20221122_C360877_34_360877.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UNPUBLISHED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 CASTILLO/DELLEH, Minors. November 22, 2022
No. 360877
Wayne Circuit Court
Family Division
LC No. 2021-000760-NA
Before: GLEICHER, C.J., and SERVITTO and YATES, JJ.
PER CURIAM.
On February 28, 2022 the circuit court took jurisdiction over three of respondent-mother’s
six children based on physical abuse and neglect in their mother’s home and the father of two of
the children’s failure to comply with a safety plan.1 The record evidence clearly supported the
court’s jurisdiction and we affirm.
I. BACKGROUND
On July 30, 2021, Child Protective Services (CPS) received a report that respondent-
mother’s home was filthy, her children were unbathed, and respondent had physically abused
them. When CPS and police agents visited the home, they found CC and respondent’s children
with Wilber Prieto—WP, IP, and EP. The children were dirty and had a foul odor. They could
not remember when they had last bathed or eaten. The children described that respondent would
not let them sleep and forced them to drink energy drinks and clean the house all night. They also
described being struck with belts, spatulas, electrical cords, and a paint ball gun, and accused
respondent of shooting the paint ball gun at them as punishment. Twelve-year-old CC indicated
that respondent often went out at night and left her to babysit her younger siblings.
WP, IP, and EP were returned the care of their father. He secured a court order for sole
custody and those three children are no longer subjects of these child protective proceedings. CC
was sent with her younger half-sisters—AZ and AH—to the home of the younger children’s
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CC’s father abandoned her and was never a party in these proceedings. Wilber Prieto is the father
of WP, IP, and EP. He has taken sole custody of his children. Chris Delleh is the father of AZ
and AH, respondent’s youngest children.
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paternal aunt. The father of AZ and AH—Chris Delleh—took custody of these three children
under a safety plan. Over the following month, Delleh left the children in respondent’s care on
several occasions, even after a CPS agent strictly forbid this. The Department of Health and
Human Services (DHHS) also attempted to provide mental health services for respondent.
Respondent had previously been diagnosed with bipolar and post-traumatic stress disorders, and
had been hospitalized at one point. She had stopped taking her medication and was no longer
under any doctor’s care. Respondent declined the DHHS’s offer of services in this regard, insisting
she did not suffer from mental illness.
On August 30, 2021, the DHHS filed a petition for temporary wardship of CC, AZ, and
AH. The petition alleged that respondent neglected or refused to provide proper or necessary
support, education, medical, surgical, or other care necessary for the children’s health or morals,
or subjected the children to a substantial risk of harm to their mental well-being, or abandoned the
children without proper custody or guardianship. Further, the petition alleged that the “home or
environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of
[respondent,] . . . is an unfit place” for the children. The petition requested the removal of the
children from respondent’s home for reasons including an unfit home, physical neglect, physical
abuse, and threatened harm. The caseworker acknowledged that when she made a surprise visit
on August 12, 2021, the home had running water and adequate food was available. CC indicated
that this change only occurred after CPS became involved. The court granted the petition and the
children were placed in nonrelative foster care.
On October 5, 2021, the DHHS filed an amended petition for temporary wardship. The
circuit court granted that petition as well and continued the children in foster care. While the
children had been wards of the court, they had all exhibited signs of trauma and the court deemed
it unsafe for them to return to respondent’s care. Respondent was initially awarded supervised
parenting time. However, workers observed respondent’s inappropriate treatment of CC and CC
expressed fear of her mother. Accordingly, the DHHS suspended respondent’s visits with CC.
The court ultimately held a trial to establish jurisdiction over the children. The DHHS
presented into evidence the children’s reports of their experiences in respondent’s care. The
children reported that respondent’s home was filled with clutter and garbage. Rotting food
collected maggots. Respondent kept odd hours and forced the children to drink energy drinks so
they could stay up all night and clean the house. The children described being hit with objects and
shot at with the paintball gun. Once, respondent threatened to burn down the house with CC, WP,
EP, and IP inside, and even lit a rug on fire to threaten the children. AZ and AH were too young
to provide much information to the caseworkers. However, CC described that shortly before the
children were taken into care, respondent yanked her sisters’ hair extremely hard, pulling some
hair out by the roots. The children indicated that there was not enough healthy food in the home,
only a small number of snacks. They did not always have running water, and at one point, the
toilet was broken for a month.
Respondent testified at the trial as well. She continued to deny that she suffered from any
mental health issues. She claimed that she suffered from various physical ailments that forced her
to sleep during the day and to be awake at night, and so she tried to adjust the children’s sleep
schedules to match hers. Respondent denied that she actually gave the children energy drinks,
claiming that she gave them Kool-Aid and told them it was an energy drink.
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The circuit court ultimately took jurisdiction over CC, AH, and AZ pursuant to MCL
712A.2(b)(1) and (2). Respondent appeals.
II. ANALYSIS
In child protective proceedings, jurisdiction can be taken over a child if the DHHS
establishes a ground under MCL 712A.2 by a preponderance of the evidence. In re Kellogg, 331
Mich App 249, 253; 952 NW2d 544 (2020). We review the court’s underlying factual findings
for clear error. Id. “A finding of fact is clearly erroneous if the reviewing court has a definite and
firm conviction that a mistake has been committed, giving 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). The circuit court in this case took jurisdiction over the children under MCL 712A.2(b)(1)
and (2),which state, in relevant part:
The court has the following authority and jurisdiction:
* * *
(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age
found within the county:
(1) Whose parent or other person legally responsible for the care and
maintenance of the juvenile, when able to do so, neglects or refuses to provide
proper or necessary support, education, medical, surgical, or other care necessary
for his or her health or morals, who is subject to a substantial risk of harm to his or
her mental well-being, who is abandoned by his or her parents, guardian, or other
custodian, or who is without proper custody or guardianship . . . .
* * *
(2) Whose home or environment, by reason of neglect, cruelty,
drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent
adult, or other custodian, is an unfit place for the juvenile to live in . . . .
The DHHS more than adequately supported grounds to take jurisdiction over the children.
The DHHS established by a preponderance of the evidence that respondent had “neglect[ed] or
refuse[d] to provide proper or necessary support . . . or other care necessary” and had “subject[ed]”
the children “to a substantial risk of harm to [their] mental well-being.” MCL 712A.2(b)(1). The
DHHS also established that respondent’s home was “unfit” based at least on neglect. MCL
712A.2(b)(2).
Four of respondents’ children described the paucity of food in their home. When CPS first
responded to respondent’s home, the children could not remember the last time they had eaten.
Respondent had not provided hygiene care for her children; all four were filthy and malodorous.
CC, who was only 12 years old, detailed how she was left alone to care for her younger siblings at
night.
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Most concerning was the evidence of physical abuse and threatening behavior. The
children described that respondent gave them energy drinks and forced them to stay up all night
cleaning. She struck them with objects and shot paint balls at them as punishment. She pulled her
young child’s hair out by the roots while attacking her. And respondent threatened to burn down
the house with the children inside, going so far as to light a rug on fire. CC underwent
psychological evaluation and therapy was recommended due to the trauma she endured. While
respondent claims that her physical health limited her ability to supervise her children, her medical
diagnoses cannot excuse this physical abuse.
Respondent contends that that the DHHS should have provided in-home services while
leaving the children in her care instead of seeking court jurisdiction over CC, AZ, and AH. The
failure to do so violated her constitutional right to care and custody of her children, respondent
argues. “If the trial court orders placement of the children in foster care, it must make explicit
findings that . . . reasonable efforts to prevent the removal of the child have been made or that
reasonable efforts to prevent removal are not required.” In re Benavides, 334 Mich App 162, 168;
964 NW2d 108 (2020) (quotation marks and citation omitted). But as acknowledged by this Court
in In re Williams, 333 Mich App 172, 184; 958 NW2d 629 (2020), while “it is well recognized as
public policy that separation of children from parents should be avoided if reasonably feasible,”
“not removing a child from an unfit parent can also be hazardous to the child’s health.”
Furthermore, MCL 712A.13a(9) provides for the placement of a child in foster care if the
following conditions are met:
(a) Custody of the child with the parent presents a substantial risk of harm
to the child’s life, physical health, or mental well-being.
(b) No provision of service or other arrangement except removal of the child
is reasonably available to adequately safeguard the child from risk as described in
subdivision (a).
(c) Continuing the child’s residence in the home is contrary to the child’s
welfare.
(d) Consistent with the circumstances, reasonable efforts were made to
prevent or eliminate the need for removal of the child.
(e) Conditions of child custody away from the parent are adequate to
safeguard the child’s health and welfare.
Here, the children were at a substantial risk of harm in respondent’s custody based on
evidence of physical abuse, and maintaining custody was contrary to the children’s welfare
because of that abuse. CPS made reasonable efforts to avoid placing the children in foster care by
creating a safety plan with Delleh, but that plan failed. Accordingly, nonrelative foster care was
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the best means to safeguard the children’s health and welfare.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Deborah A. Servitto
/s/ Christopher P. Yates
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