awarded Miles sole
physical and legal custody of MM. After Miles was awarded custody of MM, the court terminated
its jurisdiction and wardship over MM. Respondent contends that the court erred because the
award of sole physical and legal custody of MM to Miles was not in MM’s best interests. We
disagree.
The trial court’s findings of fact in a child custody case are reviewed under the great weight
of the evidence standard. In re AP, 283 Mich. App. 574, 590; 770 NW2d 403 (2009). “The court’s
factual findings are against the great weight of the evidence if the evidence clearly preponderates
in the opposite direction.” Id. Discretionary decisions, including the court’s ultimate award of
custody, are reviewed for an abuse of discretion. Id.; McIntosh v McIntosh, 282 Mich. App. 471,
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475; 768 NW2d 325 (2009). “An abuse of discretion exists when the trial court’s decision 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.” Berger v Berger, 277 Mich. App. 700, 705; 747
NW2d 336 (2008). The trial court’s interpretation and application of law are reviewed for clear
error. In re AP, 283 Mich. App. at 590. “Clear legal error exists when the trial court incorrectly
chooses, interprets, or applies the law.” Id.
Respondent first argues that the trial court should have retained jurisdiction and continued
the child protective proceedings to ultimately return MM to respondent. We disagree.
This matter involves the Juvenile Code, MCL 712A.1 et seq., and the Child Custody Act
(CCA), MCL 722.21 et seq. Both acts allow the state to “become involved in a child’s upbringing
under certain limited circumstances when a child’s welfare is affected.” In re AP, 283 Mich. App.
at 592. In actions involving the legal or physical custody of a child, courts are bound by the CCA.
Id. And once a custody order is entered, a court cannot change the award of custody without
following certain procedures designed to prevent unwarranted and disruptive custody changes. Id.
But when a child’s safety is threatened, the juvenile code governs the court’s involvement in the
parent-child relationship. Id. Orders entered by a juvenile court with jurisdiction supersede all
previous court orders, including custody orders, during the pendency of the juvenile proceedings.
Id. at 593. Once the juvenile court dismisses its jurisdiction, however, previous custody orders
have full force and effect because the CCA vests the domestic relations court with continuing
jurisdiction over the custody matter. Id. at 593-594. The circuit court presiding over a proceeding
under the juvenile code may, however, consider related matters under the CCA, including a motion
for a change in custody. Id. at 598-599. But the court must effectuate any changes or modifications
in accordance with the procedural and substantive requirements of the CCA. Id. at 578.
This matter originated as a child protective action initiated by the DHHS to obtain
jurisdiction and to make respondent’s children temporary wards. According to the petition
authored by DHHS, it was contrary to MM’s welfare to remain with respondent because of
respondent’s untreated mental health issues. During this proceeding brought under the juvenile
code, Miles filed a motion for a change of custody. To grant a change of custody under the CCA,
the trial court must determine whether proper cause or a change of circumstances existed such that
a custody modification was in the child’s best interests. Id. at 600. The party seeking the change
must establish either proper cause or a change of circumstances. Corporan v Henton, 282 Mich
App 599, 603; 766 NW2d 903 (2009). To constitute a change of circumstances meriting a
consideration of a custody change, there must have been a change in conditions pertaining to
custody that has, or could have, a significant impact on the child’s well-being since the entry of
the last custody order. Id. at 604, quoting Vodvarka v Grasmeyer, 259 Mich. App. 499, 513; 675
NW2d 847 (2003). Removal of a child from the home by CPS is sufficient evidence of a change
in circumstances to warrant consideration of a change in custody. Shann v Shann, 293 Mich. App.
302, 306; 809 NW2d 435 (2011). In this case, after the trial court examined the updated custody
report from the Clinic for Child Study, the court found by a preponderance of the evidence that a
change of circumstances had occurred because MM was removed from respondent’s care and
custody in January 2017. After MM was removed from respondent’s care, MM was placed with
Miles and MM had been residing with Miles for the past two years. This was sufficient evidence
to establish a change in circumstances warranting a reevaluation of custody. See id.
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Respondent argues that trial court should have granted her custody because she rectified
the circumstances that led to her children being removed from her care. In essence, respondent
argues that, because MM’s placement with Miles was temporary, MM should be returned to her
care. But respondent did not voluntarily transfer custody of MM. MM and her siblings were
removed from respondent’s care by DHHS because of respondent’s mental health issues. In
addition, MM’s placement with Miles has not been temporary. There was no agreement regarding
when, or if, MM would be returned to respondent, and MM has resided with Miles for the past two
years. MM has established stability and permanency with Miles. Therefore, consistent with the
purposes underlying the CCA, it is in MM’s best interest “to minimize disruptive changes to
custody arrangements,” and keep her in Miles’s care. See Kaeb v Kaeb, 309 Mich. App. 556, 567;
873 NW2d 319 (2015).
Next, the trial court had to determine whether a custodial environment existed. See In re
AP, 283 Mich. App. at 604. Whether an established custodial environment exists is a question of
fact that the trial court must address before it determines the child’s best interests. Brausch v
Brausch, 283 Mich. App. 339, 356 n 7; 770 NW2d 77 (2009). A custodial environment is
established 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.
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).]
“A custodial environment can be established as a result of a temporary custody order, in violation
of a custody order, or in the absence of a custody order.” Berger, 277 Mich. App. at 707. In
addition, “[r]epeated changes in physical custody and the uncertainty resulting from an upcoming
custody trial can destroy an established custodial environment.” Rains v Rains, 301 Mich. App.
313, 333; 836 NW2d 709 (2013).
The trial court concluded that MM’s custodial environment was with Miles. MM was
removed from respondent’s care because of concerns regarding respondent’s untreated mental
health problems. During the child protection proceedings, respondent refused to take her
medication and participate in therapy on multiple occasions. Respondent also struggled to benefit
from any of the court-ordered services. It took respondent over two years to complete the court-
ordered services, and during that time MM had been residing with Miles. After MM was placed
with him, Miles became actively involved in her life, and the court noted that MM was
“flourishing.” Therefore, the trial court did not err by finding that an established custodial
environment existed with Miles. “If an established custodial environment exists with one parent
and not the other, then the noncustodial parent bears the burden of persuasion and must show by
clear and convincing evidence that a change in the custodial environment is in the child’s best
interests.” In re AP, 283 Mich. App. at 601.
The court, however, failed to consider whether an established custodial environment
existed with both parties. Respondent was granted sole physical and legal custody of MM in 2008,
and for the first nine years of MM’s life she resided exclusively with respondent. Miles was largely
absent from MM’s life before MM was placed in his care in 2017. After MM was placed in Miles’
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care, MM continued to have supervised visits with respondent. Therefore, although MM resided
exclusively with Miles for two years, there is the possibility that an established custodial
environment existed with both parties. However, even if the court had determined that an
established custodial environment existed with both parents, a joint established custodial
environment may be disrupted if clear and convincing evidence indicated that a change was in the
best interests of the child. Powery v Wells, 278 Mich. App. 526, 529; 752 NW2d 47 (2008). And,
here, after evaluating the best-interest factors, the court found by clear and convincing evidence
that it was in MM’s best interests to grant sole physical and legal custody to Miles. Therefore, the
court used the appropriate standard in determining whether a change in custody was warranted.
See In re AP, 283 Mich. App. at 602.
The best-interest factors are specified in MCL 722.23. “A trial court must consider and
explicitly state its findings and conclusions with respect to each of these factors.” Foskett v
Foskett, 247 Mich. App. 1, 9; 634 NW2d 363 (2001). “A court need not give equal weight to all
the factors, but may consider the relative weight of the factors as appropriate to the circumstances.”
Sinicropi v Mazurek, 273 Mich. App. 149, 184; 729 NW2d 256 (2006). In its discussion of the best-
interest factors, the circuit court held that factors (b), (d), (e), (g), (h), and (k) favored Miles. The
court determined that factors (a), (c), and (j) equally favored both respondent and Miles, and that
factor (f) favored respondent. With respect to factor (i), the court stated that it had information
regarding MM’s preference, but elected not to disclose the child’s preference.
Respondent challenges the trial court’s determination that it was in MM’s best interests to
grant Miles’s motion for sole physical and legal custody. Respondent also contends that it is in
MM’s best interests to be in the same household as her siblings. We disagree.
Respondent argues that the record does not support the trial court’s finding that factor (a)
did not weigh in her favor. This factor considers “[t]he love, affection, and other emotional ties
existing between the parties involved and the child.” MCL 722.23(a). Specifically, respondent
argues that the “[t]he court reasoned that the best interest of [MM] did not include the love and
bond between the child and her mother and siblings.” However, the circuit court determined this
this factor equally favored both respondent and Miles because the court recognized that both
parties had developed an emotional bond with MM.
Respondent also argues that the trial court failed to adequately consider that she had
rectified the problems that led to her children being removed from her care. Respondent contends
that she has successfully completed all of the court-ordered services, that she is treating her mental
health issues, and that JS, DD, and KM have been returned to her care. The trial court specifically
recognized that MM and her siblings had been removed from respondent’s care. “Since that time
[Miles] has stepped up and cared for his child.” Although respondent completed her court-ordered
services, it took her over two years to do so, and during that time MM had been residing with
Miles. Further, while respondent was in the process of completing the services, she continually
refused to take her medications and had assaulted JS on one occasion. Respondent also continued
to maintain a domestic relationship with another individual, despite their history of violent
interaction. The trial court emphasized that Miles had provided MM with a stable home and that
MM would maintain continuity if she remained with Miles. Specifically, MM had been in the
same home for the past two years, “whereas when [MM] was with the [respondent] they had moved
on more than a couple occasions for one reason or another. . . .” Further, the circuit court noted
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that MM has been “flourishing” since she has been living with Miles. The Clinic Evaluation
Report provided that MM’s grades have improved significantly and that MM has begun
participating in after-school activities.
Respondent further contends that it is in MM’s best interests to be in the same household
as her siblings. “[I]n most cases it will be in the best interests of each child to keep brothers and
sisters together. 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 v Wiechmann, 212 Mich
App 436, 440; 538 NW2d 57 (1995) (footnote omitted). After examining the relevant factors, the
court determined that it was clearly in MM’s best interests to remain with Miles. The court noted
that MM also resides with her two half siblings at Miles’ home and that MM has developed a
relationship with her half siblings. The court encouraged respondent and Miles to work together
so that MM could maintain her relationship with DD, JS, and KM, and the court ordered that
respondent should have “liberal” parenting time. We conclude that the trial court did not abuse its
discretion in awarding Miles physical and legal custody of MM. See Berger, 277 Mich. App. at
705.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
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