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Howard v. Howard

Court of Appeals of Michigan

May 19, 2015

TYRONNA HOWARD (Deceased), Plaintiff,
MARK HOWARD, Defendant-Appellant. and ANTONIO BLACKBURN, Appellee,

Wayne Circuit Court Family Division LC No. 06-607496-DM

Before: Talbot, C.J., and Cavanagh and Meter, JJ.

Per Curiam

Defendant appeals as of right an order granting custody of his minor children to his deceased ex-wife's brother, Antonio Blackburn. We affirm.

Defendant and Tyronna Howard divorced on November 13, 2006. They had three children, but only two minors are at issue here. The judgment of divorce granted Tyronna and defendant joint legal custody, but Tyronna primary physical custody of the children with extensive parenting time to defendant. Tyronna fell ill and passed away on August 31, 2013. Prior to her death, around April 2013, Tyronna and her children moved in with Blackburn.

On September 24, 2013, defendant filed an emergency ex parte motion to enforce the judgment of divorce and return the children to him. Defendant alleged that he attempted to bring his children home after Tyronna's death, but Blackburn refused to return them. The trial court set the matter for an expedited hearing on defendant's motion, ordered defendant to serve Blackburn, and ordered Blackburn to appear.

On October 1, 2013, Blackburn responded to defendant's motion, indicating that defendant suffered from brain tumors and multiple sclerosis, and lived in a one-bedroom apartment in an assisted living facility. Consequently, when she fell ill, Tyronna entrusted the care and custody of her children with her brother, Blackburn. Blackburn alleged that on September 18, 2013, he filed petitions for guardianship and conservatorship over each of the children, and he requested that the trial court "maintain the status quo and allow the minor children to remain with [Blackburn] until the probate court makes a decision on [the] petitions."[1]

On October 4, 2013, the trial court held a hearing on defendant's motion. At the hearing, the trial court learned that defendant's sister, LaDawne Malone, had power of attorney for defendant, and she admitted that she "requested the ex parte motion." At that hearing, Malone stated that defendant "wants his custodial rights restored and the children returned to his house." When the trial court questioned Malone as to why defendant was not addressing the court himself, Malone indicated "he can't cognitively speak. He has multiple sclerosis. He is not deemed unfit. He is deemed disabled which there's a big difference." At that hearing, the trial court placed defendant under oath and asked him if he wanted his children to live with him. Defendant stated, "I want my children. I really do. I love my children. I do." However, when the trial court asked defendant if he was living in a one-bedroom assisted living facility, he could not answer, but instead, looked to Malone for help. Malone requested that the trial court adjourn the matter until she could retain an attorney, and the matter was adjourned.

After defendant retained an attorney, the trial court appointed a guardian ad litem for the children. Michelle Mack, the GAL, eventually gave her findings on the record, and both Blackburn's and defendant's counsels questioned Mack, but she was not sworn in as a witness. Mack interviewed each of the children alone, observed them at home and at school, and observed them visiting with defendant. Mack explained that the children love defendant, but they do not want to live with him as they felt that, due to defendant's medical conditions, they would be taking care of defendant rather than defendant taking care of them. When Mack questioned defendant, he was unable to tell her where the children went to school or where they lived. When Mack asked defendant how he would care for the children, he told her that the children "were big, [and] they could take care of themselves."

Defendant's counsel repeatedly argued that it was inappropriate for Blackburn to participate in the proceedings at all because Blackburn did not have standing in the matter. While the trial court agreed that Blackburn did not have standing, it refused defendant's requests for a directed verdict, mistrial, and objections on this ground. The trial court noted that it was authorized by the Child Custody Act to grant custody of the children to a third party, even one without standing, so long as it found that this was in the children's best interests.

At the evidentiary hearing on the best interest factors, defendant refused to put on witnesses, arguing that the parental presumption was in his favor, and there was no third party with standing that could rebut the presumption by clear and convincing evidence. The trial court then allowed Blackburn to testify in the proceedings and he was subject to cross-examination by defendant's counsel. No other witnesses were presented in this matter, and defendant did not testify on his own behalf.

After this hearing, the trial court engaged in a lengthy analysis under the best interest factors.[2] The trial court found that factors (a), (b), (c), (d), (e), (g), (h), (j), and (l) favored Blackburn. It found that factors (f) and (k) favored neither party. It found zero factors in favor of defendant. As to factor (l), the catch-all factor, the trial court detailed that the "most influential factor considered by this court to be relevant to this matter is fitness." The trial court noted that because defendant did not take the stand or have any witnesses testify on his behalf, the trial court was left with its observations, which included that defendant was in a wheelchair, defendant raised his hand when his name was mentioned in court, and that defendant did not know his own address. The court stated: "Defendant's counsel rested on the notion that Defendant is their Dad and the kids must be automatically returned or given to him." The court further stated: "It is by no means this Court's intention to deprive Defendant of his children, however it is this Court[']s grave concern that Defendant is unable to provide for the care, safety, and welfare of his children." The court concluded that Blackburn established by clear and convincing evidence that awarding him custody was in the best interests of the minor children. This appeal followed.

Defendant first argues that the trial court impermissibly allowed Blackburn to participate in the proceedings and rebut the parental presumption owed to natural parents under MCL 722.25(1) because he did not have standing. After review of this question of law, we ...

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