Summary
affirming trial court's adjudication of neglect by parents despite their executing a revocable POA/temporary delegation of parental authority to a recent acquaintance prior to child's birth considering mother's mental health issues, termination of Mother's parental rights to other children, and both parents’ homelessness
Summary of this case from S.G. v. Cabinet for Health & Family Servs.Opinion
No. 337357
08-10-2017
In re J. BEELER, JR., Minor.
UNPUBLISHED Kent Circuit Court Family Division
LC No. 16-053690-NA Before: HOEKSTRA, P.J., and MURPHY and K. F. KELLY, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order of adjudication assuming jurisdiction over the minor child. Because the trial court did not clearly err by assuming jurisdiction over the minor child, we affirm.
The child was born on November 29, 2016. On December 2, 2016, while the child and respondent were still in the hospital, an ex parte order was entered to take the child into protective custody. On December 5, 2016, a petition seeking jurisdiction was filed, and the trial court authorized the petition that same day.
On January 30, 2017, a contested adjudication and disposition hearing was held. At the hearing, Child Protective Services (CPS) investigator Jennifer Jacobs testified that respondent and the putative father were homeless; that once they left the hospital they planned to sleep in shelters when available; that during the daytime respondent planned to go to a library or a laundromat to keep the child warm; that respondent had her parental rights to two young children previously terminated in North Dakota; that respondent had a criminal history, which included convictions for domestic violence; that respondent self-reported having a history of mental health issues, which included documented involuntary hospitalizations; and that the parents did not have any supplies to support the child because the supplies were stolen.
Evidence was also presented at the preliminary hearing that respondent and the putative father had signed a power of attorney with Matthew Lehmann, a month before the child's birth. The parents met Lehmann two months before they signed the power of attorney. The parents planned for Lehmann to care for the child under the power of attorney until they were able to do so. However, Lehmann told Jacobs that he planned to eventually adopt the child. Jacobs testified that she was concerned about placement with Lehmann for various reasons, including the short acquaintance between the parties, respondent's lack of knowledge regarding the suitability of the placement, and the fact that the power of attorney could be revoked.
Lehmann testified that he met respondent and the putative father when they were riding on a bus that he was driving. According to Lehmann's testimony, the power of attorney was not a permanent plan and adoption was only a "worst case scenario." He stated that he believed that respondent only needed a stable job and housing before she was able to care for the child. He admitted that he was not aware of respondent's mental health issues or her involuntary hospitalizations. Lehmann also admitted that respondent had never visited his home. Nevertheless, Lehmann stated that he believed that the power of attorney was the parents' way of planning for the child as an alternative to "the system." Lehmann did not know at the time of the adjudication hearing that a power of attorney only lasted six months.
At the end of the hearing, the trial court took jurisdiction over the child due to an unfit home environment by reason of neglect, cruelty, drunkenness, criminality, or depravity. The trial court found that the allegations contained in the petition were proved by a preponderance of the evidence and that they established the basis for jurisdiction. The trial court recognized the parents' attempt to care for the child through the power of attorney with Lehmann but concluded that it was not sufficient to provide for the child due to the parties' lack of an established relationship, their general unfamiliarity with one another, and the temporary nature of the arrangement.
On appeal, respondent's sole contention is that the trial court erred by finding a statutory ground for jurisdiction in light of the power of attorney. In other words, although respondent cannot personally care for the child at this time, she maintains that she has provided the child with a fit home by arranging to place the child in Lehmann's care.
"We review the trial court's decision to exercise jurisdiction for clear error in light of the court's findings of fact." In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). "A trial court's decision is clearly erroneous '[i]f although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.' " In re Olive/Metts, 297 Mich App 35, 41; 823 NW2d 144 (2012) (citation omitted; alteration in original). "When reviewing the trial court's findings of fact, this Court accords deference to the special opportunity of the trial court to judge the credibility of the witnesses." In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005).
"In Michigan, child protective proceedings comprise two phases: the adjudicative phase and the dispositional phase." In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014). "Generally, a court determines whether it can take jurisdiction over the child in the first place during the adjudicative phase." Id. "To acquire jurisdiction, the factfinder must determine by a preponderance of the evidence that the child comes within the statutory requirements of MCL 712A.2[.]" In re Brock, 442 Mich 101, 108-109; 499 NW2d 752 (1993). In this case, the trial court assumed jurisdiction under MCL 712A.2(b)(2), which provides, in relevant part, that a court has jurisdiction in proceedings concerning a child:
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.MCL 712A.2 "speaks in the present tense, and, therefore, the trial court must examine the child's situation at the time the petition was filed." In re MU, 264 Mich App 270, 279; 690 NW2d 495 (2004). "The jurisdiction statute focuses on the physical and mental well-being of the minor child and the child's possibly unfit home environment." In re Webster, 170 Mich App 100, 106; 427 NW2d 596 (1988).
If unable to provide a fit home, a parent may make arrangements to provide proper care by entrusting the child to someone else, such as a relative. In re Mason, 486 Mich 142, 161 n 11; 782 NW2d 747 (2010). In any arrangement that attempts to provide the necessary care for a child, "[w]hat is important is whether the child receives proper care." In re Taurus F, 415 Mich 512, 543; 330 NW2d 33 (1982) (opinion by WILLIAMS, J.). "[A] parent's decision to place a child in a home where it will receive proper care evidences concern for the child, not neglect or abandonment." In re Nelson, 190 Mich App 237, 241; 475 NW2d 448 (1991).
Relevant to the proposed arrangement in this case, a parent may execute a power of attorney regarding the care and custody of a child as provided in MCL 700.5103(1), which states:
By a properly executed power of attorney, a parent or guardian of a minor or a guardian of a legally incapacitated individual may delegate to another person, for a period not exceeding 180 days, any of the parent's or guardian's powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward or to release of a minor ward for adoption.A power of attorney is "revocable at will and only effective for six months." In re Martin, 237 Mich App 253, 257; 602 NW2d 630 (1999). "When the power of attorney expires, the legal authority to care for the children terminates," and "the person with custody of the child no longer has legal power, authority, or obligation with regard to the welfare of the child." Id. Thus, depending on the circumstances, a power of attorney may be inadequate to ensure a child's well-being when it accomplishes only the temporary transfer of parental authority "without any apparent regard in planning for the long-term needs of the children." Id. at 258. See also In re Webster, 170 Mich App at 106.
Turning to the facts of this case, at the time the petition was filed, respondent was homeless, financially unable to provide for the child, and suffering from an untreated mental illness. Unable to care for the child, respondent made some effort to provide a home for the child, but her plan of action was to temporarily entrust her child to an acquaintance of a few months, whose home she had never even seen. Given the facts of this case, the trial court did not clearly err by finding that such measures did not demonstrate respondent's provision of a fit home for her child, and jurisdiction was proper under MCL 712A.2(b)(2).
First of all, in view of respondent's circumstances warranting the trial court's intervention, the temporary nature of the power of attorney supports the trial court decision to exercise jurisdiction in this case. That is, the power of attorney does nothing to ensure the fitness of the child's home because it may be revoked by respondent at any time, thereby subjecting the child to the same dangers warranting the trial court's intervention in the first place. See In re Martin, 237 Mich App at 247-258. Moreover, it appears that Lehmann and the parents intended for Lehmann's care of the child to be temporary, but neither respondent nor Lehmann offered any timeframe as to when it could be expected that respondent would be able to care for the child or how long they expected the arrangement to last. Indeed, Lehmann testified that he was unaware of the 6-month duration of the power of attorney, and he was ignorant of many of respondent's problems, including her mental health issues and her past involuntary hospitalizations. Given the seriousness of respondent's issues warranting the trial court's intervention, this temporary transfer of parental authority, without regard to the long-term needs of the child, did not prevent the trial court's exercise of jurisdiction over the minor child. See id. See also In re Taurus F, 415 Mich at 542-543 (opinion by WILLIAMS, J.).
Second, as related matter, the nature of the relationship between respondent and Lehmann supports the trial court's conclusion that the power of attorney does not divest the court of jurisdiction. This is certainly not a case where a parent has provided for the care of a child by establishing a guardianship with a responsible relative. See In re Mason, 486 Mich at 161 n 11. Instead, respondent intended to entrust her child to a non-relative's care on the basis of a few months' acquaintance. We do not suggest that the lack of a blood relationship is dispositive. But, the brevity of this non-relative relationship between respondent and Lehmann is notable given that, as emphasized by the trial court, Lehmann had not been vetted and respondent knew very little about Lehmann. On these facts, we are not definitely and firmly convinced that respondent's efforts to entrust her child to a virtual stranger demonstrated concern for the child rather than neglect. See In re Nelson, 190 Mich App at 241. Further, as discussed, Lehmann also knew very little about respondent, and Jacobs was concerned about the parties' arrangement because the parties were apparently not in agreement: Lehmann believed that there was a possibility of adoption, while respondent was not aware of any such plans and assumed she would remain a part of the child's life. Indeed, respondent's statements to Jacobs suggest that respondent intended to have the child in her care at libraries and laundromats. On the whole, the present arrangement does not appear designed to ensure that the child receives proper care. See In re Taurus F, 415 Mich at 542-543 (opinion by WILLIAMS, J.).
In light of all of these circumstances, respondent has not established that the execution of the power of attorney adequately provided for the child's needs, In re Martin, 237 Mich App at 258; and therefore the power of attorney was ineffective to thwart the trial court's jurisdiction, In re Webster, 170 Mich App at 106. Because jurisdiction was otherwise properly satisfied, the trial court did not clearly err by finding a statutory ground for jurisdiction. In re BZ, 264 Mich App at 295.
Affirmed.
/s/ Joel P. Hoekstra
/s/ William B. Murphy
/s/ Kirsten Frank Kelly