Preview:

STATE OF MICHIGAN
COURT OF APPEALS

In the Matter of CRAIG EMBREE, Minor.

DEPARTMENT OF HUMAN SERVICES, f/k/a/ FAMILY INDEPENDENCE AGENCY, Petitioner-Appellee, V SANDRA MANN, Respondent-Appellant, and CRAIG EMBREE, SR. and CLAUDE GODDARD, Respondents.

UNPUBLISHED January 19, 2006

No. 263795 Kent Circuit Court Family Division LC No. 04-057037-NA

In the Matter of AMBER EMBREE, Minor.

DEPARTMENT OF HUMAN SERVICES, f/k/a/ FAMILY INDEPENDENCE AGENCY, Petitioner-Appellee, V SANDRA MANN, Respondent-Appellant, and CRAIG EMBREE, SR. and CLAUDE GODDARD, Respondents. No. 263796 Kent Circuit Court Family Division LC No. 04-057185-NA

-1-


In the Matter of CLAUDIA GODDARD, Minor.

DEPARTMENT OF HUMAN SERVICES, f/k/a/ FAMILY INDEPENDENCE AGENCY, Petitioner-Appellee, V SANDRA MANN, Respondent-Appellant, and CRAIG EMBREE, SR. and CLAUDE GODDARD, Respondents. No. 263797 Kent Circuit Court Family Division LC No. 04-057186-NA

Before: Zahra, P.J., and Murphy and Neff, JJ. PER CURIAM. Respondent Sandra Mann appeals as of right from an order in which the trial court found that the allegations set forth in the petition filed by Child Protective Services (CPS) had been established by a preponderance of the evidence, and ordered that Mann's three minor children be made temporary wards of the court and placed in licensed foster care. We affirm. In its petition, CPS alleged respondent failed to follow through with the medical needs of Claudia, who contracted a serious infection following a hamster bite on her hand, and that Mann had a long history of substance abuse. At the September 21, 2004, preliminary examination, the referee found probable cause existed that the allegations in the petition were true, and placed the minors in protective custody pending the outcome of the adjudication proceedings. The adjudication proceedings commenced on November 17, 2004, and concluded on May 31, 2005, at which point the trial court found the allegations in the petition were true by a preponderance of the evidence. Respondent first claims her procedural due process rights were violated when the trial court adjourned the adjudication proceedings on three separate occasions between November 7, 2004, and May 31, 2005, and argues the trial court should have dismissed the proceedings on these grounds. This Court reviews a trial court's decision on a motion to dismiss for abuse of discretion. In re Contempt of Tanksley, 243 Mich App 123, 127; 621 NW2d 229 (2000). "An abuse of discretion is found in cases in which the result is so violative of fact and logic that it -2-


evidences a perversity of will, a defiance of judgment, or an exercise of passion or bias." Id. Interpretation and application of statutes and court rules are questions of law this Court reviews de novo. Id. Due process violations are reviewed de novo. In re CR, 250 Mich App 185, 203; 646 NW2d 506 (2002). MCR 3.923(G) indicates adjournments of trials and hearings in child protective proceedings may be granted only (1) for good cause, (2) after taking into consideration the best interests of the child, and (3) for as short a period of time as necessary. MCL 712A.17(1) states: The court shall adjourn a hearing or grant a continuance . . . only for good cause with factual findings on the record and not solely upon stipulation of counsel or for the convenience of a party. In addition to a factual finding of good cause, the court shall not adjourn the hearing or grant a continuance unless 1 of the following is also true: **** (b) The court grants the adjournment or continuance upon its own motion after taking into consideration the child's best interests. An adjournment or continuance granted under this subdivision shall not last more than 28 days unless the court states on the record the specific reasons why a longer adjournment or continuance is necessary. Respondent contends the requirements set forth in MCR 3.972, requiring children be released to the custody of their parents or guardians if the adjudication does not commence within sixty-three days after the children's placement in CPS custody, should also apply to MCL 712A.17(1). However, MCR 3.972 only applies when the trial court fails to commence the adjudication proceedings within sixty-three days after placing the minors in protective custody; in the present case, the hearing commenced within the sixty-three day time period. Neither MCL 712A.17(1) nor MCR 3.923(G) require that the children be released to respondent's custody if the court fails to reconvene the adjudication proceedings over twenty-eight days after adjournment without stating on the record the specific reasons why a longer adjournment or continuance is necessary. In People v Smith, 200 Mich App 237, 242; 504 NW2d 21 (1993), this Court quoted from 3 Sutherland, Statutory Construction (5th ed),

Download IN RE AMBER EMBREE MINOR.pdf

Michigan Law