In Re allie/lofland Minors ( 2023 )

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UNPUBLISHED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 ALLIE/LOFLAND, Minors. September 28, 2023
No. 365319
Wayne Circuit Court
Family Division
LC No. 2023-000208-NA
Before: SHAPIRO, P.J., and M.J. KELLY and CAMERON, JJ.
PER CURIAM.
Respondent1 appeals as of right the trial court’s order removing her minor children, TDA
and BJL, from her care and custody and removing respondent from the family home. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In February 2023, petitioner, the Michigan Department of Health and Human Services
(DHHS), filed a temporary custody petition alleging respondent failed to provide support for the
children and respondent’s home was an unfit place for them. The petition further alleged
respondent had a lengthy history of domestic violence with the fathers of both her children, which
often occurred in front of the children. BJL would often intervene in the domestic violence
incidents to protect respondent, and would often be harmed in the process. While the record
indicates the fathers were usually the instigators, respondent often responded violently herself, and
was arrested for domestic violence after one altercation. During another alteracation, BJL recorded
the incident on respondent’s cell phone, but, when police asked to review the footage, respondent
reported she had deleted the video. The petition noted respondent’s history of domestic violence
with the children’s fathers went back as far as 2014.
At the preliminary hearing, a Children’s Protective Services (CPS) caseworker testified
about respondent’s history of domestic violence and history of failing to benefit from the numerous
services offered to her. At the close of the hearing, respondent did not contest the authorization of
1
The fathers of both TDA and BJL were also involved in the lower court proceedings. However,
only respondent appeals the trial court’s order.
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the petition, which the trial court then authorized. The trial court found it was “clearly contrary to
the welfare of [TDA and BJL] to remain in the home of any of the parents[,]” and ordered removal
of both children from respondent’s care. The trial court concluded the “long history of domestic
violence[,]” and the fact respondent “failed repeatedly to protect her own children from a home
full of domestic violence and criminality[,]” put TDA and BJL at risk of harm in respondent’s
care. Further, even though respondent was a victim of domestic violence, “she herself has been
engaged in domestic violence, [including] assaulting, and slashing, [and] hammering [one of the
fathers] in the presence of her children.” The trial court also found DHHS “made more than
reasonable efforts to prevent removal.” The trial court could not think of a time “where there [had]
been so many referrals” for a respondent, including referrals to Families First, domestic violence
counseling, and a victim’s advocate. The trial court ordered respondent to leave her home, and
respondent was not allowed to be within 500 yards of her home, where TDA and BJL were to
continue to reside with their maternal uncle. Respondent now appeals.
II. ANALYSIS
On appeal, respondent argues the trial court erred when it removed TDA and BJL from her
care and custody because there was insufficient evidence to support the requirements of MCL
712A.13a(9) and MCR 3.965(C)(2) and (3). Specifically, respondent argues there was minimal
evidence it was contrary to the children’s welfare to stay with respondent, and petitioner did not
make reasonable efforts to prevent the removal of TDA and BJL. We disagree.2
“At the preliminary hearing, the court must decide whether to authorize the filing of the
petition and, if authorized, 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 162, 167; 964 NW2d 108(2020).
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.
2
DHHS argues on appeal respondent failed to preserve this issue. While we recognize
respondent’s failure to raise her challenge to the trial court failed to preserve this issue, we
nonetheless choose to review respondent’s arguments on the merits to prevent manifest injustice.
Heaton v Benton Construction Co, 286 Mich App 528, 537; 780 NW2d 618 (2009).
This Court reviews unpreserved claims of error for plain error affecting substantial rights.
In re Pederson, 331 Mich App 445, 463; 951 NW2d 704 (2020). “Even if an error occurred, this
Court will not disturb the trial court’s order unless it would be ‘inconsistent with substantial
justice’ to permit the order to stand.” In re Williams, 333 Mich App 172, 178; 958 NW2d 629(2020), quoting MCR 2.613(A).
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(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. [MCL 712A.13a(9).3]
“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 172, 184; 958
NW2d 629 (2020). MCR 3.965(C)(3) reiterates that contrary-to-the-welfare findings must be
made in writing or on the record, and that, “[i]f continuing the child’s residence in the home is
contrary to the welfare of the child, the court shall not return the child to the home, but shall order
the child placed in the most family-like setting available consistent with the child’s needs.”
Additionally, “[r]easonable efforts findings must be made[,]” and “[w]hen the court has placed a
child with someone other than the custodial parent, guardian, or legal custodian, the court must
determine whether reasonable efforts to prevent removal of the child have been made or that
reasonable efforts to prevent removal are not required.” MCR 3.965(C)(4).
Respondent argues there was insufficient evidence to support the trial court’s findings
under MCL 712A.13a(9). We disagree.
Respondent has been involved in multiple domestic violence incidents with the fathers of
both her children dating back as far as 2014. As noted, these incidents often occurred in front of
the children, and the record indicates that during at least two of these incidents, BJL tried to
intervene to protect respondent and was harmed in the process. While respondent was usually the
victim in these incidents, she was arrested after one of them, and the record indicates respondent’s
responses in these situations were also violent. Furthermore, respondent declined to press charges
against her husband, one of the fathers, and went so far as to erase evidence of the assault recorded
by BJL on her cell phone. Respondent’s participation in domestic violence incidents in front of
her children and her failure to protect them by removing the fathers from their presence,
particularly in light of the fact BJL has been physically harmed from trying to intervene in these
incidents, supports the trial court’s finding that the children would be at risk of harm should they
remain in respondent’s custody. MCL 712A.13a(9)(a). Furthermore, respondent allowed the
fathers to continue being in her and her children’s lives, despite being offered, and having
completed, various services for domestic abuse victims. These facts supports the trial court’s
finding that there was no other arrangement besides removal to protect the children from harm,
3
“MCR 3.965(C)(2) is identical in substance to MCL 712A.13a(9).” Benavides, 334 Mich App
at 168 n 2.
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and that allowing the children to continue living with respondent was contrary to their welfare.
MCL 712A.13a(9)(b) and (c).
As noted, respondent has a lengthy history of domestic violence, and was first offered
services in 2014. Respondent was also provided services after each subsequent domestic violence
incident, of which there are at least five, including being provided with a victim’s advocate,
services from Families First, and domestic violence counseling. CPS also provided respondent
with a community resource guide and included respondent in a Team Decision Making meeting in
order to assist her and her family in smart decision-making practices. There is, therefore, adequate
evidence to support the trial court’s finding reasonable efforts were made to prevent removal.
MCL 712A.13a(9)(d). Lastly, the children were placed with their maternal uncle and left in their
family home, and the record does not indicate any problems with the uncle’s ability to care for the
children. This satisfies MCL 712A.13a(9)(e), because the conditions of the children’s lives away
from respondent were adequate to safeguard their welfare. Thus, the trial court made findings of
all five requirements for removal under MCL 712A.13a(9), and there is no indication the trial court
plainly erred in so doing.
Lastly, respondent argues DHHS failed to establish that allowing respondent to stay in the
family home with the children would present a substantial risk of harm, and, therefore, she should
not have been made to leave her home. As discussed above, we conclude there was sufficient
evidence of a risk of harm to the children due to respondent’s involvement in domestic abuse
incidents with both of the fathers in either one child’s, or both of the children’s, presence,
respondent letting both fathers back into the home after these altercations, and BJL being injured
multiple times while attempting to intervene in these altercations. The trial court therefore did not
err when it ordered the removal of respondent from the family home.
III. CONCLUSION
Because there is no evidence the trial court plainly erred by removing the children from
respondent’s care and custody, and by removing respondent from the family home, we affirm.
/s/ Douglas B. Shapiro
/s/ Michael J. Kelly
/s/ Thomas C. Cameron
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