Hotchkiss v. Moore

1

FRANCES HOTCHKISS and TIMOTHY HOTCHKISS, Plaintiffs-Appellees, v. DIONTE MOORE, Defendant-Appellant.

No. 362370

Court of Appeals of Michigan

April 13, 2023

UNPUBLISHED

Wayne Circuit Court LC No. 21-110135-DC

Before: Cavanagh, P.J., and Boonstra and Riordan, JJ.

Per Curiam.

Defendant appeals by right the judgment entered by the circuit court granting sole legal and physical custody of the minor child DM, to plaintiffs Frances Hotchkiss (Frances) and Timothy Hotchkiss (Timothy) (collectively, plaintiffs), the child's maternal grandparents. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

In 2014, Erin Hotchkiss (Erin) and defendant began a romantic relationship. At that time, Erin had a daughter, EH, from a previous relationship. In 2015, Erin became pregnant with DM. After DM was born in 2016, defendant signed an acknowledgment of parentage. Also in 2016, Erin sued for custody of DM. In 2017, the circuit court entered a judgment granting Erin sole physical custody of DM and granting Erin and defendant joint legal custody. Defendant was ordered to pay child support and was not permitted to have overnight parenting time.

In 2017, defendant began living with his mother and brother in Dearborn Heights. In the Spring of 2017, while visiting defendant's home with Erin, EH observed defendant snort white powder through a straw. EH subsequently told Frances that she was afraid of defendant. At some point in 2017 Frances moved for and obtained a guardianship over EH. EH moved into plaintiffs' home, but continued to visit Erin's home, where DM lived.

In May 2019, defendant moved for "regular unsupervised parenting time" with DM, and the matter proceeded to a hearing before a referee. During the hearing, Erin presented evidence that she had obtained a personal protection order against defendant in June 2019, and that defendant had recently been charged with domestic violence and "tampering with a police investigation." The referee found there was an extensive history of domestic violence and that the evidence presented by defendant to support his claim that he had completed domestic violence services was not credible. The referee questioned defendant's credibility and ability to provide DM with a stable, safe environment.

Defendant's parenting time was ultimately suspended. Erin became ill in 2019 and moved into plaintiffs' home with DM; she was ultimately diagnosed with breast cancer. Also in 2019, defendant was ordered to complete a 52-week "batterers intervention program. . . ." as the result of a Children's Protective Services (CPS) investigation. Additionally, in August 2019, defendant moved to revoke his acknowledgment of paternity and for genetic testing regarding DM, alleging that Erin had been unfaithful during their relationship and that DM was not his child. Defendant's paternity was never revoked.

On January 31, 2020, the circuit court ordered that defendant have supervised parenting time with DM for two hours every Saturday. Frances supervised the visits, and she noted that defendant often failed to attend the visits or left early. After the start of the COVID-19 pandemic, defendant was permitted to have supervised visitation with DM in his home. In August 2021, Erin signed an advance directive stating that she wanted DM to remain in plaintiffs' care after her death.

Erin died on August 30, 2021. Defendant did not have visitation with DM through the month of September 2021, although he requested one visitation on September 25, which Frances denied due to already having plans.

In October 2021, plaintiffs petitioned the probate court for, and were granted, temporary guardianship over DM, which would expire on December 2, 2021. Thereafter, plaintiffs filed an emergency complaint for custody in the circuit court. The custody matter was later transferred to the probate court; the circuit court stayed any further proceedings pending the resolution of the probate court matter. Plaintiffs alleged that DM had resided with them for several years, and that defendant was not fit to properly care for DM because of his history of substance abuse, domestic violence, and CPS investigations. Defendant opposed the petition and requested that he be granted sole custody of DM.

In October 2021, defendant began having supervised parenting time visits with DM for one hour, once each week. Elizabeth Bernand, a guardianship specialist from Orchards Children's Services, supervised the visits. Bernand noted that DM seemed unfamiliar with defendant in the beginning. In November 2021, Bernand conducted a guardianship assessment. Bernand ultimately recommended that plaintiffs be granted a full guardianship of DM. She further recommended that defendant be granted parenting time in the community on the weekends.

In May 2022, the custody hearing in the probate court commenced. The parties disputed defendant's level of involvement in DM's life and whether domestic violence had occurred between Erin and defendant. EH and two other witnesses testified at the custody hearing that they had observed defendant physically assault Erin by pushing his forearm against her throat, stomping on her foot, and biting her lip. EH and the other witnesses suspected that defendant had been abusing alcohol and illegal substances. The two other witnesses testified that, after the assault, defendant threatened several times to kill Erin and DM. EH testified that defendant came to Erin's home at the beginning of 2019 and accused Erin of cheating on him. EH further testified that defendant claimed that DM was not his child; DM was in the room at the time. EH believed that defendant had been drinking. Defendant left after EH threatened to call the police. EH testified to two other altercations between defendant and Erin at her home in 2019. In one altercation, defendant hit Erin with his hands while she was lying on the floor; DM was present in the room at the time. In the other altercation, defendant held a knife to Erin's throat, and left when EH threatened him with her own knife. EH believed that defendant was also intoxicated during both of these altercations.

At the close of the proofs, the probate court took the matter under advisement; it subsequently issued a written opinion outlining the procedural history of the case and the relevant authority concerning a custody dispute between third parties and a biological parent. The probate court discussed the best-interest factors contained in MCL 722.23 and noted that the relevant standard was clear and convincing evidence. The probate court found that eleven of the factors weighed in favor of plaintiffs. It held that DM had an established custodial environment with plaintiffs. It further held that the presumption of parental fitness contained in MCL 722.25(1) had been rebutted by clear and convincing evidence and that custody with defendant was not in DM's best interests. The probate court also held that defendant was entitled to "reasonable parenting time" and ordered that the January 2020 order of the circuit court granting defendant supervised parenting time would remain in effect "until such time as this issue can be addressed by separate motion of the parties."

The circuit court entered a judgment consistent with the probate court's opinion.^[1] The judgment granted sole physical and legal custody of DM to plaintiffs, adopted the January 2020 parenting time order by reference, and stated that defendant "shall be entitled to reasonable parenting time upon the hearing on a motion regarding the same." This appeal followed.

II. CUSTODY DETERMINATION

Defendant argues that the probate court erred by failing to consider whether proper cause or a change of circumstances existed before changing DM's custody, and that it abused its discretion by awarding plaintiffs sole physical and legal custody. While the existing record does not reflect that the probate court explicitly considered proper cause or change of circumstances, any error was harmless. Further, the probate court did not abuse its discretion by awarding plaintiffs sole physical and legal custody of DM.

In custody cases, we apply three standards of review. Merecki v Merecki, 336 Mich.App. 639, 644; 971 N.W.2d 659 (2021).

The great weight of the evidence standard applies to all findings of fact. In a child custody dispute, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue. Specifically, [this Court] review[s] under the great-weight-of-the-evidence standard the trial court's determination whether a party demonstrated proper cause or a change of circumstances. A finding of fact is against the great weight of the evidence if the evidence clearly preponderates in the opposite direction. An abuse of discretion standard applies to the trial court's discretionary rulings such as custody decisions. An abuse of discretion, for purposes of a child custody determination, exists when the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias. Questions of law are reviewed for clear legal error. A trial court commits legal error when it incorrectly chooses, interprets or applies the law. [Id. at 644-645 (quotation marks and citations omitted).]

We defer to trial courts concerning issues of credibility. Berger v Berger, 277 Mich.App. 700, 705; 747 N.W.2d 336 (2008).

The Child Custody Act, MCL 722.21 et seq. (CCA) "governs custody, parenting time, and child support issues for minor children in Michigan, and it is the exclusive means of pursuing child custody...