20221229_C361596_31_361596.Opn.Pdf ( 2022 )

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UNPUBLISHED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 CHARLES, Minors. December 29, 2022
No. 361596
Wayne Circuit Court
Family Division
LC No. 2022-000477-NA
Before: CAVANAGH, P.J., and K. F. KELLY and GARRETT, JJ.
PER CURIAM.
Respondent-mother appeals by right the trial court’s order after preliminary hearing
authorizing a petition for custody and removing respondent’s children from her. Finding no errors
warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
On March 31, 2022, the Department of Health and Human Services (“Department”) filed
a petition for removal and permanent custody of respondent’s two children. The petition alleged
that it was contrary to the children’s welfare to remain in respondent’s care because respondent
mentally and physically abused her children and had a history of untreated mental illnesses. The
petition was filed after respondent’s two-month-old baby died under suspicious circumstances.
All steps taken by Children’s Protective Services (CPS) to prevent the children’s removal failed.
At the preliminary hearing, respondent waived her right to a probable cause determination.
The Department presented evidence at the hearing that respondent abused her son, had untreated
mental health issues, and that respondent’s son was afraid of her. The Department also introduced
evidence that marks consistent with physical abuse were found on respondent’s son. The trial
court authorized the petition and removed the children, finding that it was contrary to the children’s
welfare to remain with respondent. This appeal followed.
II. STANDARDS OF REVIEW
We review the trial court’s findings of fact for clear error. In re Benavides, 334 Mich App
162, 167; 964 NW2d 108 (2020). A finding is clearly erroneous if we are “left with a definite and
firm conviction that a mistake has been made.” Id. (quotation marks and citation omitted). The
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proper interpretation and application of statutes and court rules is reviewed de novo. In re
Williams, 333 Mich App 172, 178; 958 NW2d 629 (2020).
III. DISCUSSION
On appeal, respondent argues that the trial court clearly erred when it found that it was
contrary to the children’s welfare to remain with respondent and when it authorized the petition.
We disagree.
Once the trial court authorizes a petition, the court must decide whether the child should
be returned home or placed in foster care pending trial. Benavides, 334 Mich App at 167. To
place the child into foster care, the court “must make explicit findings that ‘it is contrary to the
welfare of the child to remain at home,’ MCR 3.965(C)(3), and ‘reasonable efforts to prevent the
removal of the child have been made or that reasonable efforts to prevent removal are not required,’
MCR 3.965(C)(4).” Id. at 168. See also MCL 712A.13a(9).
On appeal, respondent argues that there was insufficient evidence to support the trial
court’s finding that it was contrary to the welfare of the children to remain with her. We disagree.
The trial court found that respondent had untreated mental health issues; respondent’s baby had
died with blood in his stools suggesting suspicious circumstances; and respondent’s son disclosed
in a forensic interview that he was abused, was afraid of respondent, and said respondent stated he
was responsible for his brother’s death, and that he was bad luck for the family. The court also
found that respondent’s son had lesions on his foot that were consistent with physical abuse or
burns without any explanation from respondent, and that respondent physically assaulted her son
while he was in the safety plan. Respondent was referred to Team Wellness for mental health
treatment in 2018 but there was no record of respondent attending treatment. Finally, the court
included in its order that it was concerned for the children because of respondent’s “erratic
behaviors, aggression testified to on this record as well as her aberrant behaviors.”
Aggressive behavior with a child along with suspicious marks on the child’s body can
support a finding that it is contrary to a child’s welfare to remain with the respondent. Benavides,
334 Mich App at 169 (stating it was not clear error for the trial court to find it was contrary to the
children’s welfare to stay with the respondent where “[t]he children had a history of suspicious
bruises, and respondent failed to stop ‘roughhousing’ with the children despite the agency’s
request.”). Respondent was witnessed acting aggressively with her son and lesions consistent with
abuse were found on him. Though the evidence of physical and emotional abuse was in relation
to respondent’s son, “[t]he doctrine of anticipatory neglect recognizes that [h]ow a parent treats
one child is certainly probative of how that parent may treat other children.” In re Kellogg, 331
Mich App 249, 259; 952 NW2d 544 (2020) (quotation marks and citation omitted; second
alteration in original). “Abuse or neglect of the second child is not a prerequisite for jurisdiction
of that child and application of the doctrine of anticipatory neglect.” Id. (quotation marks and
citation omitted). Because of the evidence of physical and emotional abuse, the trial court did not
clearly err when it found that the custody of the children with respondent presented a substantial
risk of harm to their life, physical health, or mental well-being. See MCL 712A.13a(9)(a).
Respondent claims the evidence was insufficient because the CPS investigator’s testimony
was improperly made on the basis of hearsay. However, a trial court may consider hearsay
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evidence so long as there are adequate indicia of trustworthiness accompanying the statement.
MCR 3.965(C)(3). When reviewing findings for clear error, this Court must give “due regard to
the trial court’s special opportunity to observe the witnesses.” In re BZ, 264 Mich App 286, 296-
297; 690 NW2d 505 (2004). Respondent’s blanket assertion that the evidence was insufficient
because the CPS investigator relied on hearsay is plainly wrong. The investigator relied on
statements made by respondent and the children, and respondent has not pointed to anything to
indicate that the statements were not trustworthy.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
/s/ Kristina Robinson Garrett
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