20240215_C366775_44_366775.Opn.Pdf ( 2024 )

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UNPUBLISHED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 HELFMAN/HOWARD/TALLENT, Minors. February 15, 2024
No. 366775
Wayne Circuit Court
Family Division
LC No. 2020-000804-NA
Before: GADOLA, C.J., and BORRELLO and BOONSTRA, JJ.
PER CURIAM.
Respondent-father1 appeals by right the trial court’s order, entered after a preliminary
hearing in these child protective proceedings, finding that it was contrary to the welfare of his
minor children, SDH and CDH, to remain in his care. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Respondent-father and respondent-mother are the parents of SDH and CDH. In August
2020, CPS specialist LaTicia Sharp met with SDH and CDH after CPS received a report that
respondent-father was abusing alcohol and abusing SDH. SDH and CDH disclosed that
respondent-father drank alcohol and became intoxicated while they were in his care. According
to Sharp, CDH stated that “she is fearful of her father because he hits [SDH].” Sharp also
“observed a video where [respondent-father] was engaging in a physical altercation with [SDH].”
Respondent-father admitted to Sharp that “it was him in the video observed punching” SDH and
that he had hit SDH before, but he denied ever hitting CDH. In September 2020, petitioner, the
Department of Health and Human Services (petitioner or DHHS), filed a petition with the trial
court, alleging that it was contrary to SDH’s and CDH’s welfare to remain in respondent-father’s
care because they “are fearful of being in his care as there are concerns of [respondent-father]
1
Respondent-mother is a party to the trial court proceedings but is not a party to this appeal. We
will not discuss the portions of the proceedings concerning respondent-mother unless relevant to
the issues on appeal.
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abusing alcohol and engaging in physical altercations with his son, [SDH].” Petitioner requested
that the trial court take jurisdiction over the children and place them with the DHHS.
During a preliminary hearing on the petition, Sharp testified that it was contrary to SDH’s
and CDH’s welfare to remain in respondent-father’s care because of “concerns of physical abuse
and also of drinking alcohol, substance use, and the children are fearful.” Sharp requested that
respondent-father be granted supervised parenting time. Sharp admitted that respondent-father
had a relationship with his children, regularly visited with them and provided support, and that he
“offered his home as a plan for the children[.]” The trial court authorized the petition, and removed
SDH and CDH from respondent-father’s care.
During the adjudication bench trial, SDH and CDH recounted an incident in which
respondent-father physically abused SDH while they were staying with him during the summer of
2020. SDH alleged that respondent-father punched him in his chest and arms and “body slammed”
him, causing him to hit his head on a nearby shelf. SDH believed that respondent-father had been
drinking before the altercation because his speech was slurred and he smelled like beer and liquor.
SDH claimed that on 5 to 15 occasions he had seen respondent-father drinking and slurring his
words, and that respondent-father frequently smelled like alcohol. Similarly, CDH stated that she
had observed respondent-father drinking on more than one occasion and could tell when he had
been drinking because of his smell and voice.
The trial court found, by a preponderance of the evidence, that there were grounds to take
jurisdiction over SDH and CDH under MCL 712A.2(b)(1) and (2). The trial court entered an order
of adjudication, and it subsequently entered an order of disposition requiring respondent-father to
comply with a treatment plan that included therapy and substance abuse monitoring and treatment.
Between November 2020 and May 2022, the trial court held several dispositional review
and permanency planning hearings to assess respondent-father’s compliance with his service plan.
In May 2022, the trial court found that respondent-father had successfully completed all of his
court-ordered services, returned the children to his care, and instructed respondent-father to pursue
a change in custody. During subsequent dispositional review and permanency planning hearings,
the trial court addressed issues regarding respondent-father’s finances and his efforts to gain
custody of his children. At a November 2022 hearing, foster care specialist Dominque Dalton
informed the court that respondent-father had recently moved his home and was working with her
to establish new housing and pay his bills. Dalton stated that SDH and CDH were adjusting well,
had been working on communication with respondent-father, and were establishing “a great
relationship with him.” The trial court and the parties agreed that the last barrier respondent-father
needed to overcome was to obtain a custody order. However, as of March 2023, respondent-father
still had not resolved the custody issue.
In April 2023, respondent-father disclosed to foster care specialist Alicia Kirk that “he was
unable to provide for his children” because he had “little to no income and struggles to buy food.”
Respondent-father reported that he was “$500 behind on rent, barely has food in the home, has no
transportation and no phone.” During a home visit a few days later, Kirk reported that she
“witnessed [respondent-father] unsteady on his feet and smelling of alcohol,” “displaying loud
outbursts, stumbling, jumping up and leave the room, then returning seconds later, yelling
unwarranted confrontational comments at the children.” Kirk observed SDH “shouting at his
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father[,] calling him a drunk and a liar.” Kirk also spoke with CDH, who “disclosed that her father
gets drunk often. [CDH] stated her father put his hands around her neck prior to Ms. Kirk arriving
at the home.”
In May 2023, petitioner filed a supplemental petition to again remove SDH and CDH from
respondent-father’s care, claiming that it was contrary to their welfare to remain in the care of
respondent-father because of “his substance abuse and his physical abuse of [CDH],” the condition
of his home, and physical neglect.
During the preliminary hearing on the supplemental petition, Kirk stated that during her
home visit she observed respondent-father intoxicated, unsteady and slurring his words. SDH and
CDH reported to Kirk that respondent-father was drunk. CDH disclosed that “she got into an
argument with her dad about school and he put his arms around her neck.” CDH told Kirk that
she did not want to continue living with respondent-father. Respondent-father told Kirk that “he
could not control the children” and “could not get them to school on time.” He also told her “the
state dropped the kids off and did not provide any help or any resources and that he couldn’t feed
the kids and he just said he was struggling.”
Kirk believed that it was contrary to the children’s welfare to remain with respondent-
father because of concerns regarding substance abuse and physical abuse, and she recommended
supervised visitation. Kirk stated that she had made reasonable efforts to prevent removal,
including: providing respondent-father with financial support through gift cards; reaching out to
the Friend of the Court (FOC) to address child support issues; identifying a relative placement for
the children in Ohio if they were removed from respondent-father’s care; creating a safety plan for
the children; making home visits; and offering the services provided for in respondent-father’s
previous treatment plan. Kirk testified that she was currently attempting to get the children access
to therapeutic services, and she opined that placement with a relative would meet their needs.
During cross-examination, Kirk admitted that her other visits to respondent-father’s home “were
fine” and did not raise any concerns. Kirk also noted that respondent-father had been able to secure
food assistance, had previously complied with his treatment plan, and was committed to having
his children returned to him.
Petitioner requested that the trial court authorize the petition, remove SDH and CDH from
respondent-father’s care, and order supervised visitation because “the same conditions that led to
the removal of the children in 2020 appear to be occurring today.” The lawyer-guardian ad litem
concurred, opining that respondent-father had not benefited from his previous services.
Respondent-father’s counsel argued that it would be premature to remove the children because
respondent-father had successfully completed his previous treatment plan, had been paying child
support despite having the children in his custody, and, except for the April 2023 home visit, there
were no other issues or incidents with the children. Respondent-father’s counsel requested that
the trial court order respondent-father to complete services in lieu of removal.
The trial court authorized the petition and removed the children from respondent-father’s
care, finding that it was contrary to the children’s welfare to remain in respondent-father’s home.
This appeal followed.
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II. STANDARD OF REVIEW
We review for clear error a trial court’s factual findings regarding grounds for removal. In
re Benavides, 334 Mich App 162, 167; 964 NW2d 108 (2020). A finding is clearly erroneous if
the reviewing court “is left with a definite and firm conviction that a mistake has been made.” Id.(quotation marks and citation omitted). Any error in the trial court’s removal order is not grounds
for reversal unless it would be inconsistent with substantial justice to permit it to stand. In re
Williams, 333 Mich App 172, 185; 958 NW2d 629 (2020).
III. ANALYSIS
Respondent-father argues that the trial court erred by finding that there was sufficient
evidence to remove the children from his custody and by failing to consider all of the conditions
listed under MCR 3.965(C)(2) when making its determination. We disagree.
After conducting a preliminary investigation, the DHHS may petition the family division
of the circuit court to take jurisdiction over a child. In re Ferranti, 504 Mich 1, 15; 934 NW2d
610 (2019). The petition must contain “[t]he essential facts that, if proven, would allow the trial
court to assume jurisdiction over the child.” Id. (quotation marks and citation omitted); see also
MCR 3.961(B)(3) and MCL 712A.2(b). After a trial court receives the petition and holds a
preliminary hearing, it “may authorize the filing of the petition upon a finding of probable cause
that one or more of the allegations are true and could support the trial court’s exercise of
jurisdiction under MCL 712A.2(b).” In re Ferranti, 504 Mich at 15.
If the petition is authorized, the trial court must decide “whether the child should remain
in the home, be returned home, or be placed in foster care pending trial.” In re Benavides, 334
Mich App at 167 (quotation marks and citation omitted). MCL 712A.13a(9) governs the court’s
removal decision and provides:
The court may order placement of the child in foster care if the court finds
all of the following conditions:
(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 the 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.
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MCR 3.965(C)(2) is identical in substance to MCL 712A.13a(9). “MCR 3.965(C)(2) and
MCL 712A.13a(9) explicitly require that the trial court find all the factors prior to removing a
child from a parent’s care.” In re Williams, 333 Mich App at 184 (emphasis in original). However,
the trial court is not required to articulate extensive findings addressing every factor. Id. at 183.
Instead, the trial court’s findings must be sufficient for an appellate court to conduct a meaningful
review. Id.
During the preliminary hearing, the trial court authorized the petition and removed the
children from respondent-father’s care, stating:
The testimony presented today supports the claim by [petitioner] that these
children are at risk in father’s care due to substance abuse, in this case alcohol
impairs his ability to appropriately parent. The children report that the father was
drunk that day and also other days and on the day that the petitioner visited, the
father was observed to be stumbling. He had slurred speech. It was chaos in the
home and the claim that he smelled of alcohol.
The testimony is clear that these children are at risk in their environment.
The trial court’s statements establish that it expressly considered MCR 3.965(C)(2)(a) and
MCL 712A.13a(9)(a). Moreover, in the order of removal, the trial court indicated the issues
presented were “similar to those which were the basis for jurisdiction in this case” and that each
of the factors in MCR 3.965(C)(2) and MCL 712A.13a(9) had been established.
The record supports the trial court’s conclusions. Despite respondent-father’s completion
of services addressing his substance abuse and physical abuse issues after the children were
removed from his care in October 2020, Kirk observed during her April 2023 visit to respondent-
father’s home that respondent-father was “unsteady on his feet, smelling strongly of alcohol and
slurring his words.” SDH and CDH reported to Kirk that respondent-father had been drunk, and
CDH disclosed that “she got into an argument with her dad about school and he put his arms around
her neck.” Respondent-father admitted to Kirk that “he could not control the children,” “could not
get them to school on time,” and was struggling to provide for them financially. These facts
support the trial court’s findings, under MCL 712A.13a(9)(b) and (c) and MCR 3.965(C)(2)(b)
and (c), that there were no other arrangements other than removal to protect the children from harm
and that the children would be at risk if they remained in respondent-father’s home.
Kirk testified that she made reasonable efforts to prevent removal by providing respondent-
father with financial support, reaching out to the FOC to address his child support issues,
identifying a relative placement in Ohio, creating a safety plan for the children, and conducting
home visits. Kirk also indicated that she was attempting to get the children access to therapeutic
services. These facts satisfy the requirements of MCL 712A.13a(9)(d) and (e) and
MCR 3.965(C)(2)(d) and (e) that petitioner demonstrate that reasonable efforts were made to
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prevent removal and that the children’s needs would be met in a relative placement. Because
petitioner presented sufficient evidence to establish each factor, there is no clear error. Benavides,
334 Mich App at 167.
Affirmed.
/s/ Michael F. Gadola
/s/ Stephen L. Borrello
/s/ Mark T. Boonstra
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