In re Blakeman

Citation326 Mich.App. 318,926 N.W.2d 326
Decision Date25 October 2018
Docket NumberNo. 341826,341826
Parties IN RE BLAKEMAN, Minors.
CourtCourt of Appeal of Michigan — District of US

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Carol A. Siemon, Prosecuting Attorney, Joseph B. Finnerty, Appellate Division Unit Chief, and Elizabeth L. Allen, Assistant Prosecuting Attorney, for the people.

Speaker Law Firm, PLLC (by Liisa R. Speaker, Kalamazoo) for respondent.

Before: Beckering, P.J., and Riordan and Cameron, JJ.

Cameron, J.

In this interlocutory appeal from a child protective hearing, respondent-father appeals1 a dispositional order that prohibits him from residing in the family home with his wife and four children. Respondent came under the jurisdiction of the court for assaulting an unrelated toddler for whom his wife was babysitting. After respondent completed court-ordered services, petitioner, the Department of Health and Human Services (DHHS), had recommended to the trial court over the course of a year that respondent be allowed to return to the home. The assistant prosecuting attorney (APA) representing DHHS disagreed and urged the trial court to continue only supervised visitation. The trial court repeatedly denied DHHS' requests for reunification, concluding that respondent's failure to accept responsibility for assaulting the toddler precluded him from returning to the family home and having unsupervised visitation with his children. On appeal, respondent argues that the trial court violated his Fifth Amendment right against self-incrimination when it conditioned reunification on respondent's admission to abusing an unrelated toddler. We agree that the trial court committed error and, therefore, vacate and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Respondent and his wife have four children. On occasion, respondent's wife would babysit an unrelated toddler. In November 2016, the toddler suffered a seizure, and thereafter often screamed and cried while he was in respondent's home. On February 9, 2017, respondent's wife was babysitting the toddler. Late in the afternoon, respondent's wife left to pick up food for dinner, leaving the toddler with respondent. When respondent's wife returned, the toddler was unresponsive. Respondent's wife called 911, and the emergency responders believed the toddler suffered a seizure. The toddler was transported to the hospital where the physicians discovered a large, life-threatening skull fracture

. The physicians determined that the fracture was nonaccidental and occurred close to the time the toddler was admitted to the hospital. The toddler survived the fracture, but his physician expects significant long-term physical and cognitive deficits

.

The day after the toddler was taken to the hospital, DHHS filed a child protective petition against both respondent and his wife. The trial court authorized the petition but allowed the four children to stay with their parents in the home. However, after a custody review hearing, the trial court removed the children from the family home and authorized supervised parenting time. The parents then requested an additional custody review hearing. The trial court held the additional custody review hearing and released the children to the parents.

DHHS filed a second, final amended petition on April 7, 2017. DHHS did not seek termination of petitioner's parental rights, but instead requested that the children be temporarily removed from the home.

In June 2017, the trial court held a multiday adjudicative bench trial. At the trial, respondent was informed of his right against self-incrimination, but he chose to waive that right and testified. Respondent maintained his innocence throughout the examination, claiming he did not know how the toddler sustained the skull fracture

. At the close of the trial, the trial court found that respondent fractured the toddler's skull, concluded that the court had jurisdiction over the children, and ordered respondent to leave the family home and have no contact with his children other than supervised visits. As to respondent's wife, the trial court found that she was not responsible for the toddler's injuries and was thus a nonrespondent.

Respondent then began a court-ordered service plan designed to address his issues and to allow him to move back into the family home and have unsupervised visitation with his children. In late June 2017, respondent began weekly counseling sessions with a therapist. Shortly thereafter, he had a psychological evaluation. The evaluator noted that respondent may have passive-aggressive traits and other related traits such as "a pattern of passive resistance, opposition, stubbornness, failure to engage in direct communication, blaming others, feigning compliance, and a negative disposition." The evaluator stated that there was no information to assess whether respondent had fractured the toddler's skull, but noted that there were no reports that he had ever abused his own children. The evaluator concluded, "This clinician cannot reflect on any compelling reasons why [respondent] should not be able to return home."

In July 2017, a dispositional review hearing was held, and a DHHS foster care worker updated the trial court on respondent's progress. According to her, the only barrier to respondent's return to the family home was the completion of court-ordered services. By this time, respondent had completed a psychological evaluation, a counselor had been assigned, and respondent was scheduled to begin trauma-based therapy and a parenting class, and respondent was made aware that additional services could be added depending on the results of his psychological evaluation. The parties all agreed, including the APA, that respondent "appear[ed] to be off to a compliant start." However, before setting the date for the next dispositional hearing, the trial court expressed doubt that the outstanding psychological report, or any other evidence for that matter, could support reunification:

I don't know a good way forward, quite honestly, because the findings that I was required to make by the evidence that was presented was that, [respondent] brutally beat another child.... So, it's going to take a lot for me to be convinced that he ought to have any unsupervised time with his children, or any other children, quite honestly, because of the nature of the beating, and what occurred to this other boy.... And so—and I don't know what treat—I don't know what treatment there is.

In September 2017, DHHS submitted a written report to the trial court to be considered before the next dispositional review hearing. In the report, DHHS indicated that respondent and his wife had been cooperative and that their four children were doing well, although some of the children were having adjustment issues relating to respondent's removal from the family home. The supervisor of the parental visits reported no concerns and indicated that respondent was "fully engaged and interacts well with the children." DHHS recommended that the trial court maintain jurisdiction and that respondent be permitted to return to reside in the family home without supervised visitation.

In October 2017, the trial court held another dispositional review hearing. At that hearing, the DHHS foster care worker reiterated that there were no concerns about respondent returning to his family while continuing his private counseling. After testimony concluded, the APA stated he was "[not] comfortable endorsing the suggestion of foster care, that—that dad go home at this time" because he was concerned that the severity of the toddler’s injuries, coupled with the psychological report, raised "a lot of red flags" and there was no written evidence to suggest "that those red flags [were] being addressed in therapy." Respondent’s attorney responded that his client had complied with all court ordered services and that he was "not sure what else we need to do to get [respondent] back in the home." The trial court rejected DHHS’ reunification recommendation and expressed dissatisfaction "with how this has been overseen by the [DHHS] caseworker." The trial court ordered respondent’s therapist to appear at the next dispositional review hearing to explain her recommendation that respondent be allowed to return back to the home. Further, the trial court expressed disbelief that the therapist and DHHS were recommending reunification when respondent had not even admitted to his therapist that he assaulted the toddler:

And, you know, ten therapy sessions later, don't [sic] change the fact—especially in a situation where this—the—the father is not, he's not taking any responsibility for any of this. Matter of fact, it's everybody else's fault. It's not his fault. So how do you change your behavior? How do you have insight without any acknowledgment that you did anything wrong ?
... The ten therapy sessions have done no good. There's no more insight. [Emphasis added.]

The trial court then questioned whether the therapist even considered how respondent's claim of innocence might interfere with respondent's therapy: "There's no indication the therapist had analyzed anything in terms of his responses to the types of things there [sic] working on. Whether he's taking accountability, responsibility, and he knows what things and tools he needs to do to change his behavior." The trial court concluded the hearing, stating: "The fact[ ] in this case is that [respondent] fractured the skull

of a young, special needs child. And he's staying out of the house because I'm not having him do that again."

Before a December dispositional review hearing, DHHS provided the trial court with an updated dispositional review report, stating that there were no safety concerns during respondent’s supervised visits with his children and that he had "exhibited positive communication, appropriate discipline techniques, and positive parenting techniques." DHHS reiterated its...

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8 cases
  • Bambach v. Lapeer Cnty.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • May 29, 2020
    ...self-incrimination." ECF No. 41, PgID 451-52 (citing - but not quoting - McKune v. Lile, 536 U.S. 24, 35 (2002); In re Blakeman, 326 Mich. App. 318, 338 (2018) ("By requiring respondent to confess to the criminal abuse of the toddler in order to regain care and custody of his children, the ......
  • In re SJS
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    • Court of Appeal of Michigan — District of US
    • June 2, 2022
    ... ... that Jones had sexually and physically abused another of ... respondents' minor children, CLJ ... [ 2 ] This Court reviews de novo ... constitutional questions, including whether a party has been ... afforded due process. In re Blakeman , 326 Mich.App ... 318, 331; 926 N.W.2d 326 (2018); In re Contempt of ... Henry , 282 Mich.App. 656, 668; 765 N.W.2d 44 ... (2009) ... [ 3 ] Because respondent never objected to ... having hearings conducted by Zoom, or otherwise raised this ... issue in the ... ...
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    • March 31, 2023
    ...receipt of CPS family services or reunification with the Children on Bambach confessing to sexually abusing the Children. In re Blakeman, 326 Mich.App. 318, 338 (2018). state that, on December 29, 2015, Bambach, under the advice of his attorney, told Moegle he would no longer speak with Lap......
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    ...forced to waive the right against selfincrimination as a precondition to retaining or regaining the parent's care and custody of a child. Id. at 339. In Blakeman, the parent babysitting an unrelated child, who suffered an unexplained injury while in the parent's care, following which, the p......
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