Opinion
No. 354504
01-28-2021
In re N. J. PENDER, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 16-523759-NA Before: FORT HOOD, P.J., and CAVANAGH and TUKEL, JJ. PER CURIAM.
The lawyer-guardian ad litem (LGAL) for the minor child, NP, appeals by leave granted the trial court's August 13, 2020 order removing NP from the custody of his foster parents, Ronald and Brenda Gurney, and placing NP with his paternal grandmother, Darlene Pender (Darlene), who lives in Ney York City. Respondent mother, Nashalee Luisa Rosado, also lives in New York City. On appeal, the LGAL argues that the trial court erred by removing NP from the Gurneys' care and placing him with Darlene in New York. Petitioner and respondent mother disagree and additionally argue that this Court does not have jurisdiction of this case because the LGAL cannot appeal the trial court's placement order as of right and the LGAL has failed to seek leave to appeal. We agree that the LGAL cannot appeal the trial court's order as of right, but for the reasons we explain in Part II of this opinion, we treat the claim of appeal as an application and exercise our discretion to grant leave to appeal. Regarding the placement of NP on the merits, however, we conclude that we do not have a sufficient record to determine whether the trial court erred by placing NP with Darlene and, therefore, we remand for further proceedings to supplement the record.
I. UNDERLYING FACTS
The issue before this Court is whether the trial court erred when it removed NP from the care of the Gurneys and placed him in Darlene's care; the underlying termination of parental rights proceedings regarding respondent mother are not at issue on appeal. This appeal is not the first time that this case has been before this Court. This Court previously affirmed the trial court's order terminating the parental rights of both of NP's parents in In re Pender, unpublished per curiam opinion of the Court of Appeals, issued July 9, 2019 (Docket No. 344995; 345008), vacated in part ___ Mich ___; 938 NW2d 28 (2020). Respondent mother then appealed that decision to our Supreme Court, and respondent mother, the Department of Health and Human Services (DHHS), and the LGAL all filed a joint brief in our Supreme Court, arguing that the portion of this Court's opinion of In re Pender affirming the termination of respondent mother's parental rights should be vacated due to a jurisdictional issue not at issue in the present appeal. Our Supreme Court granted the request, vacating the trial court's order terminating respondent mother's parental rights as well as the portion of this Court's opinion in In re Pender that affirmed the termination of respondent mother's parental rights; our Supreme Court then remanded the case to the trial court. In re Pender, ___ Mich ___; 938 NW2d 28 (2020). This appeal arises from the trial court's actions on remand. Consequently, most of the factual and procedural history of this case, i.e. the proceedings directly related to the termination of NP's parent's parental rights, is not relevant to the narrow issues before us.
NP was born in February 2016, in Philadelphia, and NP and his parents moved to New York sometime in 2016. While NP and his parents lived in New York, Darlene would frequently care for NP. During late August or early September 2016, respondent mother took NP with her to Michigan to visit her boyfriend. Around October 23, 2016, respondent mother left NP in Michigan with her boyfriend so that she could return to New York for an unrelated criminal matter. Respondent mother did not return to Michigan for NP and on November 10, 2016, NP came into the care of the DHHS. NP was then placed with the Gurneys during the termination of parental rights proceedings that were initiated regarding NP's parents.
As discussed, the termination of parental rights proceedings are not relevant to the issue on appeal so we do not address them here. During those proceedings, Darlene expressed her desire to have NP placed with her. Darlene is a social worker in New York and, in May 2017, she submitted her application pursuant to the Interstate Compact on the Placement of Children (ICPC), MCL 3.711 et seq., so NP could be placed with her. The ICPC approved NP's placement with Darlene about one year later, but in May 2018 the Foster Care Review Board (FCRB) recommended keeping NP in the Gurneys' care instead of placing him with Darlene. The FCRB came to this decision, in part, because the permanency plan for NP had been changed to adoption, the Gurneys hoped to adopt NP, and additional ICPC approval would be required for Darlene to adopt NP. In June 2018, about one month after the FCRB recommended keeping NP in his then-current placement with the Gurneys, the trial court terminated the parental rights of NP's parents. As explained earlier, this Court affirmed that decision in July 2019, but our Supreme Court vacated and reversed the order terminating respondent mother's parental rights in February 2020.
During the pendency of the appellate proceedings, Darlene and the Gurneys both sought to adopt NP and Darlene eventually received ICPC approval to adopt him. That approval, however, became moot after our Supreme Court vacated the order terminating respondent mother's parental rights. On remand to the trial court, the DHHS and respondent mother both argued that NP should be placed with Darlene because Darlene was NP's relative and placement with Darlene would also give NP and respondent mother a chance to reunify because they would live in close proximity instead of living in separate states. The LGAL disagreed and argued that NP should remain in his then-current placement with the Gurneys. The FCRB agreed with the LGAL and recommended keeping NP in his then-current placement with the Gurneys. Following briefing and an August 11, 2020 hearing on the matter, the trial court agreed with the DHHS that NP should be placed with Darlene.
Two days after the hearing, on August 13, 2020, the trial court entered a written order removing NP from the Gurneys' care and placing him with Darlene.
The LGAL filed a motion for the trial court to stay its removal order. The motion was denied. The LGAL then filed a motion in this Court to stay the trial court's removal order. NP left Michigan with Darlene the day after the LGAL's motion was filed and this Court ultimately denied the LGAL's motion to stay. In re Pender, unpublished order of the Court of Appeals, entered August 19, 2020 (Docket No, 354504). This appeal followed.
II. LEAVE TO APPEAL
The LGAL filed her appeal as an appeal as of right, but the DHHS and respondent mother argued that the LGAL cannot appeal as of right in this case. The LGAL replied and argued that we should treat the LGAL's appeal as an application for leave to appeal. We agree with the DHHS and respondent mother that the LGAL cannot appeal the trial court's removal order as of right, but we nevertheless grant leave to appeal.
MCR 3.993(A) governs the types of orders that parties may appeal as of right to this Court. MCR 3.993(A)(1)-(6) address orders that arise from termination of parental rights cases and MCR 3.993(A)(7) provides that parties may file appeals as of right from "any final order." It is apparent that the August 13, 2020 order appealed from does not fall under any of the categories enumerated in MCR 3.993(A)(1)-(6). The more difficult question is what constitutes "any final order" within the meaning of MCR 3.993(A)(7). Unfortunately, MCR 3.993 does not include a definition of "final order."
MCR 3.993(A)(1)-(5) provide:
(A) The following orders are appealable to the Court of Appeals by right:MCR 3.993(A)(6) addresses orders involving Indian children.
(1) any order removing a child from a parent's care and custody,
(2) an initial order of disposition following adjudication in a child protective proceeding,
(3) an order of disposition placing a minor under the supervision of the court in a delinquency proceedings [sic],
(4) an order terminating parental rights,
(5) any order required by law to be appealed to the Court of Appeals.
Thus, we turn to the standard definitions of a "final order" in a civil case in MCR 7.202(6)(a). MCR 7.202(6)(i) defines the "first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties" to be a final order. While this language seems to fit more naturally to a standard plaintiff versus defendant lawsuit, it nevertheless seems the most applicable of any of the final order definitions in MCR 7.202(6)(a), as MCR 7.202(6)(a)(ii)-(v) cover specific circumstances that are plainly inapplicable. We conclude that the August 13, 2020 order is not a final order under MCR 7.202(6)(a)(i) because it does not dispose of all "claims" or determine all rights in this case, but rather makes a determination about NP's current physical placement in the ongoing case. It seems that an example of a "final order" under MCR 3.993(A)(7) would be an order dismissing or otherwise finally concluding respondent mother's underlying termination of parental rights case in the trial court, but there has been no such order.
MCR 7.202(6) provides:
(6) "final judgment" or "final order" means:--------
(a) In a civil case,
(i) the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties, including such an order entered after reversal of an earlier final judgment or order;
(ii) an order designated as final under MCR 2.604(B);
(iii) in a domestic relations action, a postjudgment order that, as to a minor, grants or denies a motion to change legal custody, physical custody, or domicile,
(iv) a postjudgment order awarding or denying attorney fees and costs under MCR 2.403, 2.405, 2.625 or other law or court rule,
(v) an order denying governmental immunity to a governmental party, including a governmental agency, official, or employee under MCR 2.116(C)(7) or an order denying a motion for summary disposition under MCR 2.116(C)(10) based on a claim of governmental immunity.
Finally, we agree with respondent mother that the jurisdictional analysis the LGAL relies on from In re EP, 234 Mich App 582; 595 NW2d 167 (1999), overruled in part on other grounds by In re Trejo, 462 Mich 341; 612 NW2d 407 (2000), is inapplicable to the current version of MCR 3.993(A). As set forth in In re EP, 234 Mich App at 590-591, the relevant court rule provision at that time allowed for an appeal of right from "an order of disposition placing a minor under the supervision of the court or removing the minor from his or her home" and this Court concluded that the order appealed from in In re EP was appealable of right because it "may be viewed as a supplemental or amended order of disposition." If the In re EP analysis controlled, the August 13, 2020 order might arguably be an amended order of disposition appealable of right as an order removing NP from the Gurneys' home, to be placed with Darlene (although one might dispute whether placement with foster parents constitutes a "home" within the meaning of the former court rule). But the current, more restrictive, MCR 3.993(A)(2) applies only to an "initial order of disposition following adjudication in a child protective proceeding," and the August 13, 2020 order is not the initial order of disposition in this file.
That being said, we have discretion to treat a claim of appeal as an application for leave to appeal, grant leave, and address the issues presented in the appeal on their merits. See, e.g., Wardell v Hincka, 297 Mich App 127, 133 n 1; 822 NW2d 278 (2012) ("Even if we were to conclude that the trial court's December 30, 2011, opinion and order is not a final order appealable by right, we would still, in the interest of judicial economy, exercise our discretion to treat defendant's claim of appeal as an application for leave to appeal, grant leave, and address the change-of-custody issue presented."). The matter presented in this appeal is of serious importance given that it involves whether NP should have remained with the Gurneys, with whom he had been placed for years, or have his placement changed to be with Darlene in New York. Of course, NP is not responsible for any error by the LGAL in filing this appeal as a claim of appeal rather than an application for leave to appeal. Thus, we choose to exercise our discretion to treat the claim of appeal as an application for leave to appeal, grant leave, and decide this appeal on its merits.
III. BEST INTERESTS
The LGAL argues that the trial court was required to make best-interests findings before removing NP from the Gurneys' care and placing him with Darlene, but that it failed to make any best-interests findings. We agree. Consequently, we remand to the trial court for it to make best-interests findings and to more thoroughly explain its reasoning for removing NP from the Gurneys' care and placing him with Darlene.
A. STANDARD OF REVIEW
A trial court's ruling regarding best interests is reviewed for clear error. In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." In re Ellis, 294 Mich App at 33. Furthermore, "[t]his Court gives effect to the Legislature's intent as expressed in the statute's terms, giving the words of the statute their plain and ordinary meaning. When the language poses no ambiguity, this Court need not look beyond the statute or construe the statute, but need only enforce the statute as written." In re LE, 278 Mich App 1, 22-23; 747 NW2d 883 (2008), abrogated on other grounds as recognized by In re Long, 326 Mich App 455; 927 NW2d 724 (2018) (citations and quotation marks omitted).
B. ANALYSIS
This Court and the Michigan Supreme Court have described the rules of statutory construction as follows:
The paramount rule of statutory interpretation is that we are to effect the intent of the Legislature. To do so, we begin with the statute's language. If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written. In reviewing the statute's language, every word should be given meaning, and we should avoid a construction that would render any part of the statute surplusage or nugatory. [PNC Nat'l Bank Ass'n v Dep't of Treasury, 285 Mich App 504, 506; 778 NW2d 282 (2009), quoting Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001).]"Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used." In re Smith Estate, 252 Mich App 120, 124; 651 NW2d 153 (2002). That being said, "technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning." MCL 8.3a.
The DHHS argues that the trial court properly placed NP with Darlene because a child must be placed in close proximity to his or her parent's home. The DHHS cites MCL 712A.18f for this proposition. The DHHS misreads MCL 712A.18f. The statute does not require that a child be placed in close proximity to his or her parents; rather it provides that "[t]he case service plan shall provide for placing the child in the most family-like setting available and in as close proximity to the child's parents' home as is consistent with the child's best interests and special needs." MCL 712A.18f(3) (emphasis added). Furthermore, MCL 712A.18f addresses instances in which a child is being removed from his or her parent's home. See MCL 712A.18f(4) ("The order of disposition shall state whether reasonable efforts have been made to prevent the child's removal from his or her home or to rectify the conditions that caused the child's removal from his or her home."). The order at issue here did not remove NP from his parents' home; rather, it removed NP from the Gurneys' home. Furthermore, while MCL 712A.18f(3) does express a preference for placing a child close to his or her parents, that preference should be incorporated into the case service plan; it is not listed as a requirement for the trial court to consider when deciding whether to change a child's placement. Thus, the policy preference expressed in MCL 712A.18f that a child be placed in close proximity to his or her parents is not controlling in this case.
Similarly, respondent mother argues that MCL 722.954a establishes that preference should be given to placement with relatives. Respondent mother is correct, but MCL 722.954a plainly addresses a child's initial placement following removal from his or her parent's home. See MCL 722.954a(2) ("Upon removal, as part of a child's initial case service plan . . . the supervising agency shall, within 30 days, identify, locate, notify, and consult with relatives to determine placement with a fit and appropriate relative who would meet the child's developmental, emotional, and physical needs.") (emphasis added). See also MCL 722.954a(5) ("Before determining placement of a child in its care, a supervising agency shall give special consideration and preference to a child's relative or relatives who are willing to care for the child, are fit to do so, and would meet the child's developmental, emotional, and physical needs. The supervising agency's placement decision shall be made in the best interests of the child.") (emphasis added). Consequently, MCL 722.954a does not apply to the circumstances of this case.
Instead, MCL 712A.13b governs the change of placement decisions for a child who is in foster care. In relevant part, MCL 712A.13b provides:
(1) If a child under the court's jurisdiction under section 2(b) of this chapter, or under MCI jurisdiction, control, or supervision, is placed in foster care, the agency shall not change the child's placement except under 1 of the following circumstances:
(a) The person providing the foster care requests or agrees to the change.
(b) Even though the person providing the foster care objects to a proposed change in placement, 1 of the following applies:
(i) The court orders the child returned home.
(ii) The change in placement is less than 30 days after the child's initial removal from his or her home.
(iii) The change in placement is less than 90 days after the child's initial removal from his or her home, and the new placement is with a relative.
(iv) The change in placement is in accordance with other provisions of this section.
* * *
(5) If after investigation the foster care review board determines that the move is not in the child's best interest, the agency shall maintain the current placement until a finding and order by the court or, if the child is under MCI jurisdiction, control, or supervision, a decision by the MCI superintendent.
* * *
(6) After hearing testimony from the agency and any other interested party and considering any other evidence bearing upon the proposed change in placement, the court shall order the continuation or restoration of the placement unless the court finds that the proposed change in placement is in the child's best interests.
MCL 713A.13b has not been interpreted in any published case. As such, we must turn to the tools of statutory interpretation to establish its meaning. The language of MCL 713A.13b is clear and unambiguous so each word must be given its plain and ordinary meaning. See PNC Nat'l Bank Ass'n, 285 Mich App at 506.
None of the circumstances outlined in MCL 713A.13b(1)(a) and (b)(i)-(iii) apply in this case because the Gurneys did not consent to the DHHS moving NP, and when NP was moved it was more than three years after he was initially placed with the Gurneys. But pursuant to MCL 713A.13b(1)(b)(iv), (5), and (6) the trial court could nevertheless move NP if it found that such a move was in his best interests and it issued an order to move NP. The trial court did issue an order for NP to be placed with Darlene, so the only remaining question is whether the trial court properly found that placing NP with Darlene was in NP's best interests.
While there was nothing inherently wrong about the trial court expressing a preference for placing NP with his relative, Darlene, or placing NP closer to respondent mother, those considerations alone were not sufficient to move him under MCL 713A.13b. Rather, the trial court was required to make a best-interests finding. But the trial court failed to do so. At the conclusion of the August 11, 2020 hearing, the trial court's findings, in full, were as follows:
Okay. I've heard enough.
The Foster Care Review Board's opinion was not a unanimous one. I have ordered a permanency plan. The child was placed [sic] foster care suitable relative.
The move as proposed by DHHS would seem to be in furtherance of the Court's permanency plan for the juvenile.
Everything that happens is going to have at least some traumatic effects on the child. I'm very troubled by that. Yes, it's my responsibility. In terms of the persons who put all this in motion, the mom and dad, with getting involved in drugs and having children. That's who put all this in motion. I'm trying to sort this out.
I'm going to uphold DHHS moving the child. [ZH, pp 43-44.]
The trial court found that placing NP with Darlene would assist with the DHHS's permanency placement plan of reunification, but it failed to make any findings regarding what was in NP's best interests. It erred by doing so. Furthermore, the parties had numerous factual disputes in this case regarding whether NP was harmed as a result of being in Darlene's care when respondents and NP lived in New York prior to these proceedings; the parties also disputed how much contact Darlene had with NP while he was in the Gurneys' care. For example, the Gurneys stated that Darlene never gave NP any gifts. In contrast, Darlene disagreed and said that she did give NP gifts, but that these gifts were always gone by the next time she saw NP. Without any findings of fact regarding which of these versions of events are more credible, we do not have a sufficient record to determine which placement was in NP's best interests. As such, we cannot determine whether NP should have been removed from the Gurneys' care and placed with Darlene; a remand for additional factual findings by the trial court is necessary.
On remand, the trial court shall make best-interests findings regarding which placement is in NP's best interests. The trial court must fully explain its reasoning so that a sufficient record is created for this Court to review should any party appeal the trial court's decision. On remand, the trial court shall also hold any evidentiary hearings it deems necessary to properly address the best-interests issue. Finally, until a new placement decision is reached, NP shall remain in his current placement with Darlene.
IV. CONCLUSION
For the reasons stated we grant the LGAL leave to appeal and we remand to the trial court for additional factual findings regarding which placement is in NP's best interests. NP shall remain in his current placement with Darlene during the pendency of those proceedings. We do not retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ Mark J. Cavanagh
/s/ Jonathan Tukel