IN RE MOLNAR MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of JAMES RYAN MOLNAR and
ELIZABETH RENEE MOLNAR, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
May 5, 2009
Petitioner-Appellee,
v
No. 286987
Oakland Circuit Court
Family Division
LC No. 2003-685908-NA
GERALD MOLNAR,
Respondent-Appellant.
Before: Cavanagh, P.J., and Fort Hood and Davis, JJ.
PER CURIAM.
Respondent-Appellant, Gerald Molnar, appeals as of right from the trial court’s order
terminating his parental rights to the minor children pursuant to MCL 712A.19b(3)(b), (3)(c)(i),
(3)(g), and (3)(j). We affirm.
Petitioner sought termination of respondent’s parental rights after the minor daughter
reported sexual abuse. A criminal case was brought against respondent, but he was acquitted.
However, following a bench trial, the family court found evidence of abuse by a preponderance
of the evidence and exercised jurisdiction over the minor children. The family court entered
various orders requiring respondent to complete services to reunify with his children.
Ultimately, a parent-agency agreement was executed. The agreement required respondent to: (1)
complete parenting classes and demonstrate the skills acquired from a program of his choice; (2)
maintain bimonthly contact with the caseworker; (3) sign necessary releases; (4) complete a sex
offender assessment with an evaluator and follow the recommendations of the assessment; (5)
obtain legal employment; (6) have suitable housing; (7) enroll in anger management counseling;
and (8) provide a list of medications. Caseworker Katty Bedell reported that respondent made
progress in completing the parent-agency agreement. After Bedell was transferred to preventive
services, caseworker Louis Andraski examined the proof of compliance with the parent-agency
agreement and concluded that respondent had not complied. Andraski opined that respondent
provided certificates of completion for parenting and anger management classes, but did not
demonstrate that he benefited from the classes. The caseworker concluded that respondent
completed assessments with two evaluators, but failed to comply with their recommendations.
Consequently, Andraski filed a petition for termination of parent rights because the case had
been pending for nearly four years. The trial court terminated respondent’s parental rights and
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concluded that termination was not contrary to the children’s best interests. Respondent appeals
as of right.1
I. Polygraph Examination
Respondent alleges that the family court erred by failing to grant him a hearing regarding
the validity, reliability, and relevance of the polygraph examination. We disagree. The trial
court’s decision whether to hold an evidentiary hearing is reviewed for an abuse of discretion.
People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272 (2008). An abuse of discretion
occurs when the trial court chooses an outcome falling outside the range of reasonable and
principled outcomes. Id. at 217; see also People v Babcock, 469 Mich 247, 269; 666 NW2d 231
(2003).
Error may not be predicated upon the trial court’s exclusion of evidence unless a
substantial right of the party is affected, and an offer of proof is submitted when the evidence is
excluded. MRE 103(a)(2); Detroit v Detroit Plaza Ltd Partnership, 273 Mich App 260, 291;
730 NW2d 523 (2006). An offer of proof is necessary to advise the trial court of the nature and
purpose of the proposed evidence and provides a basis for the appellate court to determine if the
trial court’s ruling should be sustained. Detroit Plaza, supra. When a party fails to make an
offer of proof regarding the substance of the evidence, the issue is not preserved for appellate
review. Id. at 291-292. Further, absent some evidence of harm as a result of the ruling, the
appellate court cannot conclude that the trial court’s decision was an abuse of discretion. Id. at
292. To admit expert testimony in accordance with MRE 702, the trial court, in its role as
gatekeeper, must ensure that both the methodology upon which the expert draws its conclusions
and the data underlying the expert’s theories are reliable. Gilbert v DaimlerChrylser Corp, 470
Mich 749, 779; 685 NW2d 391 (2004). Results of a polygraph examination are not admissible at
trial, People v Barbara, 400 Mich 352, 359; 255 NW2d 171 (1977), because the polygraph
technique has not received the degree of acceptance or standardization among scientists such that
admissibility is permitted. People v Ray, 431 Mich 260, 265; 430 NW2d 626 (1988).
Respondent asserted that the trial court was obligated to conduct a hearing regarding the
admission of polygraph evidence because it was time to revisit the Barbara decision, polygraph
evidence was admissible in other contexts, and case law required the court to conduct a hearing.
However, review of the lower court file reveals that respondent merely submitted the polygraph
results. When the lower court excluded the polygraph results, respondent failed to make an offer
of proof with scientific data or studies to indicate that, since the time the Barbara decision was
rendered, polygraph examinations had achieved acceptance or standardizations among scientists
1
As an initial matter, we note that respondent, as the appellant, was obligated to file the
complete record on appeal, and we cannot consider record evidence for which there is no
evidentiary support. Band v Livonia Assoc, 176 Mich App 95, 103-104; 439 NW2d 285 (1989).
The exhibits were not contained in the lower court record, and a complete set of transcripts was
not submitted with the record. Additionally, MCR 7.212(C)(6) and (C)(7) provide that the brief
must delineate both favorable and unfavorable material facts with specific page references to the
transcripts. Respondent’s brief does not comport with the court rules. Despite these
deficiencies, we nonetheless will address the merits of the issues raised on appeal.
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as reliable evidence. In light of the complete absence of an offer of proof, the trial court did not
abuse its discretion by failing to hold an evidentiary hearing. Unger, supra.
II. Prior Bad Acts
Respondent contends that the trial court erred in allowing petitioner to introduce evidence
of prior unconvicted bad acts without establishing a nexus between the acts and the ability to
parent. We disagree. An issue is preserved for appellate review when it is raised, addressed, and
decided in the trial court. Persinger v Holst, 248 Mich App 499, 510; 639 NW2d 594 (2001).
Respondent fails to identify, with citation to the record, the prior bad act in dispute and whether
it was raised, addressed, and decided in the trial court. Additionally, he does not identify the
type of hearing during which admission was sought. Consequently, respondent failed to
demonstrate that this issue is preserved for appellate review. Id.
A trial court’s ruling regarding the admission of evidence is reviewed for an abuse of
discretion. In re Utrera, 281 Mich App 1, 15; 761 NW2d 253 (2008). The trial court abuses its
discretion when it chooses an outcome falling outside the range of reasonable and principled
outcomes. Babcock, supra. After jurisdiction over a child is assumed in the adjudicative phase,
the court must hold a hearing to determine the appropriate disposition of the child. MCR 3.973;
In re AMAC, 269 Mich App 533, 536-537; 711 NW2d 426 (2006). Generally, during the
disposition hearing, the Rules of Evidence do not apply. AMAC, supra at 537. Rather, all
relevant and material evidence is admissible, and evidentiary privileges are abrogated. Id.; see
also MCR 3.973(E)(1) and (2). Furthermore, in a bench trial, the court is presumed to know the
applicable law and the difference between admissible and inadmissible evidence. People v
Lanzo Constr Co, 272 Mich App 470, 484-485; 726 NW2d 746 (2006). The judge’s knowledge
of the law allows him to ignore errors committed at trial and to decide a case solely upon the
evidence properly admitted at trial. People v Taylor, 245 Mich App 293, 305; 628 NW2d 55
(2001). Error may not be predicated upon a ruling admitting evidence unless a substantial right
of the party is affected. MRE 103(a).
In the present case, respondent failed to identify the prior bad act and the type of hearing
during which the act was admitted. Review of the lower court record reveals that prior bad acts
were referenced during the disposition hearing, and the Rules of Evidence do not apply. AMAC,
supra. Furthermore, review of the trial court’s decision regarding the merits of the termination
reveals that the decision was premised on the factual findings addressing the completion of the
parent-agency agreement. The trial court did not rely on prior bad acts as the reason for the
termination. Accordingly, this claim of error does not provide respondent with relief.
III. Arbitrary and Capricious Demands
Respondent alleges that the family court imposed arbitrary and capricious demands by
relying on the arguments of the lawyers and failing to hold hearings. We disagree. This Court
reviews de novo the issue of whether a due process violation has occurred. Thomas v Pogats,
249 Mich App 718, 724; 644 NW2d 59 (2002). A respondent in a termination of parental rights
case is entitled to procedural due process protections because a significant liberty interest is at
stake – the parent’s interest in the companionship, care, custody, and management of his
children. In re Brock, 442 Mich 101, 109; 499 NW2d 752 (1993). Fundamental fairness is a
requirement of due process, and the procedure required in a particular situation is determined by
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evaluating the interests at stake, the private interest affected by the official action, the risk of an
erroneous deprivation in light of the procedures employed, and the governmental interest. Id. at
111.
MCL 712A.19 governs termination, review hearings, plans, agency reports, and efforts to
reunify the child with the family. It provides that if a child remains under court jurisdiction, the
court has the authority to enter necessary and proper orders. MCL 712A.19(1). A review
hearing is to be held, MCL 712A.19(2), and at a review hearing, the court must review the
compliance with the case service plan to address the services provided and the requirements to
comply with the case service plan. MCL 712A.19(6). An agency report filed with the court is to
be accessible to all parties, and the report shall be offered into evidence. MCL 712A.19(11).
Respondent seemingly takes issue with the fact that the family court judge adopted the
parent-agency agreement and the recommendations offered by the evaluators. However, by
statute, the case service plan or parent-agency agreement is the measure by which the court
determines the progress made in the case and the next action to take. See MCL 712A.19(7). The
court may then decide to order additional services to rectify the conditions that caused the
children to come into the court’s jurisdiction. Id. Accordingly, respondent’s claim of error is
without merit. The family court did not arbitrarily accept the arguments of lawyers and
evaluators, but rather, followed the statutory requirements to determine if efforts were made to
reunify the family by examining the parent-agency agreement and holding review hearings.
MCL 712A.19.
IV. Access to the Children and Lack of Bonding
Respondent contends that he was inappropriately denied access to his children when the
family court did not make a finding of sexual abuse or touching. Rather, the trial court merely
found, by a preponderance of the evidence, that the daughter was more credible than respondent.
We disagree. Parenting time orders are reviewed de novo, but this Court must affirm the trial
court unless its findings of fact were against the great weight of the evidence, the court
committed a palpable abuse of discretion, or the court committed a clear legal error. Berger v
Berger, 277 Mich App 700, 716; 747 NW2d 336 (2008).
Respondent, as the appellant, had the duty to file the complete record on appeal, and this
Court cannot consider record evidence for which there is no evidentiary support. Band v Livonia
Assoc, 176 Mich App 95, 103-104; 439 NW2d 285 (1989). Irrespective of respondent’s failure
to provide the transcripts of the hearing wherein the minor child testified to abuse,2 the argument
is illogical. By finding the minor child’s testimony credible, the family court concluded that she
had been inappropriately touched, and thereby took jurisdiction. Furthermore, the Child
Protection Law, MCL 722.638(2), provides that in a petition submitted because a parent is the
2
Respondent filed a federal action against the reporters and investigators of abuse, but the
litigation was dismissed. Molnar v Care House, 574 F Supp 2d 772, 801 (ED Mich 2008).
According to this opinion, the minor child stated that respondent put his hands down her pants
and “touched her vulva.” Id. at 779. Therefore, by finding this statement credible, the family
court concluded that sexual abuse had occurred.
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suspected perpetrator of sexual abuse, the agency “shall” include a request for termination at the
initial dispositional hearing. Thus, when termination is sought at the initial stage for sexual
abuse, the agency is not required to provide services or allow visitation. Indeed, Bedell testified
that it was petitioner’s policy to provide services in incest cases only when expressly ordered by
the family court. Taxpayer funds were not to be expended in instances of familial sexual abuse.
Despite petitioner’s request for termination and its stance on the issue of visitation, the
family court entered orders requiring petitioner to provide services. Specifically, the family
court3 ordered respondent to attend the Father’s Resource Center, a program that allowed fathers
to reunite with their children before a licensed therapist to ensure appropriate visitation. Two
caseworkers testified that participation in this program would have effectively lifted the no
contact or no visitation provision. In the findings of fact and conclusions of law, the family
judge concluded that there was no merit to respondent’s assertion that he could not participate in
the program because of his age. In light of this factual finding, we cannot conclude that
respondent was erroneously deprived of access to his children when he failed to avail himself of
a program that would have provided visitation in a supervised, therapeutic setting. Berger,
supra.
V. Gross Negligence by Attorneys
Respondent asserts that grossly negligent and incompetent lawyers blocked access to the
minor children who were desperate to see him. There is no indication that this issue was raised,
addressed, and decided in the lower court; it is not preserved for appellate review. Persinger,
supra. Furthermore, an appellant’s failure to properly address the merits of an assertion of error
with citation to authority constitutes abandonment of the issue. Woods v SLB Prop Mgt, LLC,
277 Mich App 622, 626-627; 750 NW2d 228 (2008). A party may not merely announce a
position to the appellate court and then require the Court to search for authority to sustain the
position. Goolsby v Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984). Although
respondent alleges that guardians ad litem and “lawyers” were grossly negligent he does not
elaborate with the individual names. There is no indication that respondent moved to disqualify
any lawyer on the basis of competency. Respondent does not identify any rules of professional
conduct that may have been violated to support this issue. Therefore, the issue is unpreserved
and abandoned on appeal. Woods, supra.
VI. Coerced Evaluations
Respondent contends that he was required to pay for “evaluation after evaluation” in
the search for a negative opinion, and the requirement that he pay was offensive to fundamental
fairness. This issue was not raised, addressed, and decided in the lower court, and therefore, it is
not preserved for appellate review. Persinger, supra. Additionally, the record does not
substantiate the claimed error. Irrespective of the evaluators’ failure to classify respondent as a
3
Oakland Circuit Court Judge Daniel Patrick O’Brien presided over the adjudicative phase and
found sexual abuse based on a preponderance of the evidence. This judge ordered the agency to
provide services. The case was transferred to Oakland Circuit Court Judge Leo Bowman. This
judge presided over the disposition phase and rendered the decision to terminate parental rights.
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pedophile, petitioner’s witnesses opined that there were many negatives surrounding respondent;
he engaged in repeated negative conduct, did not assume any responsibility for his conduct, and
therefore, did not have any motive to change his conduct. Consequently, it was recommended
that respondent participate in additional services because he refused to account for his behavior.
The contention that additional evaluations were ordered to obtain a negative opinion is not in
accordance with the record evidence.
With regard to the payment requirement, respondent repeatedly asserted that he had
sufficient financial means such that he did not need to obtain employment. The testimony
established petitioner’s policy that taxpayer funds are not expended in incest cases.
Consequently, to reunify with his children, respondent was required to pay for the services
ordered by the court.4
VII. Disability
Respondent asserts that the trial court failed to recognize his physical disability and to
tailor a remediation plan to address his disability. We disagree. Respondent does not cite to any
location in the lower court record wherein he asserted that he was disabled and prevented from
completing the parent-agency agreement because of his disability. Moreover, after the family
court ordered respondent to obtain legal employment, he did not assert that it was impossible to
comply because of his health problems. Therefore, this issue is not preserved for appellate
review. Persinger, supra.
VIII. Agency Cooperation
Respondent next alleges that the trial court erred in failing to recognize that he had to
repeatedly question caseworkers regarding the requirements necessary to regain contact with his
children. We disagree. A trial court’s decision to terminate parental rights and the best interests
decision must be proven by clear and convincing evidence. In re JK, 468 Mich 202, 209-210;
661 NW2d 216 (2003). The appellate court reviews the decision for clear error. Id. A decision
is clearly erroneous if, although there is evidence in support, the reviewing court is left with a
definite and firm conviction that a mistake has been made following examination of the entire
record. Id. When determining whether to dismiss jurisdiction or terminate parental rights, the
family court must apprise itself of all relevant circumstances including the reason that
jurisdiction was assumed. See In re LaFlure, 48 Mich App 377, 390-391; 210 NW2d 482
(1973).
Review of the trial court’s opinion and order terminating parental rights reveals that the
family court did address deficiencies on the part of petitioner. Specifically, the judge expressed
disappointment with the caseworkers for failing to seek court intervention to require respondent
to timely fulfill court ordered services. The judge noted that judicial intervention might have
shortened the length of the case that lasted for four years. Additionally, the judge expressed
concern that Bedell may have tacitly approved respondent’s enrollment in an on-line parenting
4
Although respondent contended that he and his fiancé had sufficient financial means, he did not
provide any support for the children.
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course. However, despite the acknowledgement of agency deficiencies, the court nonetheless
concluded that the delay and subterfuge by respondent exceeded any problems caused by the
agency. More importantly, the family court found that respondent did not satisfactorily complete
the parent-agency agreement. JK, supra. This issue does not entitle respondent to appellate
relief.
IX. Completion of the Parent-Agency Agreement
Next, respondent asserts that the termination was against the great weight of the evidence
when caseworker Bedell advised that he had completed the parent-agency agreement. We
disagree. A trial court’s decision to terminate parental rights must be proven by clear and
convincing evidence. JK, supra. We review the lower court’s decision for clear error. Id. This
standard of review expressly recognizes that it is the findings and decisions of the lower court
that are dispositive, not the opinion of the caseworker.
More importantly, during respondent’s testimony, he acknowledged that he did not
comply with the terms of the parent-agency agreement. Initially respondent testified that he
complied with the agreement. However, although he completed the court ordered evaluations, he
admitted that he did not comply with the evaluators’ follow up recommendations. Additionally
respondent alleged that he attended therapy with his own psychiatrist, but it was ultimately
learned that he was not participating in therapy, but rather, only obtained quarterly medication
reviews. A parent’s failure to comply with the parent-agency agreement evidences that the
parent will fail to provide proper care and custody for the child. JK, supra at 214. Under these
circumstances, the opinion of the caseworkers was irrelevant, and respondent does not challenge
the ultimate rulings of the family judge regarding noncompliance, termination, and best interests.
X. Judicial Disqualification
Respondent contends that it was erroneous for Judge Bowman to preside over this case
when, as a district court judge, he was a defendant in an action filed by counsel for respondent.
We disagree. As an initial matter, we note that respondent failed to provide the complete record
on appeal with regard to this issue. The transcript of the hearing before Judge Bowman or an
order of disqualification is not contained in the lower court record, and generally, this issue could
not be addressed on appeal. See Band, supra. However, the circuit court chief judge entered an
opinion and order denying the request for disqualification. Accordingly, we will address the
chief judge’s decision.
This Court reviews the chief judge’s decision regarding a motion for disqualification,
MCR 2.003, for an abuse of discretion. Meagher v Wayne State Univ, 222 Mich App 700, 725;
565 NW2d 401 (1997). The factual findings on a motion for disqualification are reviewed for an
abuse of discretion, but the application of the facts to the law is reviewed de novo. Van Buren
Twp v Garter Belt, Inc, 258 Mich App 594, 598; 673 NW2d 111 (2003). A party seeking
disqualification must overcome a heavy presumption of judicial impartiality. Id. Specifically, it
must be proven that the judge harbors both personal and extrajudicial bias or prejudice against a
party or the party’s attorney. Id.
Respondent asserted that, in the federal action, the presiding judge questioned why Judge
Bowman would not follow the law and that the case was “settled by consent order.” On the
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contrary, the guardian ad litem filed documentation indicating that the federal lawsuit was
dismissed when respondent’s counsel failed to file a response to the defendant’s jurisdictional
challenge. According to the opinion issued by the chief judge, Judge Bowman indicated that he
had no recollection of the federal case and determined that he could remain impartial. The chief
judge concluded that respondent failed to overcome the heavy presumption of judicial
impartiality, and we cannot conclude that holding constituted an abuse of discretion. Meagher,
supra.
XI. Respondent’s Evidentiary Rules
Respondent next contends that the lower court erred in applying one set of evidentiary
rules to petitioner and a different set of rules for respondent. However, respondent has failed to
preserve this issue by citing specific instances with page references to the transcript. MCR
7.212(C)(6). Again, respondent has abandoned this issue. Woods, supra.
For purposes of completeness, our review of the record reveals an instance where
respondent sought to admit a report from his completion of anger management classes.
However, the report was not admitted over objection by counsel. However, it appears that the
objection was not premised on hearsay, but rather, on respondent’s failure to produce the author
of the report for cross-examination. MCR 3.973(E)(3). Therefore, we cannot conclude that the
family court imposed a different set of evidentiary rules upon respondent.
XII. Children’s Wishes
Respondent contends that the lower court erred in blocking proofs of the children’s desire
to see him until their mother advised them that he was not cooperating with services. This issue
is without merit. Review of the lower court record reveals that respondent called the children to
testify at the best interests hearing over the objection of the guardian ad litem. At that time, the
children expressly testified to their past feelings about respondent, their current feelings about
seeing respondent, and information provided by their mother. Additionally, two evaluators
addressed the issue of the children’s desire to see their father. The record does not support this
claim of error.
XIII. Termination of Parental Rights and Best Interests Determination
Finally, we note that respondent does not take issue with the trial court’s ultimate
decisions regarding termination and best interests. For purposes of completeness, we will
address the merits of the trial court’s decision. The family court’s decision to terminate
respondent’s parental rights was not clearly erroneous. JK, supra. The family court issued a
lengthy opinion and order concluding that respondent engaged in questionable tactics to
circumvent the process and failed to comply with the conditions of the parent-agency agreement.
We cannot conclude that those factual findings were clearly erroneous. Id. The family court’s
determination regarding the children’s best interests is also reviewed under the clearly erroneous
standard. In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005). Once a ground for
termination is established, the family court must order termination of parental rights unless the
court concludes that termination is clearly not in the children’s best interests. Id. We cannot
conclude that the family court’s determination with regard to the children’s best interests was
clearly erroneous in light of the limited public relationship respondent sought with his children.
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Affirmed.
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood
/s/ Alton T. Davis
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