Buckhannon v. Singleton

• Decision Date: 19 August 2021
• Docket Number: 354801
• Parties: DA'JOHNAE BUCKHANNON, Plaintiff-Appellant, v. PATRICK SINGLETON, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

DA'JOHNAE BUCKHANNON, Plaintiff-Appellant, v. PATRICK SINGLETON, Defendant-Appellee.

No. 354801

Court of Appeals of Michigan

August 19, 2021

UNPUBLISHED

Wayne Circuit Court LC No. 2017-163223-DP.^[1]

Before: Mark J. Cavanagh, P.J., and Colleen A. O'Brien and James Robert Redford, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court's orders referring this matter from the juvenile division to the domestic relations section of the court, and ultimately granting sole legal and physical custody of plaintiff's and defendant's, Patrick Singleton's, minor son, PAS, to Singleton. On appeal, plaintiff argues the trial court erred procedurally and in granting sole physical and legal custody of PAS to Singleton, after finding an established custodial environment with Singleton, and that the best interest factors favored custody with Singleton. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

This case arises from a child custody hearing during a concurrent child protective proceeding, involving plaintiff's five minor children: DAT, JNB, PAS, BJM, and FJM.^[2] Before PAS's birth, plaintiff was driving while intoxicated, with DAT in the vehicle, when she was in an accident, resulting in DAT suffering a broken leg. DAT and JNB were removed from plaintiff's care and made temporary court wards while plaintiff completed a court-ordered treatment plan. When PAS was born, the Michigan Department of Health and Human Services (MDHHS) filed a petition to also remove PAS because of DAT's and JNB's removal. In August 2016, plaintiff completed her treatment plan, the children were returned to her care, and the wardship was terminated. The next year, BJM was born with marijuana in her system.

In May 2017, plaintiff filed a paternity complaint against Singleton, arguing Singleton failed to provide support for PAS despite sufficient ability to do so. In answer, Singleton requested that genetic testing be completed to determine whether he was PAS's biological father. The trial court ordered Singleton to provide child support for the care and support of PAS, totaling $83 per month. The trial court also entered a default judgment of filiation, stating plaintiff "shall have sole legal and physical custody of [PAS] until further order of the Court."

In 2018, plaintiff and her children were in a second car accident when another driver struck plaintiff's vehicle parked on the roadside after having run out of gas. Plaintiff's friend had been driving the vehicle, however plaintiff was intoxicated at the time of the accident. MDHHS filed a petition to remove the children from plaintiff's care and terminate plaintiff's rights. MDHHS also noted sexual abuse allegations, from February 2018, arising from plaintiff's alleged inappropriate touching of an unrelated minor child on two occasions. A referee hearing was conducted regarding the petition, resulting in an order that each child be placed with their respective father. Thus, PAS was placed in Singleton's care. In July 2018, plaintiff was incarcerated in an unrelated criminal proceeding. In September 2018, the trial court held an adjudication in the child protective proceeding. The trial court found it had jurisdiction grounded on plaintiff's history of substance abuse and plaintiff's 2016 driving-while-intoxicated accident. The trial court held a subsequent hearing regarding the termination of plaintiff's parental rights concluding that termination was not in the best interests of plaintiff's children, and imposed a treatment plan for plaintiff to regain custody.

In March 2019, Singleton moved to change custody, arguing sole legal custody of PAS should be changed from plaintiff to Singleton because plaintiff "has lost custody." The referee recommended that Singleton's motion be dismissed while the juvenile court case remained open, and because "jurisdiction as to issues of custody and parenting time remain solely with the Wayne County Juvenile Court[.]" In November 2019, Singleton again moved to change custody, arguing sole legal and physical custody of PAS should be changed from plaintiff to Singleton because of the juvenile child protective proceeding that removed PAS from plaintiff's care. Plaintiff objected to Singleton's motion to change custody of PAS, arguing Singleton was unable to provide the structure and parenting time needed to care for PAS. Specifically, plaintiff asserted that Singleton was a registered sex offender, worked every day, and left PAS in the care of a daycare facility and his sister, Kathy Singleton. The trial court held a hearing regarding Singleton's motion for a change of custody, finding a change of custody of PAS in favor of Singleton was appropriate in totality of the best-interest factors. Specifically, the trial court reasoned that factors (a), (g), and (j) weighed evenly in favor of plaintiff and Singleton, stating:

[(A)] really goes to both parents. There's a bond between [PAS] and both his mother and father, so there's love, and affection, and other emotional ties there.

* * *

[Plaintiff and Singleton are] both in adequate mental and physical health to care for this child. So, G doesn't weight either way in the findings.

* * *

There's testimony on this record and the Court believes that it's earnest, both for [Singleton] and [plaintiff] that they both see a need for each other to be in their child's life. And so, the Court finds that that factor supports both parents as that regardless of who had custody, the Court believes that they would reach out to the other parent to make sure the other parent was involved.

Additionally, the trial court concluded factor (f) did not weigh in favor of either party because both plaintiff and Singleton have moral fitness "issues" regarding their criminal histories. The trial court further found that factors (i), (k), and (1) were not applicable, nor was PAS of sufficient age to have a preference. The trial court determined that factors (b), (c), (d), (e), and (h) weighed in favor of Singleton, stating:

[Singleton] has had the child now for two years and [plaintiff's] still working on her treatment plan with the court, albeit she's made some progress, but B does favor the father, as does C at this point, which is the capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other remedial care. The Father's been essentially providing the majority of the support for this child since 2018. And that's not to say the Mother has not made any contribution. She has, she contributed some support and clothes, but the Father has done certainly more of that. So, C would support the Father in the best interest findings.

* * *

The continuity at this point would dictate custody to the Father due to he's lived there exclusively for the last two years and the Father's home is certainly suitable at this point and satisfactory.

* * *

E, the permanence of the family unit of the existing or proposed custodial home. Father's home, he has a permanent home, he has a bungalow, there's not any issues there, so that would support the Father.

* * *

The child's too young to have a school record at this point and really too young to have a community record. Certainly, his home record is with the Father at this point given the length of time that he's been there.

The trial court entered a written order, awarding sole legal and physical custody of PAS to Singleton. The trial court also dismissed the child protective proceeding (lower court docket number 18-000817-NA), and terminated the wardship of PAS. At the same time, the trial court entered an order of referral, stating:

The Juvenile Section judge has entered a custody order in the Domestic Relations child custody proceeding. The custody order . . . supersedes any prior custody order entered in the Domestic Relations case.

As a result, the parties' child custody issue was transferred from the juvenile section to the domestic relations section of the family court division.

Four or five months after the trial court's custody order at issue was entered, and while this appeal was pending, the child protective proceeding was dismissed and plaintiff's remaining children were ordered to be placed back in her care. However, the order was subsequently amended to remove PAS from the order, stating PAS "was listed on the original order in error. Sole legal and physical custody of [PAS] was awarded to [Singleton] on 7/1/2020." Accordingly, plaintiff moved, in this Court, for remand, arguing remand was necessary so a new evidentiary hearing could be conducted as "newly discovered evidence shows the [trial] court wrongly decided the best interests of the child among other custody concerns." Plaintiff asserted that remand for an evidentiary hearing would serve judicial economy and may be ordered at any time by this Court. Neither Singleton, MDHHS, nor PAS's guardian ad litem responded to plaintiff's motion to remand. This Court denied plaintiff's motion to remand "for failure to persuade the Court of the necessity of a remand at this time." Buckhannon v Singleton, unpublished order of the Court of Appeals, entered on May 12, 2021 (Docket No. 354801).

II. ANALYSIS

Plaintiff argues that the trial court erred procedurally, and in granting sole physical and legal custody of PAS to Singleton after finding that the custodial environment of PAS was with Singleton and that the best interests factors favored Singleton. We disagree.

Generally an issue is preserved for appellate review if it is raised in the trial court and pursued on appeal. Peterman v Dep't of Natural Resources, 446 Mich. 177, 182-183; 521 N.W.2d 499 (1994). In the trial court, the parties disputed the best interests of PAS. The trial court found that a custodial environment existed with...