                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                    UNPUBLISHED
In re LANNING, Minors.                                              March 14, 2017

                                                                    No. 333046 and 333048
                                                                    Gratiot Circuit Court
                                                                    Family Division
                                                                    LC No. 15-008101-NA


Before: CAVANAGH, P.J., and SAWYER and SERVITTO, JJ.

PER CURIAM.

       In these consolidated appeals, respondents appeal as of right an order terminating their
parental rights to their two children pursuant to MCL 712A.19b(3)(g) (failure to provide proper
care or custody) and MCL 712A.19b(3)(j) (likelihood of harm if children returned to parents’
home). We reverse and remand for further proceedings.

        Respondents have a long history of involvement with child protective services (CPS) in
multiple states with regard to several children. Respondent-father’s parental rights to six other
children were previously terminated. Respondent-mother’s parental rights to two other children
were previously terminated. Because of CPS involvement in the State of Washington with
respect to the children at issue here, respondent-mother contacted a previous foster family
member who she considered a sister, Ashleigh Miller, and Miller provided bus fare for
respondent-mother and her family to come to Michigan. When respondents arrived in Michigan,
petitioner, the Department of Health and Human Services, immediately became involved in this
matter based on a referral it received from CPS in Washington.

         On September 6, 2015, respondents entered into a safety plan with petitioner, which
included that respondent-father not have any unsupervised contact with the children. On
September 15, 2015, respondent-mother was arrested and jailed on a warrant for outstanding
child support. At that time, petitioner obtained a power of attorney from respondent-mother
which delegated to Miller the care and custody of the children and a second safety plan was
entered into by respondent-mother and petitioner which included that neither she nor respondent-
father would have contact with the children without prior consent. Thereafter, on September 28,
2015, respondent-mother consented to the suspension of her parental rights in favor of a limited
guardianship placement with Miller. On October 27, 2015, a petition initiating this action was
filed which indicated that the children came within the provisions of MCL 712A.2(b)(1) and (2),
that it was contrary to the welfare of the children to remain with their parents, and the court was



                                                -1-
requested to authorize the petition and remove the children—although the children did not live
with respondents.

       On November 9, 2015, petitioner filed a motion for direct placement of the minor
children and requested the court to continue the children’s placement with Miller—where they
had been living since they arrived in Michigan.

        On November 16, 2015, an amended petition was filed. The petition again alleged that
the children came within the provisions of MCL 712A.2(b)(1) and (2), and sought the
termination of both respondents’ parental rights. The petition asserted that several statutory
grounds for termination existed, and noted that respondents had failed to rectify the conditions
that brought the children under the jurisdiction of the court.

        A preliminary hearing was conducted on November 16, 2015. The petition was
authorized by the court after respondent-mother waived the probable cause determination and a
general denial was entered on her behalf. Petitioner requested that the children be removed from
the care and custody of respondent-mother and, consistent with its motion for direct placement,
requested the court to enter an order placing the children with Miller. Respondent-father was
considered the putative father and, thus, could not object to the “removal” of the children from
respondent-mother at that time. The court received the testimony of petitioner’s caseworker,
Brooke Mayer, who testified that it was contrary to the welfare of the children to remain in the
care of respondent-mother because she had her parental rights to another child terminated in the
past and she had a significant history of substance abuse, homelessness or insufficient housing,
and had no means to take care of the children. Even the one-bedroom apartment she lived in was
not suitable because it had no furniture. Mayer testified that it was contrary to the welfare of the
children to remain in the care of respondent-father because he had his parental rights to six
children terminated in the past and had a history of substance abuse, homelessness, and of not
taking his medications for mental health and medical issues. The court interrupted the
questioning of the witness to note that this was the first proceeding in this matter where the court
would be addressing the removal of these children from the home. The court noted: “There is a
related matter where the Court granted a temporary guardianship but at this point in time there
has been no court order removing these children in a child protective proceeding out of this
court.”1

       Thereafter, the court held that the request for removal was appropriate and was supported
by the evidence provided at the hearing. The court noted that, as set forth in MCR 3.965, it
needed to address whether it was contrary to the welfare of the children to stay in the custodial
home and, in this case, that was the home of the mother.2 The court noted that the mother was



1
 The order entered by the court after the preliminary hearing indicated that the children had not
been removed prior to that hearing and an order to take the children into protective custody was
necessary under the circumstances.
2
  MCR 3.965(B)(12) provides that, if the petition is authorized, the court must decide “whether
the child should remain in the home, be returned home, or be placed in foster care pending trial.”

                                                -2-
living with the alleged putative father. The court then rendered its several findings, which were
consistent with Mayer’s testimony, and granted petitioner’s request that the court take temporary
custody of the children at that time. The court noted that typically it would place the children
with petitioner for care and supervision, but in this case there was a request for continued
placement with Miller and it was granted.

       On January 14, 2016, because respondents contested the merits of the petition, an
adjudication bench trial began with Miller’s testimony. She testified that respondent-mother had
been her mother’s foster child, and she considered her a sister. Respondent-mother called her
from Washington and asked to move in with her because of a CPS case. Miller testified that she
purchased bus tickets for respondents, gave the Washington CPS worker her address, and let
respondents stay with her and her husband Derek. Miller testified that petitioner discussed a
guardianship, and respondents filled out papers to give her a guardianship over the children. She
added that respondent-mother also gave her power of attorney over the children.

        Respondent-father testified that he had 11 other children, and they were not in his care or
custody. He admitted that he had moved to several states, including North Carolina, Nevada,
California, and Washington before returning to Michigan. The Washington CPS became
involved because of allegations that respondents used methamphetamine, had inadequate
housing, and only fed the children Cheerios and milk. According to respondent-father, he
previously had problems with drug addiction, but he had been clean for four years. He further
explained that he took medication for bipolar disorder and schizophrenia, and that he received
social security disability payments because of his mental disability. Respondent-father testified
that, when they arrived in Michigan, petitioner met with them and they entered into a safety plan
agreement. On September 28, 2015, he did sign a petition to give Miller a limited guardianship,
explaining that they were homeless at the time and Miller could care for the children.

        Respondent-mother testified that she had moved to Illinois, North Carolina, Nevada,
California, and Washington before returning to Michigan with respondent-father. She admitted
that CPS became involved with respondents in each state except Illinois. She had not worked in
any of those states, and they relied solely on respondent-father’s disability income which was
currently $660 a month. They primarily lived in shelters, motels, or with friends. When they
arrived in Michigan, she entered into a safety plan and, after she was arrested, she entered into a
second safety plan with petitioner which included giving power of attorney to Miller.
Respondent-mother further testified that after she got out of jail, she signed a petition to give
Miller a temporary guardianship of the children which did not mean she was giving up her
parental rights. She and her husband offered money to Miller, but Miller said petitioner told her
that she could not accept money.            According to respondent-mother, she had used
methamphetamine about four years ago, but she was currently drug and alcohol free, had
obtained employment as a cook earning $9 an hour, and was participating in parenting classes.
She added that she and respondent-father felt that they were in a stable position.



In this case, the children were in Miller’s home, not a home of respondents. And respondents did
not live in Miller’s home with the children.


                                                -3-
        Following oral arguments, the trial court found that there was overwhelming evidence
that an allegation in petitioner’s petition was proved by a preponderance of the evidence entitling
the court to assume jurisdiction over the children. The court noted that the issue of jurisdiction is
assessed at the snap-shot in time when the petition was filed, and does not take into consideration
what the respondents had done since the petition was filed. The court cited respondents’ long
history of involvement with CPS in multiple states, as well as their financial and housing
struggles in those several states whereby respondents had been unable to maintain appropriate
and stable housing for their children. The court also noted that respondent-father’s established
history of mental illness and a seizure disorder, combined with the other circumstances of this
case, allowed the court to take jurisdiction and provide protective measures for the children.
Further, the court indicated that, while there was no evidence of current drug use, it could take
jurisdiction based upon respondents admitted history of methamphetamine addiction and the
history of neglect in combination with the other facts. Subsequently, the court entered an order
holding that statutory grounds to exercise jurisdiction over the children existed under MCL
712A.2(b)(2) which, according to the court’s order, is “an unfit home environment, by reason of
neglect . . . .”

        Subsequently, a four-day hearing regarding petitioner’s request for the termination of
respondents’ parental rights was conducted and concluded with the trial court holding that clear
and convincing evidence supported the termination of respondents’ parental rights under MCL
712A.19b(3)(g) (failure to provide proper care and custody) and MCL 712.19b(3)(j) (likelihood
of harm if children returned to parents’ home). The court also found that it was in each child’s
best interests to terminate respondents’ parental rights. This appeal followed.

       On appeal, both respondents argue that the trial court erred when it assumed jurisdiction
over the children because the children were in the care of Miller who had a valid power of
attorney at the time the petition was filed. We agree.

        This Court reviews a “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
finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a
mistake has been committed, giving due regard to the trial court’s special opportunity to observe
the witnesses.” Id. at 296-297.

       In the case of In re Sanders, 495 Mich 394; 852 NW2d 524 (2014), our Supreme Court
explained:

       In Michigan, child protective proceedings comprise two phases: the adjudicative
       phase and the dispositional phase. Generally, a court determines whether it can
       take jurisdiction over the child in the first place during the adjudicative phase.
       Once the court has jurisdiction, it determines during the dispositional phase what
       course of action will ensure the child’s safety and well-being. [Id. at 404 (citation
       omitted).]

Child protective proceedings are initiated when a petition is filed with the court that contains
facts constituting an offense against a child under the juvenile code, i.e., MCL 712A.2(b). Id. at
405; see also MCR 3.961(B)(3). “To acquire jurisdiction, the factfinder must determine by a

                                                 -4-
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). This Court has
determined that 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).

        This matter was referred to petitioner by Washington CPS. When respondents arrived in
Michigan by bus on September 6, 2015, one of petitioner’s caseworkers immediately engaged
respondents and presented a safety plan with regard to the children. By September 15, 2015,
petitioner obtained a power of attorney from respondent-mother which delegated to Miller the
care and custody of the children and expired by its own terms in six months. At the same time, a
second safety plan was entered into by respondent-mother and petitioner which included that
neither she nor respondent-father would have contact with the children without prior consent.
Thereafter, on September 28, 2015, respondent-mother consented to the suspension of her
parental rights in favor of a limited guardianship placement with Miller.

        On October 27, 2015, a petition initiating this action was filed which indicated that the
children came within the provisions of MCL 712A.2(b)(1) and (2). A preliminary hearing was
conducted on November 16, 2015, and concluded with the court finding by a preponderance of
the evidence that a statutory ground to exercise jurisdiction over the children existed under MCL
712A.2(b)(2) and an order was entered consistent with that finding.

        MCL 712A.2(b)(2) provides that the court may exercise jurisdiction over a juvenile
“[w]hose 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.” However, “at the time the petition was filed,” In re MU, 264 Mich
App at 279, the children resided with Miller, a fictive relative, who had power of attorney with
regard to the children’s care, MCL 700.5103, and had been appointed the children’s limited
guardian under MCL 700.5205. It is undisputed that the children lived with Miller and not with
respondents at the time the petition was filed and there was no allegation that Miller’s home was
an unfit place for the children to live, MCL 712A.2(b)(2). Thus, respondents argue that the trial
court improperly assumed jurisdiction by examining the respondents’ home rather than Miller’s
home. Petitioner counters that a power of attorney does not nullify a court’s ability to obtain
jurisdiction over minors.

        Both parties rely on the case of In re Webster, 170 Mich App 100, 102; 427 NW2d 596
(1988), in support of their opposing arguments. In that case, the petitioner filed a neglect
petition on the same day that the respondent-mother executed a power of attorney in favor of the
respondent-father who had not yet acknowledged paternity. Id. The Webster Court rejected the
respondent-mother’s argument on appeal that the power of attorney prevented the trial court
from exercising jurisdiction. Id. at 105. The Webster Court explained:

               The jurisdiction statute focuses on the physical and mental well-being of
       the minor child and the child’s possibly unfit home environment. This case is
       distinguishable from In re Taurus F, 415 Mich 512; 330 NW2d 33 (1982), reh
       den 417 Mich 1104 (1983), cited by respondents, since in Taurus F the
       respondent had entrusted her child to a responsible relative in a home suitable for

                                                -5-
       foster care. Id. at 542-543. Here, respondent[-father] could not properly even be
       considered a relative at the time the power of attorney was executed, since he
       continued to deny paternity until July 8, 1986[, which was after the adjudication].
       Further, our review indicates that respondent[-mother’s] execution of the power
       of attorney brought about no change in the child’s actual custodial environment[;
       the respondent-mother had been living with the respondent-father at his parents’
       home and one basis for the petition was “inadequate housing arrangements for the
       child, who was sleeping in the closet on dirty blankets thrown on a filthy floor
       smelling of animal urine and littered with dog food and cereal boxes.”].
       Therefore we conclude that such execution was ineffective to nullify the court’s
       properly obtained jurisdiction. [Id. at 106.]

        The instant case is distinguishable from Webster and actually presents facts more similar
to those in the case of In re Taurus F, 415 Mich 512; 330 NW2d 33 (1982). It is uncontested
that respondent-mother executed a power of attorney in favor of Miller. Respondent-mother
considered Miller to be her sister, and Miller explained that respondent-mother had been her
mother’s foster child at one time and she also considered respondent-mother to be her sister. But
regardless of the lack of a true familial relationship, the power of attorney did change the
children’s custodial environment. The respondents and their children moved in with Miller on
September 6, 2015, but respondents no longer resided with Miller after September 14, 2015.
Thus, after signing the power of attorney on September 15, 2015, the children were solely in
Miller’s care. The children’s physical environment did not change because they still resided at
Miller’s home, but their custodial environment changed because only Miller provided care and
custody. Child protective proceedings protect children but the adjudicative phase “is of critical
importance because the procedures used in adjudicative hearings protect the parents from the risk
of erroneous deprivation of their parental rights.” In re Sanders, 495 Mich at 405-406 (internal
quotation marks and citation omitted). Given the circumstances in this case, we are left with a
definite and firm conviction that the trial court clearly erred by exercising jurisdiction under
MCL 712A.2(b)(2).3 Because the trial court erred by exercising jurisdiction, we reverse the trial
court’s order terminating respondents’ parental rights. See Ryan v Ryan, 260 Mich App 315,
343; 677 NW2d 899 (2004) (“Because the trial court never properly assumed jurisdiction, all
orders based on the wrongful assumption of jurisdiction are void ab initio.”)

        Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.



                                                           /s/ Mark J. Cavanagh
                                                           /s/ David H. Sawyer
                                                           /s/ Deborah A. Servitto



3
  Having determined that reversal is warranted, we decline to reach respondent-mother’s other
argument on appeal.


                                               -6-
