            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



In re S.N.B., Minor.


ANGELA BITKOWSKI,                                                   UNPUBLISHED
                                                                    April 30, 2019
               Petitioner-Appellee,

v                                                                   No. 345763
                                                                    Oakland Circuit Court
S.N.B.,                                                             Family Division
                                                                    LC No. 2018-862515-DL
               Respondent-Appellant.


Before: MARKEY, P.J., and FORT HOOD and GADOLA, JJ.

PER CURIAM.

        Respondent appeals as of right the trial court’s order of disposition referring her to
Wolverine Human Services for placement and care. The trial court had previously acquired
jurisdiction over respondent after she had entered a plea of admission to truancy, MCL
712A.2(a)(4), and incorrigibility, MCL 712A.2(a)(3). After respondent violated her probation by
refusing to remain in a nonsecure placement and to refrain from using controlled substances,
contrary to a court order, the trial court placed respondent with Wolverine Human Services. We
affirm.




                                 I. STANDARDS OF REVIEW

        A trial court’s findings of fact at a juvenile dispositional hearing are reviewed for clear
error and the ultimate order of disposition itself is reviewed for an abuse of discretion. People v
Brown, 205 Mich App 503, 504-505; 517 NW2d 806 (1994); In re Ricks, 167 Mich App 285,
295; 421 NW2d 667 (1988). “A trial court abuses its discretion when it chooses an outcome
falling outside the range of principled outcomes.” In re Kerr, 323 Mich App 407, 411; 917
                                                -1-
NW2d 408 (2018), quoting People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011). “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 Hudson, 294 Mich App 261,
264; 817 NW2d 115 (2011). This Court also reviews de novo “issues of statutory interpretation,
as well as family division procedure under the court rules . . . .” In re VanDalen, 293 Mich App
120, 131-132; 809 NW2d 412 (2011), quoting In re AMAC, 269 Mich App 533, 536; 711 NW2d
426 (2006).

                        II. MOTION TO WITHDRAW THE PETITION

        Respondent and petitioner first contend that the trial court erred in denying petitioner’s
motion to withdraw the petition because, even though both petitioner and respondent wanted the
court to dismiss the petition, the court did not follow the parties’ wishes. We disagree.

        The trial court has the discretion to enter any order of disposition that is “appropriate for
the welfare of the juvenile and society” after the juvenile admits to an offense and the court
acquires jurisdiction over the juvenile. MCR 3.943(E)(1); MCL 712A.2(a)(2) and (3); MCL
712A.18(1). Potential dispositions range from a warning, probation, community service or
placement in a private institution as was the case here. MCL 712A.18(1)(a) to (m). One of the
dispositional orders that the court may consider is dismissing the petition. MCL 712A.18(1)(a).
Whatever its decision, the court must enter an order of disposition that is “appropriate for the
welfare of the juvenile and society in view of the facts proven and ascertained[.]” MCL
712A.18(1). When entering an order of disposition, the trial court must “articulate on the record
the reasons for [its] disposition of the case.” In re Chapel, 134 Mich App 308, 315; 350 NW2d
871 (1984).

         The trial court had the discretion to grant or deny petitioner’s motion to withdraw the
petition, as that discretion was afforded the court by MCL 712A.18(1)(a),1 but it denied the
motion after determining that dismissing the petition would not be “appropriate for the welfare of
the juvenile and society . . . .” Instead the trial court placed respondent in a secure, private
institution, Wolverine Human Services, which is permitted under MCL 712A.18(1)(d). Further,
evidence offered before the trial court supported that determination. Respondent had a long
history of substance abuse, which included using crystal methamphetamine, cocaine, LSD, and
marijuana. Respondent also had a history of self-harm and during these proceedings concerns
were raised that she had harmed herself with a razor. Respondent also had unresolved mental
health issues that resulted from previous trauma. She had also engaged in inappropriate sexual
relationships with older men. For example, respondent was being sexually molested by an older
crystal methamphetamine dealer who was giving her free crystal methamphetamine.
Respondents’ parents were investigated by Child Protective Services (CPS) regarding allegations


1
  We acknowledge that the Legislature amended MCL 712A.18, effective June 12, 2018, to
provide that once the court acquires jurisdiction over a juvenile, it “shall order the juvenile
returned to his or her parent if the return of the juvenile to his or her parent would not cause a
substantial risk of harm to the juvenile or society.” 2018 PA 58 (emphasis added). The court’s
order of disposition in this case was entered August 27, 2018.


                                                -2-
of physical and verbal abuse but these allegations were not substantiated and respondent
subsequently stated that she made the allegations while high on crystal methamphetamine.
Respondent was given the opportunity to remain on probation in a nonsecure facility, but
violated probation by leaving the facility to use marijuana. According to Heather Kirchner, the
juvenile caseworker, respondent placed herself in “an extremely dangerous situation” as she was
in a car where the driver was being injected with heroin while driving.

        Kirchner repeatedly recommended that the court place respondent in a private institution
because she was concerned that a shorter, nonsecure program would not be sufficient to provide
respondent with the help that she needed. The evidence demonstrated that respondent had a
history of relapsing when afforded personal freedom. Moreover, according to the record,
returning home was not a viable option for respondent because her father was highly aggressive
and defensive during family therapy sessions. Respondent’s medical providers were also
concerned about claims that respondent’s parents were involved in abusing alcohol and
prescription medication in the home, and that respondent would be subjected to a “toxic”
environment if she returned home.

         The trial court considered the services that petitioner would offer respondent if the
petition was withdrawn, but concluded that those were inadequate to address respondent’s issues.
Because respondent had not been able to address her personal issues while in a nonsecure
facility, the court was justified in its concern that she would not be able to resolve any of her
personal issues while living at home. Moreover, it is apparent from the record that the trial court
was also justifiably concerned that returning home would result in a “substantial risk of harm to
[respondent].” MCL 712A.18(1). Specifically, the trial court stated, on the record, that it was in
respondent’s best interests to participate in a program that would address her extensive substance
abuse and trauma as opposed to returning home. Therefore, the court did not err when it denied
petitioner’s motion to withdraw the petition and placed respondent in a secure, private
institution.

         Respondent and petitioner both contend that petitioner should have been allowed to
voluntarily dismiss her petition under MCR 2.504, but that contention is without merit. MCR
2.504 allows a plaintiff to voluntarily dismiss a case either unilaterally or by an agreement with
all parties. In addressing whether a court rule should apply to a juvenile proceeding, this Court
has stated that:

               This Court interprets court rules using the same principles that govern the
       interpretation of statutes. Our purpose when interpreting court rules is to give
       effect to the intent of the Michigan Supreme Court. The language of the court
       rule itself is the best indicator of intent. If the plain and ordinary meaning of a
       court rule’s language is clear, judicial construction is not necessary. [In re
       McCarrick/Lamoreaux, 307 Mich App 436, 446; 861 NW2d 303 (2014) (citations
       and quotation marks omitted).]

MCR 3.901(A)(1) provides that the provisions in subchapters 3.900, 1.100, and 8.100 of the
Michigan Court Rules govern juvenile proceedings. Furthermore, MCR 3.901(A)(2) makes it
expressly clear that “[o]ther Michigan Court Rules apply to juvenile cases in the family division
of the circuit court only when this subchapter specifically provides.” Consequently, this Court

                                                -3-
has repeatedly held that it is improper to apply a general civil court rule to child protective
proceedings if that court rule has not specifically been incorporated by MCR 3.901 et seq. See
In re Collier, 314 Mich App 558, 569; 887 NW2d 431 (2016) (holding that MCR 2.603, the rule
pertaining to defaults, is not among the rules specifically incorporated into juvenile proceedings,
and therefore, not applicable); In re PAP, 247 Mich App 148, 153-154; 640 NW2d 880 (2001)
(holding that summary disposition pursuant to MCR 2.116 does not apply to proceedings
involving the termination of parental rights). Subchapter 3.900 of the Michigan Court Rules
does not mention subchapter 2.500. Therefore, the trial court could not have allowed petitioner
to voluntarily dismiss her petition under MCR 2.504 because that provision does not apply to
juvenile proceedings under the court rules. The court did not abuse its discretion by concluding
otherwise. 2

                         III. PLACEMENT IN A SECURE FACILITY

       Respondent and petitioner also contend that the trial court erred in placing respondent in
a secure private institution because there was a less restrictive means available that would
appropriately address respondent’s trauma and substance abuse issues. We disagree.

        The trial court had the discretion to enter an order of disposition for respondent that is
“appropriate for the welfare of the juvenile and society in view of the facts proven and
ascertained[,]” which includes placement in a secure, private facility. MCL 712A.18(1)(d).
However, if the court has jurisdiction over the juvenile pursuant to MCL 712A.2(a)(2) to (4), that
juvenile “shall not be detained in any secure facility designed to physically restrict the
movements and activities of alleged or adjudicated juvenile offenders unless the court finds that
the child willfully violated a court order and the court finds, after a hearing and on the record,
that there is not a less restrictive alternative more appropriate to the needs of the child.” MCL
712A.15(3). Further, the court is required to consider imposing increasingly severe sanctions
only in subsequent dispositions:

              In making second and subsequent dispositions in delinquency cases, the
       court must consider imposing increasingly severe sanctions, which may include
       imposing additional conditions of probation; extending the term of probation;
       imposing additional costs; ordering a juvenile who has been residing at home into
       an out-of-home placement; ordering a more restrictive placement; ordering state
       wardship for a child who has not previously been a state ward; or any other
       conditions deemed appropriate by the court. [MCR 3.943(E)(2).]



2
  Further supporting our conclusion, MCL 712A.11, the provision in the Probate Code, MCL
712A.1 et seq., governing the filing of petitions, does not expressly allow for the withdrawal of a
petition once the court has acquired jurisdiction. Additionally, MCL 712A.2a(1) provides that
“if the court has exercised jurisdiction over a juvenile under [MCL 712A.2(a) or (b)] jurisdiction
shall continue for a period of 2 years beyond the maximum age of jurisdiction conferred under
section 2 of this chapter, unless the juvenile is released sooner by court order.” (Emphasis
added.)


                                                -4-
         The record indicates that the court complied with the requirements of MCL 712A.15(3).
As noted above, the trial court had the discretion under MCL 712A.18(1)(d) to place respondent
in a private, secure institution. While that discretion was limited by MCL 712A.15(3), the record
demonstrates that the court properly found that respondent had willfully violated a court order
and that there was not a less restrictive alternative which was more appropriate. Respondent
admitted to willfully leaving Holy Cross without permission to smoke marijuana, thereby
violating her court-ordered probation. At the subsequent dispositional hearing, the court
considered whether to place respondent at home or in a secure facility, Wolverine Human
Services. However, the court determined that the less restrictive alternative, a nonsecure
placement at home, would not be appropriate because respondent had refused to remain in an
unsecure placement and to refrain from using drugs. The court determined that it was more
appropriate for respondent to participate in a program that would address respondent’s
“extensive substance abuse and trauma.” Notably, according to Kirchner, respondent’s
placement at Wolverine Human Services provided “intensive trauma-based therapy, substance
abuse therapy, family therapy” and a school so respondent could keep up with her education.
The court found that placement with Wolverine Human Services was the “least restrictive
setting[]” that would be most appropriate for respondent’s care. While respondent contends that
the trial court erred because the court made no effort to rehabilitate respondent in the community,
as mentioned earlier in this opinion, it is abundantly clear from the record that the trial court was
concerned that substantial harm would befall respondent if she were returned to the community
given her past behavior and the people that she was affiliating with to support her addiction.
MCL 712A.18(1). Therefore, because the record demonstrates that respondent had willfully
violated a court order and that a less restrictive alternate placement at home was not more
appropriate, the court did not abuse its discretion in placing respondent in a secure facility. MCL
712A.15(3).

        Finally, the record also demonstrates that the court complied with MCR 3.943(E)(2). The
court initially placed respondent in a nonsecure facility at Holy Cross. Even though Kirchner
recommended placement at Wolverine Human Services at the first dispositional hearing, the
court did not follow that recommendation and decided to place respondent in the less restrictive
alternative. The court only considered a more restrictive placement at Wolverine Human
Services at a subsequent dispositional hearing after respondent violated the terms of her
probation and placed herself in a situation of extreme danger. Therefore, the court satisfied the
requirements of MCR 3.943(E)(2) because the court only imposed increasingly severe sanctions
after the first disposition.

       Affirmed.



                                                              /s/ Jane E. Markey
                                                              /s/ Karen M. Fort Hood
                                                              /s/ Michael F. Gadola




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