IN RE WEST/KINNEY MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In re WEST/KINNEY Minors
ALEXANDRIA WEST and TRACIE KINNEY,
UNPUBLISHED
February 4, 2010
Appellees,
and
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 293269
Mackinac Circuit Court
Family Division
LC No. 2009-005972-NA
TRENT VINCENT,
Respondent-Appellant.
Before: Talbot, P.J., and Whitbeck and Owens, JJ.
PER CURIAM.
Non-parent respondent Trent Vincent appeals by right from the trial court order granting
temporary custody of the two minor children to the Department of Human Services (DHS) for
care and supervision, with living arrangements at the home of the children’s natural father. The
trial court further granted supervised parenting time with the children’s mother and denied
Vincent any contact with either of the minor children until ordered by the court. We affirm.
I. Basic Facts And Procedural History
According to the minor children’s grandmother, in April 2009, she made arrangements
with the children’s mother to pick them up and take them home with her for an extended visit.
Upon seeing the children, the grandmother noticed that the younger of the two girls was thinner
looking, that she had a slightly unusual disposition, and that she was somewhat clingy.
During dinner later that evening, the grandmother noticed that the younger child had
bruising on her face that resembled a handprint. The grandmother then also noticed other marks
on the younger child’s face, including a red mark by her ear and a mark on her neck. The
children’s grandfather corroborated the grandmother’s observations. The grandfather indicated
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that the younger child had noticeable bruising, had lost weight, and was dirty. After discussing
the bruising with other family members, the decision was made to take the child to the doctor the
following morning.
Later that evening, during bath time, the grandmother also saw that the younger child had
considerable bruising on her butt and genital area. The older child said that her sister had “booboos” from when Vincent spanked her. After seeing this additional bruising, the grandparents
took the younger child to the emergency room that same evening. The emergency room doctor
indicated that he saw multiple stages of bruising on greater than 70 percent of the child’s
buttocks. The child also had bruising in her vaginal area. Based on his examination, the doctor
concluded that the injuries were not the result of an accident, but instead opined that the injuries
were the result of a battery. A police officer was called to the hospital that evening to take
pictures of the child and to investigate suspected child abuse.
After the situation was investigated, DHS filed a petition with the trial court, requesting
that the court take jurisdiction over the minor children under MCL 712A.2. And after hearing all
evidence, the jury found that one or more of the statutory grounds alleged in the petition
concerning the minor children had been proven. Vincent now appeals.
II. Child-Protective Proceedings Petition
A. Standard Of Review
Vincent argues that the trial court erred in allowing the jury to be instructed regarding
specific provisions of the juvenile code1 and on “allegations” that were not included in the
original petition. Vincent contends that the petition filed in this case only made specific
allegations of physical trauma inflicted by himself and did not allege that the children’s mother
neglected or failed to protect her children. Therefore, he argues, the trial court should not have
instructed the jury on MCL 712A.2(b)(1) relating to parental failure to protect and support.
Whether proper procedure was followed in a child-protective proceeding is a question of law that
this Court reviews de novo.2 This Court also reviews de novo issues of statutory interpretation.3
B. MCL 712A.2(b)(1)
A request for court action to protect a child must be in the form of a petition.4 The
petition must contain information about the minor children, as well as the essential facts that
1
MCL 712A.1 et seq.
2
In re CR, 250 Mich App 185, 200; 646 NW2d 506 (2001).
3
In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008).
4
MCR 3.961(A).
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constitute an offense against the child under the juvenile code.5 The petition must include a
citation to the section of the juvenile code relied on for jurisdiction.6
MCL 712A.2(b) provides the family division of the circuit court with jurisdiction over a
juvenile younger than 18 years of age in certain circumstances. The two circumstances in
question here are: (1) when a parent neglects or refuses to provide proper or necessary support
or care for the child;7 and (2) when a child is living in a home that is unfit based on the neglect or
cruelty of a parent, guardian, or non-parent adult.8
As stated, Vincent contends that the petition allegations did not contain language that the
children’s mother failed to protect them, and therefore this question should not have been posed
to the jury and the jury should not have been instructed with MCL 712A.2(b)(1). However,
contrary to Vincent’s assertion, the petition does indicate such allegations. Specifically, the
petition alleged that: (1) the older child indicated that both she and her younger sister were
spanked “on different dates, at different times and at multiple locations” when Vincent was
angry; (2) the older child indicated that her mother was present when Vincent inflicted the
injuries; and (3) a doctor who had examined the younger child indicated that he found “different
stages of bruising.” It is reasonable to read these allegations as indicating that the children’s
mother was aware of the multiple spankings. Indeed, the mother told the children’s grandmother
that the younger child’s increased bruising was the result of an “increase in falling.” And the
mother’s admonition to Vincent “not to do this any more” was both ineffective and evidenced a
serious lack of adequate protection.
Additionally, the petition specifically stated that remaining in the home was contrary to
the welfare of the minor children for the following reasons:
Due to the severe physical abuse of [the younger child] by mother’s boyfriend,
[Vincent], and the failure to protect by [the mother], it is contrary to the
children’s welfare to remain in her home. The Department of Human Services
requests that removal from the mother’s home be granted at this time. It is the
Department’s recommendation the children remain in the physical custody of
their father[.][9]
That this specific language is not set forth on the “Allegations” page is not dispositive. MCR
3.902, which relates to proceedings involving juveniles, indicates that “the rules are to be
construed to secure fairness, flexibility, and simplicity. The court shall proceed in a manner that
safeguards the rights and proper interests of the parties.” Further, the rules must be interpreted
5
MCR 3.961(B)(1), (3).
6
MCR 3.961(B)(4).
7
MCL 712A.2(b)(1).
8
MCL 712A.2(b)(2).
9
Emphasis added.
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and applied to ensure that each minor coming within the jurisdiction of the court receives the
care, guidance, and control, preferably in the minor’s own home, that is conducive to the minor’s
welfare and the best interests of the public.10 To construe MCR 3.961(B)(3) and (4) to require
that a direct statement on the failure to protect such as quoted above must be included on the
“Allegations” page of a petition would not comport with fairness, flexibility, and simplicity as
required by MCR 3.902.
We conclude that the statements made under the “Allegations” section of the preprinted
petition form, as well as those statements found elsewhere in the three-page document, outlined
“the essential facts that constitute an offense against the child under the Juvenile Code” as
required by MCR 3.961(B)(3).
C. Reference To Specific Juvenile Code Section
Vincent also contends that DHS erred in failing to include the specific statutory
subsection of MCL 712A.2 in the petition. MCR 3.961(B)(4) requires a petition to contain
reference to the section of the juvenile code, but it does not require the specific subsection to be
listed.11 Listing only MCL 712A.2, without further elaboration of the subsection, is consistent
with “secur[ing] fairness, flexibility, and simplicity.”
Moreover, the petition as a whole implicates both subsections of the statute. Here, the
trial court did not obtain jurisdiction until the jury determined by a preponderance of the
evidence that the allegations in the petition established that the minor children came within the
statutory requirements of MCL 712A.2(b).12 The jury could have found that the trial court had
jurisdiction based on any one of the statutory subsections of MCL 712A.2, and there was no need
for elaboration on which of these statutory subsections was proven.13 The jury has the unique
opportunity to observe the witnesses to determine the credibility and weight to be given to trial
testimony.14
III. Due Process
A. Standard Of Review
Vincent argues that the trial court’s submission of the case to the jury on grounds other
than those included in the original petition violated Vincent’s due process rights and fundamental
10
MCR 3.902(B).
11
See MCR 3.902(B).
12
See In re Brock, 442 Mich 101, 108-109; 499 NW2d 752 (1993).
13
See MCR 3.972(E).
14
Moore v Detroit Entertainment LLC, 279 Mich App 195, 202; 755 NW2d 686 (2008).
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liberty interests. We disagree. Whether a child protective proceeding complied with a Vincent’s
right to due process is a constitutional issue that this Court reviews de novo.15
B. Analysis
Vincent contends that he was denied his right to present evidence and prepare his case in
a meaningful way. To comport with procedural due process, a respondent must be given notice
and the opportunity to be heard.16 Although the petition did not state the specific subsection that
it was being brought under, the language in the petition provided Vincent with sufficient notice
that the DHS was seeking court jurisdiction based on (1) severe physical abuse and (2) the failure
to protect. Also, the petition allegations stated that Vincent harmed the younger child when he
was angry and that the children’s mother was present when this occurred. Based on the totality
of the information in the petition, Vincent had notice that court jurisdiction was being requested
under MCL 712A.2(b) and information that the proofs at trial would involve both abuse and
failure to protect allegations. Furthermore, the transcript of the jury trial clearly indicates that
Vincent was given the opportunity to be heard. To the extent that Vincent asserts that the
children’s mother was denied her due process rights, he does not have standing to raise this issue
on her behalf.17
Finally, while parents have a fundamental liberty interest in the companionship, care,
custody, and management of their children,18 Vincent is not a natural parent, or a parent in any
respect, to either of the minor children, and therefore he does not have a fundamental liberty in
relation to these children.
Affirmed.
/s/ Michael J. Talbot
/s/ William C. Whitbeck
/s/ Donald S. Owens
15
In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009).
16
Id. at 92.
17
See In re Terry, 240 Mich App 14, 21; 610 NW2d 563 (2000).
18
In re B & J, Minors, 279 Mich App 12, 23; 756 NW2d 234 (2008).
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