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UNPUBLISHED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 NIERMAN, Minors. November 17, 2022
No. 361519
Otsego Circuit Court
Family Division
LC No. 22-000110-NA
Before: HOOD, P.J., and JANSEN and K. F. KELLY, JJ.
PER CURIAM.
Respondent-mother appeals by right the trial court’s order of custody removing her two
minor children, ERN and ESN. Finding no errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
In May 2022, the Department of Health and Human Services (the “Department”) filed a
petition alleging that on April 25, 2022, law enforcement responded to a noise complaint at
respondent’s apartment and found the children’s father unconscious in the bathroom. He was later
pronounced dead as a result of a drug overdose. Respondent was also at the apartment and
appeared intoxicated. Respondent was drug-tested at her residence and tested positive for multiple
illegal substances. ERN and ESN were in the apartment at the time and stayed with a relative
afterwards. The petition also alleged that when ERN and ESN were born, they tested positive for
illegal substances and were removed from respondent’s care in 2018 because of her substance
abuse issues. An amended petition subsequently filed, which included allegations that respondent
tested positive for fentanyl the day the first petition was filed. The amended petition requested
that the trial court take jurisdiction over ERN and ESN on the basis of allegations of improper
supervision and requested that the children be removed from respondent’s care. The trial court
subsequently issued an ex parte order removing the children and placing them with the
Department.
At a preliminary hearing, Children’s Protective Services caseworker Michelle Hagerman
testified regarding the allegations in the petition. Hagerman testified that the Department and
respondent agreed that the Department would file a petition for in-home jurisdiction and allow the
children to remain with respondent on the condition she did not test positive for substances.
However, after respondent tested positive for fentanyl a second time, the Department filed the
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petition requesting removal. In addition, Hagerman testified that respondent repeatedly refused to
agree to a safety plan, disputed the results of her drug tests, and refused to attend substance abuse
treatment. Respondent also came to Hagerman’s office the day before the preliminary hearing
extremely angry and was “swearing, throwing things, [and] slamming doors” in front of the
children. Because respondent had not had a chance to consult with her attorney, the trial court
adjourned the preliminary hearing and did not authorize the petition, but did issue an order
removing the children from respondent’s care and custody and placing them with the Department.
This appeal followed.
II. STANDARD OF REVIEW
A trial court’s findings of facts are reviewed for clear error. In re Benavides, 334 Mich
App 162, 167; 964 NW2d 108 (2020). A finding is clearly erroneous if the reviewing court “is
left with a definite and firm conviction that a mistake has been made.” Id. (quotation marks and
citation omitted). The trial court’s proper interpretation and application of statutes and court rules
is reviewed de novo. In re Williams, 333 Mich App 172, 178; 958 NW2d 629 (2020).
III. DISCUSSION
Respondent argues that the trial court clearly erred when it removed the children from
respondent’s care because it relied on improper and inadmissible testimony. We disagree.
“At the preliminary hearing, the court must decide whether to authorize the filing of the
petition and, if authorized, whether the child should remain in the home, be returned home, or be
placed in foster care pending trial.” Benavides, 334 Mich App at 167 (quotation marks and citation
omitted). Under MCL 712A.13a(9), a trial court may remove a child from a parent’s care if it
finds that all of the following conditions have been satisfied:
(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.
“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).” Benavides, 334 Mich App at 168.
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In cursory fashion, respondent argues that the trial court failed to make the statutorily
required factual findings to remove the children from respondent’s care because it relied on hearsay
testimony from a witness who “lacked personal knowledge” of the events at issue. To the extent
respondent challenges to the sufficiency of the trial court’s factual findings, it is unsupported by
argument or citation to relevant authority. See In re Warshefski, 331 Mich App 83, 87; 951 NW2d
90 (2020) (“An appellant may not merely announce his position and leave it to this Court to
discover and rationalize the basis for his claims, nor may he give issues cursory treatment with
little or no citation of supporting authority.”) (quotation marks and citation omitted).
On the merits, respondent’s claims fail because the trial court made the requisite factual
findings prior to removal and there was sufficient evidence to support those findings. The evidence
demonstrated that respondent used illegal substances since at least 2017, used substances in front
of her children, tested positive on multiple occasions for illegal substances, refused to engage in
substance abuse services, refused to sign a safety plan for the children, and refused to take drug
screens. Therefore, the evidence presented demonstrated that the children were at risk of
substantial harm in respondent’s custody, no other services except removal would adequately
safeguard the children, and remaining in respondent’s home was contrary to their welfare. See
MCL 712A.13a(9)(a)–(c). In addition, the Department made reasonable efforts to prevent the
removal of the children through the provision of services, including random drug tests, safety
planning, meetings, Department assistance, counseling referrals, the Women’s Resource Center,
health services, the Family Support Program, the Family Reunification Program, psychological
evaluation assessment, infant mental health assessment, Early On, and parenting education classes.
Regarding respondent’s argument that the caseworker’s testimony was inadmissible
hearsay, this argument is unpersuasive. A trial court’s findings at a preliminary hearing “may be
made on the basis of hearsay evidence that possesses adequate indicia of trustworthiness.” MCR
3.965(C)(3). Respondent’s additional argument that Hagerman did not have personal knowledge
of the events at issue is not supported by the record. Hagerman’s testimony was based on her
review of respondent’s drug-screen reports, conversations with law enforcement, and
conversations with respondent.
The trial court removed the children from respondent’s care concluding that respondent
presented a substantial risk of harm to the children, no other services except removal would
adequately safeguard the children, it was contrary to the welfare of the children to remain in
respondent’s care, reasonable efforts had been made, and conditions of custody at their placement
were adequate to safeguard the children’s health and welfare. The trial court’s findings were
supported by the record and satisfied the requirements of MCL 712A.13a(9) and MCR 3.965(C).
Affirmed.
/s/ Noah P. Hood
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
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