in Re B M Davis Minor ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re B. M. DAVIS, Minor. July 25, 2017
No. 335892
Macomb Circuit Court
Family Division
LC No. 2016-000184-NA
Before: GLEICHER, P.J., and M. J. KELLY and SHAPIRO, JJ.
PER CURIAM.
Respondent appeals as of right from the trial court’s order of adjudication pursuant to
MCL 712A.2(b). We affirm.
The minor child, BD, was living with her mother at the time of removal. Respondent
lived in Akron, Ohio and only saw BD when her mother would take her to visit. BD was
removed from her mother’s home following allegations of neglect and physical abuse.
Specifically, the Department of Health and Human Services (DHHS) brought this case after
BD’s mother hit her in the arms with a studded belt. Additionally, DHHS found that the home
BD was living in with her mother was in a “deplorable” condition. The allegations against
respondent were that he did not provide physically, financially, or emotionally for BD, that he
did not visit BD, that he had a history of substance abuse and domestic violence, and that he
failed to protect BD. Along with the petition for adjudication, the DHHS sought termination of
respondent’s parental rights at the initial disposition. Following the adjudication trial, the trial
court found statutory grounds to adjudicate respondent under MCL 712A.2b(1) and (2), found
statutory grounds for termination of his parental rights under MCL 712A.19b(3)(j), but found
that termination was not in BD’s best interests. Respondent contends that the facts did not
support the trial court’s order of adjudication.1
Jurisdiction is established pursuant to MCL 712A.2(b). When the petition contains
allegations of abuse or neglect against a parent, the trial court must find that the petitioner has
proved by a preponderance of the evidence one or more statutory ground for the taking of
jurisdiction under MCL 712A.2(b). In re Kanjia, 308 Mich App 660, 663-664; 866 NW2d 862
1
We review the trial court’s decision to exercise jurisdiction for clear error in light of its findings
of fact. In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004).
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(2014); MCR 3.972(C)(1) and (E). In its order of adjudication, the trial court found the
following statutory grounds to exercise jurisdiction: (1) “failure to provide, when able to do so,
support, education, medical, surgical, or other necessary care for health or morals,” and (2) “an
unfit home environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on
the part of a parent, guardian, nonparent, adult, or other custodian.” Specifically the trial court
found as grounds for adjudication, respondent’s failure to provide support and an unfit home
environment by reason of criminality.
There was sufficient evidence that respondent failed to support BD. Although respondent
claimed that child support in the amount of $73 was taken out of his monthly SSI payments, and
that there was a court order for child support, he never produced any documentation to support
this testimony. He testified that he did not know he was supposed to produce it, and that he
would fax it to the court. However, the evidence showed that, before the adjudication trial,
respondent was instructed several times to produce the documentation and was informed that
without it the agency could not complete the interstate compact, which was necessary for
respondent to receive services where he resided in Ohio. He was contacted by the first worker in
May 2016, who advised him that she could not find any documentation in his county court
concerning payments of child support and that he needed to provide documentation. The second
worker testified that she asked for this information again in August 2016. At the trial,
respondent testified that he received his SSI check once a month and that it showed money was
taken out for child support. He further testified that he would produce it, but he returned to court
and continued the trial without producing documentation. In addition, the child’s mother
testified that respondent did not pay child support, although she acknowledged that he did
provide some school supplies and clothing from time to time. The lack of any documentation
certainly supported the trial court’s conclusion. Respondent essentially asked the court to rely on
his testimony despite the lack of documentation. However, respondent’s credibility was greatly
weakened by the evidence that he lied to the workers about his criminal history and prior
convictions.
Additionally, there was ample evidence that respondent had reason to know of BD’s
mother’s criminal history and the effect it had on BD’s home but that he did not seek to remove
BD from that environment. Respondent claimed that he did not know about the mother’s history
of incarceration for child abuse of the child’s older sibling. However, when the worker informed
respondent that his child had been removed from the mother, respondent asked if the removal
was related to “the stuff with [the sibling],” and then said that was a long time ago and should
not have anything to do with things now. This testimony belies his claim of ignorance. Indeed,
respondent took care of the abused sibling while her mother was incarcerated for that crime.
Therefore, the fact that he never sought custody of BD and never questioned her situation while
she was living with the mother was sufficient evidence of neglect.
We find that there was also sufficient evidence of respondent’s own criminality.2 In
order for the trial court to assume jurisdiction on the basis of criminality, the DHHS does not
2
Respondent argues that evidence of his own criminal history should not have been considered
because the trial court had made statements that respondent contends suggested it would only
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need to prove that the respondent was convicted of a crime but was required to “demonstrate by
a preponderance of the evidence only that the respondent engaged in criminal behavior.” In re
MU, 264 Mich App 270, 279-280; 690 NW2d 495 (2004).
At trial, respondent admitted to an extensive criminal history, as recent as three years
earlier, and the child’s mother testified regarding incidents of domestic violence that occurred in
the child’s presence. Respondent admitted that he was charged with gross sexual force in 1980,
was convicted of grand theft of a motor vehicle in 1984, was convicted of aggravated drug
trafficking in 1991, and was convicted of domestic violence in 1992. Respondent denied that he
was also convicted of domestic violence in 1993 or 2001 and claimed only one domestic
violence conviction. However, the mother testified regarding various incidents of domestic
violence. Respondent admitted to a conviction of possession of cocaine and carrying a
concealed weapon in 2008, a conviction of tracking marijuana in April 2013, and convictions of
attempted drug abuse and probation violation in August of 2013. Although he had not been
accused of any criminal offenses since being released from probation two years before the trial,
there was ample evidence based on respondent’s admissions and the mother’s testimony that the
home, by reason of criminality, was an unfit place for the minor child to live. The trial court did
not clearly err in entering an order of adjudication pursuant to MCL 712A.2(b)(1) and (2).3
Respondent also argues that the trial court erred in finding statutory grounds existed for
termination of his parental rights under MCL 712A.19b(3)(j). However, because the trial court
did not ultimately terminate respondent’s parental rights, as it found that to do so would not have
consider the evidence of his criminal history in its determination of the child’s best interests.
The statements that respondent refers to were in response to an objection respondent made
seeking to exclude evidence of his criminal convictions that occurred before BD’s birth. In
overruling this objection, the trial court stated that evidence of those convictions would be
relevant to any best interest determination, but it did not specifically state that it would not
consider them for adjudication purposes as well. Evidence of respondent’s criminal history
would also have been relevant to the adjudication issue because “criminality” is listed as a factor
that can cause adjudication. MCL 712A.2(b)(2); In re Mu, 264 Mich App 270, 278-280; 690
NW2d 495 (2004). Evidence that is relevant may be admitted unless barred by some other rule.
In re Dearmon, 303 Mich App 684, 696; 847 NW2d 514 (2014); MRE 401; MRE 402. See also
MCR 3.972(C)(1). Respondent’s admissions to criminal convictions were certainly relevant to
the adjudication issue. Therefore, the trial court did not err in considering them for purposes of
adjudication.
3
We find that In re Curry, 113 Mich App 821; 318 NW2d 567 (1982), upon which respondent
relies, is distinguishable from this case. In Curry, the issue was whether the probate court, under
the “without proper custody or guardianship” language of MCL 712A.2(b)(1), could assume
jurisdiction over minor children when the parents were incarcerated and had placed them in the
custody of relatives and there had been no showing that the children’s living environment was
unfit or unwholesome. Id. at 823-824, 830. We determined that the “criminal status alone of
these respondents is not a sufficient basis for the . . . assumption of jurisdiction.” Id. at 830.
“Some showing of unfitness of the custodial environment [is] necessary.” Id. In this case,
respondent was not adjudicated simply because of his past criminal status, the trial court made a
specific finding on the unfitness of BD’s custodial environment.
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been in BD’s best interests, respondent’s claim of error on this issue is not ripe for review. “The
doctrine of ripeness is designed to prevent the adjudication of hypothetical or contingent claims
before an actual injury has been sustained.” Huntington Woods v Detroit, 279 Mich App 603,
615; 761 NW2d 127 (2008) (quotations and citation omitted). Because respondent’s parental
rights have not been terminated, he has not sustained an actual injury as a result of the trial
court’s finding. Should respondent demonstrate progress with services and eventually regain
custody of BD then he will not have suffered any injury as a result of the trial court’s actions. Id.
at 615-616 (“A claim is not ripe if it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.”) (Quotations and citation omitted).
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
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