In Re bauerle/evans Minors

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

UNPUBLISHED
In re BAUERLE/EVANS, Minors. April 21, 2022

No. 358331; 358550
Lenawee Circuit Court
Family Division
LC No. 19-000427-NA

Before: JANSEN, P.J., and SAWYER and RIORDAN, JJ.

PER CURIAM.

In these consolidated appeals, respondent, the mother of BVB and ABE: (1) appeals by
delayed leave granted1 the trial court’s March 1, 2021 order finding that it was contrary to the
welfare of BVB and ABE to be placed in respondent’s home; and (2) appeals as of right the initial
order of disposition following adjudication of the children. We affirm.

I. FACTS

At the time petitioner Department of Health and Human Services became involved with
respondent mother’s family, BVB was 12 years old, and ABE was seven years old. Petitioner
petitioned for temporary custody of BVB, ABE, and their older sister, CB, on the basis of
allegations including that respondent cut BVB’s hair as punishment, previously used a belt to
punish her children, and requested her two daughters, who she called “sociopaths,” be removed
from her care because the sight of them made her “sick.” In contrast, respondent considered her
son, ABE, an “angel.” The petition also noted that another, older daughter, DB, had previously
been removed from respondent’s care because of a report that respondent punched DB repeatedly
in the face and cut DB’s hair as punishment. Further, respondent’s mother, V. Hill, reported that
respondent tried to break down Hill’s door, where some of the children were staying.

1
We granted leave to appeal in Docket No. 358331 and consolidated the two appeals. In re
Bauerle/Evans Minors, unpublished order of the Court of Appeals, entered October 13, 2021
(Docket No. 358331).

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 The trial court authorized the petition and ordered the children removed from respondent’s
home. A trial on the issue of jurisdiction was significantly delayed because respondent wished to
exercise her right to trial by jury, and jury trials were suspended because of Covid-19. After about
10 months awaiting trial, respondent requested that the trial court reconsider the continued removal
of the children from respondent’s home. The trial court agreed to reconsider the issue, but ruled
that it was still contrary to the children’s welfare to be placed in respondent’s home. A jury trial
was eventually held, and the jury found, by a preponderance of the evidence, that there were
grounds for asserting jurisdiction over BVB and ABE.2

II. CONTINUED REMOVAL OF THE CHILDREN FROM RESPONDENT’S HOME

Respondent mother argues that the trial court erred by not returning her children to her
home in March 2021, pending trial. We disagree.

In the context of removal of children from their parent’s home, “[a] trial court’s factual
findings are reviewed for clear error. A finding is only clearly erroneous if an appellate court is
left with a definite and firm conviction that a mistake has been made. ” In re Benavides, 334 Mich
App 162, 167; 964 NW2d 108 (2020) (citations and quotation marks omitted). “We review the
interpretation and application of statutes and court rules de novo. Whether child protective
proceedings complied with a parent’s right to due process presents a question of constitutional
law, which we also review de novo.”3 In re Ferranti, 504 Mich 1, 14; 934 NW2d 610 (2019)
(citations omitted).

Respondent appeals the trial court’s March 1, 2021 order. This order was the third in a
series of three orders in which the trial court made renewed findings that it was contrary to the
children’s welfare to be in respondent’s home. Recognizing the seriousness of the children’s
prolonged pretrial removal from home, the trial court, at respondent’s request in October 2020,
undertook a reassessment of whether the children could be returned to respondent’s home. On
November 6, 2020, the trial court made new contrary-to-the-welfare findings, but indicated that it
would reassess the case in 30 days because respondent was to voluntarily undergo a mental health
evaluation. On December 16, 2020, the trial court again made a contrary-to-the-welfare finding,

2
CB had already reached 18 years of age.
3
Respondent mentions “due process rights” in the headings and question presented in her brief on
appeal, but makes no argument specifically with regard to due-process rights, and no argument
that proper procedures were not followed. See In re Sanborn, ___ Mich App ___, ___; ___ NW2d
___ (2021) (Docket No. 354915); slip op at 5 (“In Michigan, procedures to ensure due process to
a parent facing removal of his child from the home or termination of his parental rights are set
forth by statute, court rule, DH[H]S policies and procedures, and various federal laws . . . .”)
(citation and quotation marks omitted).
As such, it appears that any due-process argument collapses into her argument that it was
safe for the children to be returned to respondent. Any other intended due-process argument is
clearly abandoned. See Matter of Toler, 193 Mich App 474, 477; 484 NW2d 672 (1992) (“A party
may not merely announce his position and leave it to us to discover and rationalize the basis for
his claim.”).

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and noted that respondent’s mental health evaluation had not yet been made available to the parties
or the court, and respondent had unmet mental health needs. Finally, on March 1, 2021, the trial
court noted that respondent’s mental health evaluation had been received, but respondent had so
far only attended a single therapy session—which was insufficient to alleviate the risk to the
children—and the trial court again made a contrary-to-the-welfare finding.

Respondent generally argues that it was safe for the children to be returned to her in March
2021, without identifying specific rules which she believes the trial court violated. Removing a
child from his or her parent’s home is a grave decision which can have consequences for the rest
of the case. See In re Williams, 333 Mich App 172, 184-185; 958 NW2d 629 (2020). The children
were initially placed with a relative—Hill. As of March 1, 2021, CB had turned 18 years old, and
BVB and ABE had both been placed in a licensed foster home. BVB had been through several
placements by this time.

If the trial court orders placement of the child in foster care, it must make
explicit findings that “it is contrary to the welfare of the child to remain at home,”
MCR 3.965(C)(3), and “reasonable efforts to prevent the removal of the child have
been made or that reasonable efforts to prevent removal are not required,” MCR
3.965(C)(4). [In re Benavides, 334 Mich App at 168.4]

These findings must be made by a preponderance of the evidence. See In re Williams, 333
Mich App at 183-184 (applying preponderance of the evidence standard to contrary-to-welfare
findings).

Respondent’s argument essentially challenges the trial court’s finding that, as of March 1,
2021, it was contrary to ABE’s and BVB’s welfare to be placed back with respondent. Under
MCL 712A.13a(17), “[u]pon the motion of any party, the court shall review custody and placement

4
The trial court must make five findings to initially place a child in foster care:
(a) Custody of the child with the parent presents a substantial risk of harm to the
child’s life, physical health, or mental well-being.
(b) No provision of service or other arrangement except removal of the child is
reasonably available to adequately safeguard the child from risk as described in
subdivision (a).
(c) Continuing the child’s residence in the home is contrary to the child’s welfare.
(d) Consistent with the circumstances, reasonable efforts were made to prevent or
eliminate the need for removal of the child.
(e) Conditions of child custody away from the parent are adequate to safeguard the
child’s health and welfare. [MCL 712A.13a(9).]
Respondent does not challenge the initial removal of the children, or argue any of these
requirements specifically were not met, except insofar as she argues it would have been safe for
the children to be placed in her home in March 2021.

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orders and initial services plans pending trial and may modify those orders and plans as the court
considers under this section are in the juvenile’s best interests.”

The trial court did not clearly err by finding that it was contrary to ABE’s and BVB’s
welfare to be placed in respondent’s home as of March 1, 2021. There was evidence respondent
spent time with BVB unsupervised in violation of the parenting time orders in October 2020. On
November 6, 2020, the trial court found that respondent had outstanding unmet mental health
needs, and that “[s]ince removal, there have been additional evidence of instability, including
assaultive behavior, destruction of property and verbal assaults against the relative placement,
resulting in the request of the relative to have her grandchildren removed from her care.”
Respondent does not challenge this finding, or the subsequent finding that respondent repeatedly
violated a court order prohibiting her from “invading” Hill’s home.

At the March 1, 2021 pretrial hearing, there was testimony the foster parents caring for
ABE and BVB had recently requested that the children be removed from their home because,
among other things, respondent called law enforcement reporting ABE was being abused by
another child in the home. Respondent’s complaint was not substantiated by CPS. Respondent
had just started therapy and had attended a single visit in February 2021, after undergoing a mental
health evaluation in November 2020. A foster care supervisor testified that the November
evaluation strongly recommended respondent undergo therapy and medication management.

During the hearing, despite repeated guidance from the trial court, respondent focused on
petitioner’s failings rather than on respondent’s ability to safely care for the children. The trial
court noted that respondent took a long time to get her psychological evaluation taken care of,
which respondent attributed to Covid-19-related closings and delays. Respondent did not believe
that her behavior was irrational and believed that “[t]he only condition” she had was “being
nervous around people, really.” Respondent tried about six times to unmute herself on Zoom and
interrupt the trial court, which the trial court noted showed a lack of self-control even when dealing
with adults in public, suggesting an inability to safely parent her children.

At a March 1, 2021 hearing, there also was evidence the children wanted to return home to
respondent, and the main witness for petitioner had trouble answering some basic questions about
the children and their then-current placement. The trial court also acknowledged that some of
respondent’s concerns about the foster home raised valid points.

Overall, given the evidence respondent had only just started the “strongly recommended”
therapy, that she demonstrated a continuing lack of self-control in court, downplayed her
responsibility and issues in favor of attacking others in court, failed to follow court orders with
regard to time with the children and staying away from placements, and had repeatedly interfered
with the children’s placements since their removal, we are not definitely and firmly convinced that
the trial court erred by holding it would be contrary to the children’s welfare to be returned to
respondent’s home as of March 1, 2021. As such, respondent’s argument fails.

III. ADJUDICATION

The jury found, by a preponderance of the evidence, that BVB and ABE were each subject
to a substantial risk of harm to their mental well-being, providing a basis for jurisdiction under

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MCL 712A.2(b)(1).5 Respondent argues that insufficient evidence supported these findings, and
that the trial court should have directed a verdict against petitioner. We disagree.

A. STANDARD OF REVIEW

We review respondent’s sufficiency-of-the-evidence argument for clear error. See In re
Kellogg, 331 Mich App 249, 253; 952 NW2d 544 (2020). “To properly exercise jurisdiction, the
trial court must find that a statutory basis for jurisdiction exists . . . by a preponderance of the
evidence.” In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004) (citation omitted). This
Court reviews the “decision to exercise jurisdiction for clear error in light of the court’s findings
of fact.” Id. “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. “Statutory interpretation is a question of
law reviewed de novo on appeal.” In re Ramsey, 229 Mich App 310, 314; 581 NW2d 291 (1998).

Respondent did not raise her directed-verdict argument in the trial court, so our review is
for plain error. See In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014) (“In general, issues
that are raised, addressed, and decided by the trial court are preserved for appeal.”); In re Beers,
325 Mich App 653, 677; 926 NW2d 832 (2018) (“Generally speaking, in termination proceedings,
we review unpreserved claims under the plain-error rule.”). On plain-error review, a respondent
“must establish that (1) error occurred; (2) the error was ‘plain,’ i.e., clear or obvious; and (3) the
plain error affected . . . substantial rights.” In re Ferranti, 504 Mich at 29. “[A]n error affects
substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings.” In re
Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008). In addition, “the error must have seriously
affected the fairness, integrity or public reputation of judicial proceedings.” In re Ferranti, 504
Mich at 29 (cleaned up).

B. ANALYSIS

“While the adjudicative phase is only the first step in child protective proceedings, it is of
critical importance because ‘[t]he procedures used in adjudicative hearings protect the parents
from the risk of erroneous deprivation’ of their parental rights.” In re Sanders, 495 Mich 394,
405-406; 852 NW2d 524 (2014) (citation omitted). As relevant here, Michigan courts have:

(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found
within the county:

5
Additionally, the jury found that respondent’s home was unfit for BVB by reason of respondent’s
neglect, cruelty, drunkenness, criminality or depravity, providing a basis for jurisdiction under
MCL 712A.2(b)(2). However, establishment of only one ground is necessary for the assumption
of jurisdiction over a child. See In re Sanders, 495 Mich 394, 405; 852 NW2d 524 (2014) (“[T]he
petitioner has the burden of proving by a preponderance of the evidence one or more of the
statutory grounds for jurisdiction alleged in the petition[.]”). Given our conclusion about MCL
712A.2(b)(1), we therefore need not address this ground.

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 (1) Whose parent . . . when able to do so, neglects . . . to provide proper or necessary
support, education, medical, surgical, or other care necessary for his or her health
or morals, [or] who is subject to a substantial risk of harm to his or her mental well-
being . . . . [MCL 712A.2(b)(1).]

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). “The fact that there are statutory grounds to assume jurisdiction over one minor child
does not automatically mean that there are statutory grounds to assume jurisdiction over a second
minor child.” In re Kellogg, 331 Mich App at 254.

“Neglect” for the purposes of MCL 712A.2(b)(1) is defined as follows:

“Neglect” means harm to a child’s health or welfare by a person responsible
for the child’s health or welfare that occurs through negligent treatment, including
the failure to provide adequate food, clothing, shelter, or medical care, though
financially able to do so, or the failure to seek financial or other reasonable means
to provide adequate food, clothing, shelter, or medical care. [MCL 722.602(d).]

In keeping with this definition, “there must be a showing of harm in order for a court to
assume jurisdiction over a juvenile under the ‘neglects’ clause of MCL 712A.2(b)(1).” In re Smith,
507 Mich 905, 905 (2021). Evidence of such harm cannot be merely speculative, id., but may be
inferred from the circumstances in at least some instances. Id. at 905 n 1.6

Respondent argues that evidence of actual harm to the children was required in this case
under In re Smith, but this argument is mistaken because the statutory ground found to be supported
by the jury did not require such a showing. MCL 712A.2(b)(1) provides “a number of alternative
grounds for taking jurisdiction.” In re Baham, 331 Mich App 737, 746; 954 NW2d 529 (2020).
The MCL 712A.2(b)(1) ground presented to, and found to be supported by, the jury was that both
BVB and ABE were “subject to a substantial risk of harm to [their] mental well-being.” This
finding did not require a showing of “neglect” by respondent. Therefore, the harm requirement
for a finding of “neglect” discussed in In re Smith is not relevant. Instead, the jury’s verdict in this
case required a preponderance of the evidence to show that there was a substantial risk of harm to
each child’s mental well-being.

In In re Kellogg, 331 Mich App at 258 (citation and quotation marks omitted), we
cautioned: “[T]he fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been model parents .
. . .” (Citation and quotation marks omitted.) In that case, we held the facts that a parent had some

6
The Court noted that In re Nash, 165 Mich App 450; 419 NW2d 1 (1987), “did not involve
chronic absences without a showing of harm” because in that case “in addition to the children’s
absences from school, the respondent had no stable residence and one of the children was born
with symptoms of a drug overdose,” thus implying that the lack of stable residence could itself be
evidence of harm. In re Smith, 507 Mich at 905 n 1.

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mental health challenges, sometimes yelled and swore at a three-year-old child, and had some
difficulty managing the child were insufficient to support jurisdiction under MCL 712A.2(b)(1)
and (2).7 Id. at 256-258.

In this case, DB testified that respondent seriously physically and verbally abused her on
an ongoing basis, and cut DB’s hair as punishment on two occasions. Hill testified that respondent
frequently called respondent’s daughters derogatory names in a manner that appeared intended to
be hurtful, and testified that BVB was upset by her haircut and wanted Hill to call the police when
it happened. Hill also testified about an incident, apparently about seven months before the petition
was filed, in which BVB reported respondent shoved cake into BVB’s face. A CPS worker
testified that respondent called BVB a whore and a slut, appeared erratic when talking about her
daughters’ faults, and said that she wanted her daughters removed. The worker reported that
respondent said that the haircut was part of “a power struggle” with BVB.

Regarding the risk to the children’s mental well-being, a CPS worker testified that “the
kids” reported that they were concerned by respondent’s behavior and how she spoke to them, and
that “the children” told the worker respondent needed to address her mental health issues. BVB
testified that she spent nearly all her time outside school and organized activities with respondent
and ABE—suggesting that respondent’s actions would have a significant impact on BVB and
ABE. BVB testified that she hated when respondent went out without BVB, and BVB would
wonder where respondent was.

DB testified that respondent’s behavior toward DB severely impacted DB’s mental health.
CB’s reply to a question from respondent suggested that respondent displayed erratic behavior:

Q. Has your mother ever exhibited erratic behavior in public or even really
at home that didn’t—have I ever started yelling or been angry for no reason?

A. No, most of it could be rationalized.

The jury was entitled to believe all of this testimony, and was in the best position to weigh
the credibility of the various witnesses. Credibility was of particular importance in this case
because the children testified about respondent, their mother, in front of her and, except for ABE,
in response to questioning directly by her. Whether the children were influenced by their mother’s
presence or their desire to return home was an important factor regarding how much to credit their
testimony.

Respondent’s own testimony corroborated that she called her daughters “sociopaths,”
though she testified that this was playful. Respondent admitted calling CB and BVB “fake,” and
repeated on the stand that her children were spoiled and mean—it is unclear if this included ABE.

7
Specifically, the grounds at issue were “neglect[] to provide care necessary for the children’s
health or morals” under MCL 712A.2(b)(1), and unfitness of the home by reason of neglect and
depravity under MCL 712A.2(b)(2). In re Kellogg, 331 Mich App at 254. However, this Court
also referenced the “substantial risk of harm” prong of MCL 712A.2(b)(1), and appeared to hold
such a showing was required. Id. at 256-257.

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Respondent wanted her daughters to be threatened by a court and sent to “Campus” to make them
behave better. Respondent described herself as spoiling her children, having trouble disciplining
them, and giving them everything they wanted.

Respondent’s own testimony and questioning also at times suggested a fixation on the
wrongs or slights of others—especially Hill and DB—rather than on concern or care for her
children. Respondent at times appeared more concerned about her family’s reputation than her
daughter’s safety when testifying about DB’s sexual activities or questioning others about them.
Respondent repeatedly tried to question DB about whether she offered “sexual favors” on the
internet. Respondent’s own testimony and conduct could be interpreted as suggesting callousness
toward her children, which the jury could have inferred increased the likelihood she treated them
cruelly behind closed doors. Respondent also admitted that she might have been acting more
irrationally, and might have been more short-tempered and frustrated than usual, near the time the
petition was filed because of her hand surgery and the effect of her antidepressants.

The jury was entitled to believe all of this evidence and to disbelieve testimony to the
contrary. The jury was also entitled to use respondent’s treatment of her older children as evidence
of how she was treating, or was likely to treat, her younger children. In re BZ, 264 Mich App at
296 (approving application of anticipatory neglect inference at the jurisdictional stage). Under the
doctrine of anticipatory neglect, “[h]ow a parent treats one child is certainly probative of how that
parent may treat other children.” In re LaFlure, 48 Mich App 377, 392; 210 NW2d 482 (1973).
See also Matter of Jackson, 199 Mich App 22, 24, 26; 501 NW2d 182 (1993) (holding that “the
court properly weighed respondent’s treatment of her oldest son in considering whether to
terminate her parental rights” to her other children, when the respondent previously lost her rights
to her oldest son because of abuse and neglect).

We acknowledge that there was no evidence respondent was physically harming the
children at the time of the petition. While MCL 712A.2(b)(2) requires only a substantial risk of
harm to mental well-being, rather than harm itself, we also acknowledge that there was little
evidence directly aimed at showing respondent’s behavior was creating a substantial risk of
harm—for example, no mental health experts testified. The children at issue both testified they
wanted to be at home rather than in foster care. Nonetheless, the jury was entitled to make
inferences about the risk to the children’s mental health on the basis of the trial testimony and the
jury’s observations of the witnesses.

Overall, especially given the deference owed to the jury’s role in assessing witness
credibility, In re BZ, 264 Mich App at 296-297, we are not definitely and firmly convinced the
jury erred in finding by a preponderance of the evidence there was a substantial risk to both BVB’s
and ABE’s mental well-being. If the jury credited all the evidence against respondent, there was
a severe history of physical and emotional abuse by respondent with regard to DB. The jury could
have believed respondent was behaving erratically around BVB and ABE, simultaneously spoiling
them, while also calling BVB and her older siblings derogatory names, at times punishing her older
children harshly, and expressing outright animosity toward the older children. While there was
testimony respondent considered ABE an “angel” and “perfect,” the jury could have concluded
such sentiments would not protect ABE, and might even have been an ominous sign, given the
evidence of close but fraught relationships between respondent and her other children.

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 In addition to allowing credibility assessments, observing the witnesses gave the jury some
basis for judging the impact of respondent’s behavior on the children, including ABE, and for
judging whether respondent’s behavior crossed a line from merely unusual and imperfect parenting
to behavior creating a substantial risk to the children’s mental well-being. In this case, the jury
was given a first-hand look at the dynamic between respondent and several of her children, because
respondent herself questioned BVB, DB, and CB in court.

Given the jury’s opportunity to observe the witnesses and family dynamics in this case, we
are not definitely and firmly convinced that the jury made a mistake in finding by a preponderance
of the evidence there was a substantial risk of harm to both BVB and ABE’s mental well-being.
As such, the trial court did not clearly err in asserting jurisdiction over the minor children on the
basis of MCL 712A.2(b)(1).

Respondent also argues that there was a failure by the trial court, or respondent’s attorney
advisor, to advise respondent to seek a directed verdict. Respondent chose to represent herself.
Respondent does not argue that her waiver of her right to counsel was inadequate, and does not
attempt to argue that she was denied effective assistance of counsel. Respondent also provides no
support for her argument that the trial court should have sua sponte suggested a directed verdict.
MCR 2.516, the rule cited by respondent, only provides parties the right to move for a directed
verdict—it does not place any burden on the trial court to suggest a directed verdict. Moreover,
denying a motion for a directed verdict is not an error when the evidence would be sufficient to
support a contrary verdict. See Matter of Harmon, 140 Mich App 479, 483; 364 NW2d 354 (1985).
Respondent has failed to demonstrate any error, let alone plain error, with regard to the failure to
grant an unrequested directed verdict.

IV. CONCLUSION

The trial court did not err by finding that it was contrary to the welfare of BVB and ABE
to be placed in respondent’s home or by exercising jurisdiction over the children consistent with
the jury’s verdict. We affirm.

/s/ Kathleen Jansen
/s/ David H. Sawyer
/s/ Michael J. Riordan

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