In re A.P.

• Decision Date: 05 May 2009
• Docket Number: Docket No. 286431.
• Citation: 283 Mich. App. 574,770 N.W.2d 403
• Parties: In re A.P.
• Court: Court of Appeal of Michigan — District of US

770 N.W.2d 403

283 Mich. App. 574

In re A.P.

Docket No. 286431.

Court of Appeals of Michigan.

Submitted January 6, 2009, at Detroit.

Decided May 5, 2009, at 9:00 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Rebekah Mason Visconti, Division Chief, and Tonya C. Jeter, Assistant Attorney General, for the Department of Human Services.

Edward J. Joseph, Saint Clair Shores, for Holly Johnson.

Anita G. McIntyre P.C. (by Anita G. McIntyre), Grosse Pointe Woods, for the minor child.

Before: MURPHY, P.J., and K.F. KELLY and DONOFRIO, JJ.

KIRSTEN FRANK KELLY, J.

In this child protective action initiated by the Department of Human Services (DHS or petitioner), respondent-mother, Holly Johnson, appeals as of right the "custody" order entered by Wayne Circuit Court Judge Jerome C. Cavanagh, assigned to the juvenile section of the family division of the court,¹ awarding the father, Michael Reid, joint legal custody and sole physical custody of the minor child, B.J. Sole legal and physical custody of the minor child had previously been awarded to Johnson by an earlier order entered in an active paternity action between Johnson and Reid pending before Wayne Circuit Court Judge Arthur J. Lombard, assigned to the domestic relations section of the family division.²

The issue raised on appeal requires us to consider whether a trial court presiding over a child protective proceeding, or juvenile case, may make determinations in related actions under the Child Custody Act (CCA). We hold that a trial court that is part of a circuit court's family division under MCL 600.1011 presiding over a juvenile case has jurisdiction to address related actions under the CCA consistent with MCL 600.1021 and MCL 600.1023, as well as local court rules. We further hold that when exercising its jurisdiction, a trial court must abide by the relevant procedural and substantive requirements of the CCA. Accordingly, we vacate the trial court's "custody" order entered in the child protective proceedings and remand for further proceedings.

I. FACTS AND PROCEDURAL BACKGROUND

Reid and Johnson had a child out of wedlock, B.J., who was born on March 3, 2004. When Reid discovered Johnson was pregnant with B.J., Johnson and Reid separated. Reid saw B.J. on only one occasion, for approximately 20 minutes, shortly after B.J.'s birth.

In October 2004, a paternity action was initiated in the Wayne Circuit Court, Johnson v. Reid, Docket Number 2004-462722-DP. This paternity action was assigned to Judge Lombard. Reid admitted that he is B.J.'s father and signed an affidavit acknowledging paternity.³ Judge Lombard entered a judgment of support and filiation granting Johnson sole legal and physical custody of B.J. Reid was not granted any parenting time but was ordered to pay child support and other related expenses.

Johnson also has another child, A.P., born on March 14, 1993, from a previous marriage to Gyshawn Presberry. Johnson and Presberry divorced in 1997. The judgment of divorce awarded Johnson legal and physical custody of A.P., permitted Presberry supervised parenting time, and required Presberry to pay child support. Presberry, however, failed to pay child support and at the time of these events had several warrants for his arrest because of his child support arrearage.

A. CHILD PROTECTIVE SERVICES PETITION AND TRIAL

In April 2006, the DHS received a complaint that Johnson was physically abusing A.P. A.P. allegedly had welts and her arms were bleeding. A.P. admitted that her mother frequently beat her. Johnson, however, evaded DHS involvement by sending A.P. to Tennessee.

In December 2006, after A.P. had returned to Michigan, another complaint was filed against Johnson. The DHS sought temporary wardship of both A.P. and B.J. in the case currently on appeal. In the initial petition, it was alleged that Johnson had beaten A.P. and had also allegedly left A.P., who was 12 or 13 years old at the time, to care for B.J. while Johnson was gone from 4 p.m. to midnight. The petition noted that neither of the children's fathers sought custody of the children, sought to visit them, or provide assistance for the children's care. As a result, the children were removed from Johnson's care on December 5, 2006, and placed with relatives.⁴

A preliminary hearing on the petition was held on December 6, 2006, Referee Leslie Graves⁵ presiding, during which the DHS indicated that it was unsafe to keep the children in Johnson's home. The court authorized the petition, continued the children's placement with relatives, and granted Johnson supervised parenting time at the agency. The matter was set for a pretrial hearing before Referee David Perkins,⁶ which was held on January 16, 2007. A.P.'s father did not attend the pretrial hearing. B.J.'s father, Reid, however, did attend this hearing and was granted supervised parenting time at the agency.

Trial began before Referee Perkins on March 22, 2007, and continued on April 20, 2007, and June 1, 2007. A.P. testified that the allegations of physical abuse were false and that although her mother threatened to whip her for misbehaving, Johnson never did. According to A.P., her father made false reports of child abuse in retaliation against Johnson for not permitting him to see A.P. A.P. further indicated that allegations that her mother had hit her with a vacuum cleaner cord, a belt, and a coat hanger and had left her alone with B.J. were false, but admitted making these accusations to a protective services worker. Nonetheless, A.P. testified that her mother "whooped" her "[l]ike how other kids get whippings" and further admitted that her mother whipped her with a belt sometime around Thanksgiving 2006. A.P. also testified that Johnson, on one occasion, had ordered her to strip down to her underwear and to lie down with her arms and legs outstretched while Johnson hit her on the thighs with a belt.

Johnson's mother, Judith Johnson, testified that she saw Johnson hit A.P. on two or three occasions and that she thought Johnson was hitting A.P. too hard. She also saw bruises on A.P.'s thighs that appeared to be "from some kind of cord...." Johnson's sister, Kristi Johnson, testified that A.P. had told her that Johnson whipped her on numerous occasions using a vacuum cleaner cord, an extension cord, or a belt and that Johnson had left A.P. alone with her brother until midnight.

Reid, who had lived with Johnson for three months, testified that he had also witnessed Johnson whip A.P. "uncontrollably" with a coat hanger and had also seen Johnson beat A.P. with her hand and a belt. In addition, Reid admitted to having broken Johnson's keyboard when Reid and Johnson separated because Johnson had allegedly tried to prevent him from leaving the apartment. As a result of this incident, Reid had pleaded guilty of malicious destruction of property and was ordered to pay restitution. Reid denied having any other convictions, although the DHS had documentation of prior convictions for domestic violence and carrying a concealed weapon. He admitted that he had a child support arrearage for B.J., and for three other children from other relationships as well, and that he had "dealt with the warrants for the child support." Reid testified that he had not seen B.J. because Johnson had prevented him from seeing his son. Johnson acknowledged that she wrote to Reid in 2005, after B.J.'s birth, and told him that she did not want him to have anything to do with B.J. Reid indicated that he was self-employed as a handyman and that he had part-time jobs delivering flowers and pizza. A.P.'s father did not attend the proceedings. At the end of the trial, the court assumed temporary jurisdiction over the children, ordered that a parent-agency agreement be prepared, ordered that psychological and psychiatric evaluations of Johnson, Presberry, and Reid be performed, and recommended counseling.

B. JULY 2007 DISPOSITIONAL REVIEW HEARING

Subsequently, at the dispositional hearing on July 27, 2007,⁷ the parties entered into a parent-agency agreement that included, among other requirements, obtaining suitable housing, individual and family counseling, obtaining a legal source of income, and attending parent education classes. Referee Perkins also ordered Johnson to undergo anger management and domestic violence counseling. Reid was permitted unsupervised parenting time, including overnights and weekends, while Johnson's supervised parenting time at the agency was reinstated.⁸ Between the trial and this dispositional hearing, Reid had not missed a single visit with his son.

C. OCTOBER 2007 PERMANENCY PLANNING HEARING

On October 24, 2007, a permanency planning hearing was held. The foster care worker assigned to the case, Khaleelah Dawson, testified that Reid was in full compliance with the parenting time schedule, had completed a psychological evaluation, and had recently been assigned an individual counselor but had not yet started counseling. Dawson reported that his unsupervised weekend visits with B.J. had been going well and that B.J. had indicated to her that he would like to stay with Reid. Dawson also indicated that B.J. "[got] along well" with Reid's other two children, who visited during the weekends and over the summer. Reid lived alone in his own home, and Dawson indicated that the previous caseworker had been out to the house and found it appropriate. Dawson recommended that B.J. be placed with Reid with in-home services specifically directed at social and educational resources on parenting.

With respect to Johnson, Dawson testified that Johnson was attending individual counseling. Dawson, however, commented that Johnson continued to deny any type of physical abuse and thus recommended individual psychotherapy. Dawson reported that Johnson had attended the domestic violence and substance abuse assessments, as well as parenting classes, but had failed to take any of the random drug screens ordered. Johnson had...