In re MU

• Decision Date: 06 January 2005
• Docket Number: Docket No. 254908.
• Citation: 690 N.W.2d 495,264 Mich. App. 270
• Parties: In re MU, Minor. Family Independence Agency, Petitioner-Appellant/Cross-Appellee. v. Mark Unger, Respondent-Appellee/Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

690 N.W.2d 495

264 Mich. App. 270

In re MU, Minor.

Family Independence Agency, Petitioner-Appellant/Cross-Appellee. v.Mark Unger, Respondent-Appellee/Cross-Appellant.

Docket No. 254908.

Court of Appeals of Michigan.

Submitted July 14, 2004, at Detroit.

Decided November 2, 2004, at 9:00 a.m.

Released for Publication January 6, 2005.

David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Anica Letica, Assistant Prosecuting Attorney, for the petitioner.

Robert Harrison & Associates, PLC(by Robert S. Harrison and Matthew D. Klakulak), Butzel Long(by David W. Potts, Karen Pilat, and Michael F. Smith), and Allen & Associates, PLC(by Charlotte L. Allen), Birmingham, Bloomfield Hills, Midland, for the respondent.

William Lansat, Birmingham, for the minors.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Julie A. McMurtry, Assistant Attorney General, for the Attorney General.

Before: ZAHRA, P.J., and TALBOT and WILDER, JJ.

PER CURIAM.

The petitioner appeals by leave granted the trial court's partial grant of the respondent's motion in limine and motion for reconsideration of, or relief from, the order approving the supplemental petition in this child protective proceeding.The respondent cross-appeals the trial court's partial denial of the same motions.In the petitioner's appeal, we reverse the trial court's order to the extent that it prevents the petitioner from presenting evidence concerning the circumstances of Florence Unger's death at proceedings to determine whether the trial court has jurisdiction over the respondent's minor sons under MCL 712A.2.In the respondent's cross-appeal, we affirm the trial court's denial of the respondent's motion on the basis that proving criminality for purposes of MCL 712A.2(b)(2) does not require a prior criminal adjudication of guilt.

I

The respondent is the father of two minor sons, born in 1993 and 1996.This child protective matter arises from the respondent's suspected involvement in the murder of his wife, the children's mother, Florence Unger.In October 2003, the respondent, Mrs. Unger, and their sons went on a vacation to Benzie County, where they rented a cabin on Lower Herring Lake.About 8:00 a.m. on October 25, 2003, Mrs. Unger was found dead, lying at the edge of the lake.According to the investigating officer, Benzie County Sheriff's Deputy Detective Sergeant Tom Kelly, Mrs. Unger appeared to have fallen from a boathouse deck onto a concrete pad twelve feet below.Blood on the concrete pad indicated that her body had been moved between 2-1/2 and 3 feet from the concrete pad into the water.The medical examiner concluded that the death was a homicide.

Although the respondent was not immediately charged with any crimes arising from Mrs. Unger's death, he was apparently the focus of the investigation and the lone suspect in the killing.Soon after Mrs. Unger's death, the respondent's sons were removed from his care and placed with maternal relatives.The office of the Benzie Prosecuting Attorney sought temporary wardship of the minor children, which the Benzie Circuit Court, Family Division, approved on October 27, 2003.The parties stipulated a change of venue to Oakland County, the minor children's county of residence.

Thereafter, in November 2003, the petitioner filed a "supplemental"petition¹ to terminatethe respondent's parental rights, which the trial court authorized.The petition sought jurisdiction over the children on the basis of MCL 712A.2(b)(1) and (2), and explicitly stated that the children's "home or environment, by reason of neglect and/or cruelty and/or criminality and/or drunkenness and/or depravity of Father is an unfit place for the children to live.They are subject to a substantial risk of harm to their mental well being."The petition sought to terminatethe respondent's parental rights under MCL 712A.19b(3)(g) and (j).The "criminality" alleged in the petition is the alleged murder of Mrs. Unger, which alleged criminality is based on the testimony by Detective Sergeant Kelly during a preliminary hearing on the original petition.

In February 2004, after the trial court had authorized the supplemental petition and before the trial to determine the trial court's jurisdiction over the children, the respondent moved for reconsideration or rehearing of the trial court's order authorizing the supplemental petition.The respondent first sought dismissal of the petition on the basis that because the petitioner's statutory basis for asserting jurisdiction depended on its theory that the respondent killed Mrs. Unger, there could be no jurisdiction because the trial court lacked authority to determine "criminality" in the absence of a criminal conviction.Alternatively, the respondent contended that because the trial court lacked subject-matter jurisdiction to find him guilty of a criminal offense, any evidence of alleged criminality should be excluded pursuant to MRE 403.The respondent also asserted that the introduction by the petitioner of evidence of alleged "criminality" represented an attempt to " try" the criminal case in this civil proceeding, thus violating his right to due process and a fair trial.

In reply to the respondent's motion, the petitioner contended that evidence of the homicide was highly relevant to proving both the criminality alleged as the basis for jurisdiction and that respondent was a danger to the minor children.The petitioner also asserted that use of evidence of criminality did not constitute an attempt to try the criminal case in this civil proceeding and, moreover, that the petitioner was not entitled to the protections guaranteed a criminal defendant.The guardian ad litem appointed to represent the children agreed with the petitioner's assertions, arguing that the focus of the proceedings was not whether the respondent could be found guilty of homicide, but whether there was a basis for the trial court to exercise jurisdiction over the minor children.

In its written opinion, the trial court, although first acknowledging that criminality was not the only basis for jurisdiction alleged in the supplemental petition, rejected the respondent's contention that a criminal conviction or charge was a necessary prerequisite to a finding of criminality for the purpose of establishing jurisdiction over the minor children.Nevertheless, the trial court granted the respondent's motion to exclude evidence regarding Mrs. Unger's death, concluding that the use of such evidence against the respondent in the absence of criminal charges or a conviction would deny the respondent the due process of law.The trial court stated:

[T]he prosecutor has repeatedly stated, in various phrases and interpretations, that he will prove that respondent murdered Florence Unger in the adjudicative phase of these proceedings.The standard of review [sic] in the adjudicative phase is a preponderance of the evidence.MCR 3.972(C).This court's evaluation of respondent's due process rights in this civil child protective proceeding will affect respondent's rights to care for and manage his children.A risk of erroneous deprivation of the right to care for and manage his children exists by attempting to try a criminal case in family court using a lower burden of proof standard.

The trial court also concluded that although collateral estoppel would not apply to future criminal proceedings, the outcome of the civil proceedings could prejudice the respondent, his children, Mrs. Unger's family, or the state in a future criminal proceeding.For these reasons, the trial court barred petitioner from offering any evidence regarding the circumstances of Florence Unger's death in this proceeding.

This appeal and cross-appeal ensued, and on May 19, 2004, we granted the petitioner's application for leave to appeal and stayed proceedings in the trial court.

II

We review de novo questions of statutory interpretation.People v. Hock Shop, Inc.,261 Mich.App. 521, 524, 681 N.W.2d 669(2004).We review for abuse of discretion a trial court's decision to admit or exclude evidence; however, when resolving an evidentiary issue requires resolving a question of law such as a constitutional question, our review is de novo.²People v. Lukity,460 Mich. 484, 488, 596 N.W.2d 607(1999);Mahaffey v. Attorney General,222 Mich.App. 325, 334, 564 N.W.2d 104(1997).

III

A

In light of its potentially dispositive nature, we first address the respondent's argument on cross-appeal.³The respondent contends that the petitioner cannot prove that "criminality" rendered the minor children's home or environment unfit on the date the supplemental petition was filed, MCL 712A.2(b)(2), because the respondent had not been convicted of a crime at that time and the trial court lacks subject-matter jurisdiction to make a finding of criminality.We disagree.

[A] family court has subject-matter jurisdiction when the allegations in the petition provide probable cause to believe that it has statutory authority to act because the child's parent or guardian neglected the child, failed to provide a fit home, or committed any of the other conduct described in the statute.Whether the allegations are later proved true is irrelevant to whether the family court has subject-matter jurisdiction.[In re AMB,248 Mich.App. 144, 168, 640 N.W.2d 262(2001).]

The statute providing the family court's authority, MCL 712A.2, provides, in part:

The court has the following authority and jurisdiction:

* * *

(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county:

(1) ... who is subject to a substantial risk of harm to his or her mental well-being ... [or]

* * *

(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.

For the...