In re Anjoski
| Decision Date | 19 March 2009 |
| Docket Number | Docket No. 283406. |
| Parties | In re ANJOSKI. |
| Court | Court of Appeal of Michigan — District of US |
Michigan Children's Law Center (by Frederick H. Gruber), Guardian Ad Litem, Southgate, for the minor child.
Before: SERVITTO, P.J., OWENS and Kirsten Frank KELLY, JJ.
Plaintiff appeals as of right a supplemental order of the family division of the circuit court permitting the minor child of the parties to remain in the established custodial environment of defendant's home with defendant's widow, Lisa Anjoski (Lisa), pending an evidentiary hearing. We affirm. This matter requires us to address (1) whether a third party with no legal connection to the child at issue has standing to initiate a child custody dispute, (2) whether a trial court, in recognition of parents' fundamental liberty interest in childrearing and the parental presumption under MCL 722.25, must immediately return the child to a non-custodial parent upon the death of a custodial parent when the record contains legitimate allegations that the noncustodial parent is unfit, and (3) whether a trial court has the authority to award custody to a third party without standing pursuant to MCL 722.27(1)(a). We hold that a third party lacks standing if it does not meet one of the statutory standing requirements in the Child Custody Act, MCL 722.21 et seq. We further hold that a trial court, in considering a motion to modify a custody order in situations where sufficient legitimate and compelling indicia exist on the record indicating that a noncustodial parent is currently unfit, must first make a finding of parental fitness before determining the burden of persuasion to be applied and conducting an evidentiary hearing. Lastly, we hold that the plain language of MCL 722.27(1)(a) permits a trial court to award custody to a third party who lacks standing.
Plaintiff and defendant conceived a child out of wedlock. The minor child was born in 2003. Plaintiff initiated a paternity suit against defendant, who admitted paternity in November 2004. The judgment of filiation indicated that plaintiff would maintain sole legal and physical custody of the minor child and provided parenting time for defendant. Defendant then moved for a change of custody in December 2005. Consequently, the trial court amended the custody award in May 2006, awarding plaintiff and defendant joint legal custody, with physical custody remaining with plaintiff and parenting time given to defendant.
On July 6, 2006, defendant moved for a change of custody on the basis that plaintiff allegedly failed to follow the parenting time schedule, failed to provide proper clothing and hygiene to the minor child, allowed the minor child's medical insurance to lapse, used marijuana and crack cocaine, lived with an unstable boyfriend, and transported the minor child in her car without a child restraint. Defendant also alleged that he smelled crack cocaine emanating from plaintiff's car when plaintiff dropped the minor child off, that plaintiff had rarely visited the minor child when the child was in the hospital, and that plaintiff dressed the minor child in clothing inappropriate for the weather.
The trial court scheduled a hearing on defendant's motion for September 5, 2006. Defendant refiled the identical motion on August 30, 2006. The September 5th hearing was adjourned, however, because plaintiff was in the hospital, allegedly for treatment for drug abuse, and another hearing was scheduled for September 15th.1 Defendant then filed an amended motion for a change of custody on September 8, 2006. On October 10, 2006, the trial court granted defendant's motion, awarding defendant temporary sole physical custody, with joint legal custody for both plaintiff and defendant, and scheduled another hearing for January 9, 2007. The minor child then began living with defendant and his wife, Lisa. Plaintiff was allowed reasonable parenting time but only on the condition that any parenting time be supervised. At the January 9, 2007, hearing the trial court appointed a guardian ad litem for the minor child, ordered supervised parenting time for plaintiff to take place at HelpSource,2 and scheduled an evidentiary hearing for April 4, 2007.
At the April 4, 2007, hearing, the guardian ad litem testified that the minor child was in an established custodial environment with defendant. The guardian ad litem further indicated that he had concerns regarding plaintiff's drug use and that he had recommended drug screening and treatment. Ultimately, the guardian ad litem recommended that the minor child should remain in defendant's physical custody. Both plaintiff and defendant consented to this recommendation. Consequently, the trial court entered an order on May 2, 2007, that summarized the parties' agreement, under which the parties maintained joint legal custody while defendant maintained sole physical custody. The order required both plaintiff and defendant to undergo random, but weekly, drug screenings and continued plaintiff's supervised parenting time, which was to gradually increase depending on plaintiff's successful and timely completion of substance abuse counseling and negative drug screens. Lisa, however, did not become the minor child's guardian or otherwise establish any legal connection to the minor child.
In August 2007 defendant died. Lisa filed a complaint for custody of the minor child, but dismissed it after the trial court determined that she did not have standing. Plaintiff then moved for a change of custody, citing defendant's death as a change of circumstances. On October 19, 2007, the trial court denied plaintiff's motion and "continued [its] current orders," which included supervised parenting time, reasoning on the record that, "if an established custodial environment is in place for a minor child, this court shall not disrupt that custodial environment until an evidentiary hearing has been held." In coming to this determination, however, the trial court recognized the parental presumption under MCL 722.25 that it is in the child's best interests to be placed with the parent and also noted that it did not wish to delay the matter in any way. The trial court stated:
[Pursuant to MCL 722.25, Lisa] would have a burden by clear and convincing evidence in this case. Unless Ms. Kane is deemed unfit. And as a result, I am reappointing [the guardian ad litem] on behalf of the child to go to reinvestigate the home environments for this child. ...
Thus, the minor child remained with Lisa pending an evidentiary hearing on November 20, 2007, which was as soon as the trial court's docket would permit.
Plaintiff moved for rehearing on November 2, 2007, alleging that the trial court erred by ordering a best interests hearing instead of immediately returning the minor child to plaintiff. In response, Lisa filed a brief opposing plaintiff's motion and also filed a motion to intervene. The trial court heard plaintiff's motion on November 20, 2007. At that hearing, the trial court again recognized the statutory presumption in favor of a parent and also recognized the competing presumption, under MCL 722.27(1)(c), in favor of maintaining the established custodial environment. The trial court then reiterated its previous statement regarding the applicable burden of persuasion when the parent is deemed unfit. The trial court stated:
[I]n a child custody dispute between a natural parent who does not have the status of a fit parent and a third party custodian, the trial court is not required to apply the statutory presumptions in favor of the parent. In this situation, the natural parent must show, by a preponderance of the evidence, that a change in the child's established custodial environment is in the child's best interest.
The trial court then took note of the factual history leading up to the present dispute, including plaintiff's consistent drug abuse, residence with an abusive boyfriend, and sporadic employment record. The court also noted that even when the minor child was in plaintiff's physical custody, the minor child nonetheless lived almost exclusively with defendant because plaintiff left the minor child with defendant, and that the minor child, when living with plaintiff, was neglected and lived in deplorable conditions. Because of these facts, the trial court deemed it necessary to reappoint the minor child's guardian ad litem to "properly assess the situation." As a result, the trial court concluded that it could not change the minor child's established custodial environment until a best interests evidentiary hearing was held. Further, with respect to Lisa's motion to intervene, the court noted that caselaw does not permit a third party to intervene, but "that does not preclude the court from deciding, after a best interest hearing, that it is in the child's best interest to be placed with a third party."3
On December 11, 2007, the day of the rescheduled best interests hearing, the parties moved for an adjournment in order to collect more information concerning the minor child's progress at school. In addition, plaintiff had tested positive for cocaine and the guardian ad litem requested more time for a hair follicle test. Accordingly, the trial court adjourned the hearing to February 14, 2007.
The trial court then issued a supplemental order on January 11, 2008, directing that the minor child remain with Lisa pending the evidentiary hearing and that the minor child receive, as necessary, counseling to deal with the loss of her father. The order also required plaintiff to reenroll in a drug abuse treatment program, attend weekly appointments with her case manager and monthly appointments with her psychiatrist, and allotted plaintiff additional parenting time over the holidays as...
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