A trial court applied the correct legal standard when denying the Department of Health and Human Services’ petition for temporary custody over the respondent’s children, the Michigan Court of Appeals has ruled.

The respondent-father in In re S, Minors (Docket No. 352085) was placed in a mental-health facility after reportedly abusing and injuring one of his children. Thereafter, the Department of Health and Human Services (DHHS) filed a petition seeking temporary custody over the children, who were placed in the care of their mother. The Bay County Circuit Court dismissed the petition, finding there were sufficient orders in place to protect the children until the respondent’s mental-health issues and legal issues could be properly addressed.

The DHHS appealed, claiming the trial court did not apply the proper legal standards and erroneously found that the children were not at a substantial risk of harm.

The Court of Appeals disagreed and affirmed the trial court’s decision.

“Under MCR 3.962, the trial court’s probable-cause determination does not limit the court to examining the children’s situation as it exists at the time the petition is filed,” the Court of Appeals wrote. “It instead permits the court to consider information in any manner that the court deems fit. Here, examining the children’s situation at the time of the hearing (which coincidently was at the time the amended petition was filed), the court found that there was not probable cause to authorize the petition. The court’s findings were not clearly erroneous, so the court did not abuse its discretion by dismissing the petition under MCR 3.962 (B)(1).”

Judges Brock A. Swartzle, Elizabeth L. Gleicher and Michael J. Kelly were on the panel that issued the unpublished opinion.

Background

The police were called to the respondent’s home in early December 2019. Upon arriving, the police observed blood throughout the home and learned the respondent had hit his 5-year-old child’s head against a door. The respondent had locked himself in a room with the child. The police kicked down the door to gain entry. Inside the room, the child was pinned between the respondent’s thighs with the respondent’s arms wrapped around his chest. The respondent was holding a Bible and a rosary and was “speaking in tongues.” The officers tasered the respondent several times to subdue him. The respondent was transferred to a medical center for evaluation. The respondent was criminally charged with one count of first-degree child abuse, two counts of domestic violence, third offense, and one count of resisting or obstructing a police officer. The children were placed with their mother.

The DHHS then filed a petition seeking temporary custody over the children. The petition alleged the children’s home was an unfit place for them to live and it would be contrary to the children’s welfare for the respondent to remain in the home. The petition alleged that until the respondent “could get his mental-health under control, it was in the children’s best interest that he be removed from the home and that any visitation be supervised.”

At a hearing on the petition, the respondent’s attorney advised the trial court the respondent was hospitalized at a mental-health facility and criminal charges were pending. The trial court noted that a $50,000 cash bond had been set in the respondent’s criminal case and the bond conditions prohibited contact between the respondent and the children. However, because the cash bond also contained a provision permitting the respondent’s release on a personal recognizance basis for purposes of receiving mental-health treatment, the respondent had been released to a mental-health facility. The trial court noted that once the respondent was released from mental-health, he would be transported to the county jail for arraignment on the criminal charges.

Regarding the children’s placement, the trial court took limited testimony from a caseworker, who explained the children had been placed with their mother. The caseworker testified the placement was adequate. The trial court continued placement with the children’s mother but because the respondent wanted to be present for the hearing and could not because of his mental-health hospitalization, the trial court adjourned the hearing.

On Dec. 12, 2019, the DHHS filed an amended petition seeking temporary custody over the children and asked the trial court to remove the respondent from the children’s home. In addition to the previous allegations, the petition now included allegations relating to the respondent’s pending criminal charges and cited MCL 712A.2(b)(1) and (2) as the statutory grounds for jurisdiction. On this same day, the trial court conducted a mental-health hearing with the respondent, where it was determined the respondent required treatment for a period of time. A mental-health order was entered providing that the respondent would receive “assisted outpatient treatment for no longer than 180 days,” with the respondent to be hospitalized for up to 60 of the 180 days.

Also on Dec. 12, 2019, the trial court conducted the hearing on the now-amended petition. The respondent’s attorney indicated that his client denied a “good portion of the things” alleged in the petition but said that “given the situation today we’re gonna waive the probable cause portion.” However, the trial court indicated that it wanted to hear “whether or not the children would be at risk at this time” before it determined whether to authorize the petition. Accordingly, the DHHS called a caseworker to testify. The caseworker testified that until the respondent’s mental-health could be “brought under control, the children are to remain with mom.” She indicated that a “substantial risk of harm” arose because “we don’t know when [the respondent is] going to be released.”

Based on the evidence presented, the trial court dismissed the DHHS’s petition, reasoning the children were adequately protected because they had been placed with their mother. The DHHS appealed.

‘Misplaced’ Argument

On appeal, the DHHS argued the trial court’s decision to dismiss the petition should be reversed because it had examined the circumstances at the time of the hearing rather than at the time the petition was filed. To support its argument, the DHHS cited In re MU, 264 Mich App 270 (2004), for the proposition that during a preliminary hearing “the trial court must examine the child’s situation at the time the petition was filed.”

The Court of Appeals, however, said the DHHS’s argument was “misplaced” because the hearing on the petition was a “preliminary inquiry” and not a “preliminary hearing.” To support this decision, the appeals court cited MCL 712A.13a(2) and MCR 3.962(A).

According to the Court of Appeals, MCL 712A.13a(2) provides that a trial court may authorize a petition at the end of a preliminary hearing or inquiry “upon a showing of probable cause that 1 or more of the allegations in the petition are true and fall within the provisions of section 2(b) of this chapter.” Further, the appeals court pointed out that MCL 712A.2(b)(1) and (2) permit a court to take jurisdiction over a minor:

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. …

Meanwhile, MCR 3.962(A) says: “When a petition is not accompanied by a request for placement of the child and the child is not in temporary custody, the court may conduct a preliminary inquiry to determine the appropriate action to be taken on a petition.” A preliminary inquiry is an “informal review by the court to determine appropriate action on a petition,” the Court of Appeals observed, citing MCR 3.903(23).

“Here, as the petition sought the removal of respondent, not the children, from the home, and because the children were not in temporary custody, the court rule governing the court’s decision on the petition is MCR 3.962, not MCR 3.963 (governing preliminary hearings),” the Court of Appeals wrote. MCR 3.962 provides:

(A)  Purpose. When a petition is not accompanied by a request for placement of the child and the child is not in temporary custody, the court may conduct a preliminary inquiry to determine the appropriate action to be taken on a petition.

(B)  Action by Court. A preliminary inquiry need not be conducted on the record or in the presence of the parties. At the preliminary inquiry, the court may:

1. Deny authorization of the petition.

2. Refer the matter to alternative services.

3. Authorize the filing of the petition if it contains the information required by MCR 3.961(B), and there is probable cause to believe that one or more of the allegations is true. For the purpose of this subrule, probable cause may be established with such information and in such a manner as the court deems sufficient.

For purposes of a preliminary inquiry, MCR 3.962 “expressly” says that probable cause “may be established with such information and in such a manner as the court deems sufficient,” the Court of Appeals explained. “Under this broad language, the trial court is not necessarily constricted to merely evaluating the situation at the time the petition is filed. Instead, it may consider updated, relevant information in any manner that ‘the court deems sufficient.’”

As a result, “we conclude that when determining what action to take on a petition following a preliminary inquiry, the trial court is not limited to the facts in existence at the time the petition was filed,” the Court of Appeals said.

‘Speculative Future’

Even assuming that the trial court could only examine the children’s situation “at the time the petition was filed,” the Court of Appeals noted that reversal was still not warranted because the trial court did, in fact, examine the children’s situation at the time the amended petition was filed.

“The original petition was filed on December 3, 2019, but the amended petition - which included additional allegations - was filed on December 12, 2019,” the Court of Appeals wrote. “At the December 12, 2019 hearing, petitioner was not requesting the court to authorize the original December 3 petition, it was asking the court to authorize the amended petition. As a result, the children’s situation at the time the amended petition was filed included the events of December 12, 2019.”

When the amended petition was filed, the children were placed with their mother, the Court of Appeals observed. “The DHHS had already determined the placement to be adequate and their mother was not a respondent in the child-protective proceedings.”

Meanwhile, the DHHS argued the child-protective proceedings had no control over the bond in the criminal case because the conditions could be revoked by the court in the criminal case, which would mean the respondent could contact the children or return to the home. Similarly, the DHHS argued that once the 60/180 order expired, the court would no longer have jurisdiction over the respondent in that matter.

“Petitioner hypothesizes that if respondent complies with his treatment plan and his mental-health provider does not petition the court to continue the order, then respondent could be ‘released from treatment without further ado,’” the Court of Appeals wrote. “At that point, he would be free to do anything without any way for the court to ensure he follows through with his after-care instructions. The court, in that potential scenario, would not have any basis to limit or supervise respondent’s contact with the children.”

However, “[t]he problem with petitioner’s argument is that it relies not on the children’s situation at the time the amended petition was filed, but on a speculative future,” the Court of Appeals said. “In that speculative future, the court in the criminal case - relying on the horrendous facts set forth above - decides to inexplicably revoke a no-contact order designed to protect the victim and his siblings, and respondent is able to control his mental-health effectively enough to obtain release from court-supervised treatment. In that future, the children’s mother is unable to prevent future abuse to her children. … In the children’s present situation, there was not a substantial risk of harm because respondent had been effectively removed from the home, was receiving mental-health treatment that was being monitored by the court and was facing significant criminal charges relating to his conduct.”

The Court of Appeals emphasized it was “cognizant” of the severe injuries to the child in this case. “The risk of harm to the children if respondent were to return to the home without receiving appropriate treatment is palpable. The [trial] court, however, determined that the risk was not imminent because respondent was receiving mental-health treatment under a 60/180 day order and because he had a criminal case pending that included a no-contact bond. Its factual findings were, in fact supported. That a different factfinder could have evaluated the children’s situation and reached a different result does not mean that the [trial] court’s decision to dismiss the petition was an abuse of discretion.”

In conclusion, the Court of Appeals cautioned: “As an appellate court, we must avoid the temptation to second-guess the trial court’s discretionary decisions when those decisions are supported by the record. If we were to adopt petitioner’s argument, we would have to ignore the significant discretionary authority given to the trial court.”