IN RE CODY THOMAS BENNETT
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STATE OF MICHIGAN
COURT OF APPEALS
__________________________________________
In re CODY THOMAS BENNETT, Minor.
BRUCE CRANHAM, Guardian ad litem,
UNPUBLISHED
July 16, 1999
Petitioner-Appellee,
v
No. 215809
Chippewa Circuit Court
Family Division
LC No. 98-012045 DL
CODY THOMAS BENNETT,
Respondent-Appellant.
Before: Whitbeck, P.J., and Markman and O’Connell, JJ.
O’CONNELL, J. (dissenting).
I respectfully dissent. Contrary to the majority, I am of the opinion that the analysis of this case
should include the entire history of this disputed custody situation, including the contentious relationships
between the persons involved. Once the evidence is viewed in its entirety and with proper perspective,
instead of as indicative of an isolated incident, it becomes clear that the trial court properly assumed
jurisdiction of respondent. I would affirm the trial court’s decision to take jurisdiction in this matter.
Parents come to the family court to seek its assistance. In some instances the purpose of the
court is not to declare winners and losers, or that an individual is guilty or innocent. The family court is,
in part, a relationship court whose job includes assisting persons with the difficult task of rearing their
children. In order to fulfill this duty it is sometimes necessary for the court to take jurisdiction over a
minor. The present case is one of those instances.
The majority reviews de novo the lower court record and concludes that the court erred when it
assumed jurisdiction over respondent. Rather than concentrate on the history of the family relationship
and the problems that precipitated the current crisis, the majority focuses solely on a single incident.
This narrow analysis under which the evidence indicates only a single instance of defiance of proper
authority dictates the conclusion that respondent was not repeatedly disobedient. However, family
disputes of the kind at issue here normally traverse a long road before arriving at the court house.
Without considering the entire history of the dispute, it is impossible to analyze this case properly. Were
this a case of a different sort I might join in the majority’s stoic review of the record and its conclusion
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that the record shows only a single incident where the court was obliged to look for multiple incidents,
but because the dispute involves complex family dynamics I insist on examining the record with that in
mind. Accordingly, I conclude that the record indicates not just one incident of disobedience but rather
a troubling pattern that eventually required court intervention.1
My reading of the record reveals that respondent’s parents have never been married but have
long been embroiled in a bitter custody dispute. Respondent, who is now 10 years old, is the prize in
this contest. The circuit court awarded the father custody, and the mother visitation rights. Still, despite
the court’s resolution of this matter, the parties have not been able to resolve their difficulties. In light of
the continuing tensions, the circuit court appointed a guardian ad litem for respondent. The circuit court
file would help this Court resolve this matter, but unfortunately is not part of the lower court record.
However, even without the help of the circuit court file, it is obvious that the parents do not get along
with each other, and that the guardian ad litem had to make a decision that he considered to be in the
best interest of respondent. The guardian ad litem was placed in a difficult situation because he was
responsible to see that the respondent obeyed the circuit court’s custody order, and, at the same time,
the lawful commands of his parents. It is clear that in some instances the guardian ad litem and
respondent have had to choose between complying with the court order and respecting the mother’s
desire to retain possession of respondent.
While visiting his mother, respondent indicated to his father and the guardian ad litem that he
would not obey the court order requiring him to return to his father’s home. Some time afterward the
father contacted the sheriff’s department for help, but the sheriff was unable to obtain respondent’s
compliance. Because respondent had refused to return to his father’s home, the guardian at litem
concluded that he and respondent’s father needed the family court’s assistance in resolving this difficult
situation. It should be clear that if the court did not act at that time, then respondent and his mother
would continue dictating to the father when respondent would return to the father’s home, the custody
order notwithstanding.
After listening to the testimony, the trial court took jurisdiction over respondent and ordered
respondent to report to his father. The court stated as follows:
[T]he Court’s going to … find that [respondent], by his repeated refusal to, or ongoing
refusal and previous refusals constitutes, ah, the basis defined in, and in violation of,
MCLA 712A.2(a)(3). Not only did he state that he would refuse to go to his father’s;
he continued, day after day, not to do that, and it wasn’t until there was actually a
petition filed that he was placed with his father; so, it’s the repeated, continuing refusal
that brings him within the statutory basis. Obviously, it is a reasonable and lawful
command to comply with the order of the court. Ah, he is not in a position to disobey
that order.
The court’s action resolved the immediate crisis, and gave effect to the custody order. Now, however,
the majority reviews this matter, finds only an isolated incident, and concludes that the lower court erred
when it concluded that the minor was “repeatedly disobedient.” Although one could legitimately read
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the transcript as the majority interprets it, I believe that when the lower court record is viewed in its
entirety it is clear that this contentious situation arose from more than one incident.
It is obvious from the lower court record that respondent had expressed his refusal to return to
his father’s home, that respondent in fact failed to appear at his father’s home at the required time, that it
had been necessary to engage the sheriff in an attempt to return respondent to his father’s home, and
that this dispute had been going on for an extended period of time.2 It is to the guardian ad litem’s
credit that he was able to persuade the trial court to take jurisdiction of this matter and resolve the long
standing dispute. If the trial court had refused to do so the matter most likely would still be unresolved.
It is the majority’s “dogged literalism”3 in reading the lower court record that allows it to box into a
single incident of disobedience what has obviously been a protracted pattern of noncompliance with
proper authority, this in turn providing a methodology for reversing the lower court.4
If the majority has serious doubts about the trial court’s decision, at most it should remand this
case for further articulation of factual findings and legal conclusions. In my opinion, the lower court
record adequately supports the trial court’s factual findings and decision in this difficult matter.
/s/ Peter D. O’Connell
1
The majority maintains that respondent was brought to the family court because he refused only once
to return to his father’s home. However, the majority opinion itself at least hints at a broader pattern of
disobedience, where it reports that respondent’s father testified that “he had, previous to July 24, 1998,
‘asked [respondent] to please come home, you know, without any hassles, on that day, like he was
supposed to.’” Majority opinion at 2. This testimony indicates that respondent’s father had
approached this conversation with apprehension of a repeated pattern of resistance to his lawful
commands.
2
It is apparent from the lower court record that respondent was in willful disobedience of an order from
the circuit court, which the guardian ad litem was simply attempting to enforce. It is also obvious that
respondent’s father was of the opinion that respondent was failing to adhere to the court order. The
trial court agreed with the guardian ad litem that respondent was in violation of the order. The majority
here draws a thin line between being repeatedly disobedient to a “parent[], guardian, or custodian,”
MCL 712A.2(a)(3); MSA 27.3178(598.2)(a)(3), and violating a court order by resisting efforts on the
part of a parent and a guardian ad litem to enforce it.
3
See Goodridge v Ypsilanti Twp Bd Command Officers Ass’n, 451 Mich 446, 453 n 8.
4
It appears that the majority does not want to hold a ten-year-old boy accountable for violating the
court order, implying that it is the parents, not respondent, who bear responsibility for the violation.
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