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In re Diehl

Court of Appeals of Michigan

September 19, 2019

In re DIEHL, Minor.
v.
T J DIEHL, Respondent-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellant,

          Oakland Circuit Court Family Division LC No. 2017-855352-DL

          Before: Borrello, P.J., and K. F. Kelly and Servitto, JJ.

          K. F. Kelly, J.

         The prosecution appeals as of right the trial court's order "unauthorizing" two juvenile delinquency petitions, alleging that respondent committed domestic violence, MCL 750.81(2), and larceny in a building, MCL 750.360-both of which are offenses defined in section 31(1)(g) of the Crime Victim's Rights Act (CVRA), MCL 780.781, et seq.-and removing those petitions from the adjudicative process. We affirm the trial court's order, but remand this case to the trial court to complete the ministerial tasks of (1) assigning separate petition numbers to each of respondent's three juvenile delinquency petitions, and (2) placing the separate petition numbers on all documents within respondent's case file that are related to each petition.

         I. BASIC FACTS

         This case arises out of three juvenile delinquency petitions issued by the prosecution against respondent. The first petition, dated July 24, 2017, alleged that respondent committed domestic violence against his adoptive mother, Diehl. Specifically, respondent was then 12-years old and had resided with Diehl since he was eight years of age. On July 23, 2017, respondent's biological sister was visiting the family, but abruptly decided to end her visit. This caused respondent to scream at his sister, but respondent's brother called from California and was able to calm respondent down. Hours later, respondent wanted to read the newspaper, but Diehl told him that it was time to go to sleep. This caused respondent to become enraged, and he began to throw objects. Diehl went outside and called 911. The police photographed injuries to Diehl, but she attributed her bruises to a prior fall and an unspecified medical condition. Moreover, she opined that respondent did not intend to throw objects at her. The first petition was authorized after a preliminary hearing, [1] and respondent was released into Diehl's custody with the condition that Diehl arrange counseling for respondent.

         Two days after respondent was released into Diehl's custody, however, a second petition dated July 26, 2017, issued, alleging that respondent committed another act of domestic violence against Diehl. Specifically, the police[2] were called by Diehl's neighbor who reported that respondent struck Diehl, causing her to fall to the ground and then continued to kick her. Diehl reportedly told the officers that respondent was agitated about attending court-ordered therapy and began to swing a bag. Although she denied being punched, Diehl reportedly admitted to the responding officers that respondent pushed her, causing her to fall to the ground. Following this preliminary hearing, the second petition was authorized. With regard to placement, it was noted that respondent was a good student with no disciplinary issues at school. It was determined that respondent would remain in custody until a pre-trial was held. Pursuant to respondent's judge demand, the case was assigned to Oakland County Family Court Judge Victoria Valentine for its duration.

         On August 8, 2017, a hearing was held before Judge Valentine. Respondent entered a plea of no contest to the domestic violence charge in the first petition.[3] Respondent did not enter a plea to the domestic violence charge in the second petition at that time. With regard to the second petition, it was requested that the matter be set for trial with discovery occurring in the interim. Respondent's counsel requested that "the prosecutor . . . consider dismissing the second [petition] since the Court will already have jurisdiction after you accept the plea." The prosecutor agreed that he would send respondent's counsel the necessary discovery and contemplate the dismissal of the second petition. When addressing services, Louise Strehl of Casework Services, [4] requested an evaluation before respondent was returned home because of the volatile relationship with his mother. Diehl preferred to bring respondent home and get him help and therapy, "not jail." She stated that respondent "was a little boy who has spent half of his life being abused, and something set him off that weekend, . . . [b]ut before that, he had never had an incident." Diehl further stated that although respondent had been opposed to therapy, his time spent at Children's Village caused him to realize the importance of it. The trial court ordered placement to continue at Children's Village with a psychological evaluation to occur within seven days.

         On September 1, 2017, a disposition hearing was conducted on the first petition. At the hearing, respondent's counsel expressed that, despite his 40 years of practice, he "was appalled and beyond angry" to learn of "what took place when [respondent] lived with his biological parents." Although respondent had the right to be angry, he had learned of the need to find methods to address his anger. Respondent's counsel again asked the prosecutor to consider dropping the second petition, but acknowledged "that's a prosecutorial decision." The prosecutor agreed to discuss the second petition, but first addressed his reservations regarding the recommendation by Casework Services. Specifically, he requested an adjournment of disposition to allow the out-of-home screening committee to evaluate the case in light of the prior violence in the home and questioned whether Diehl would report the violence if it recurred. Strehl, of Casework Services, stated that if she felt the case needed to be presented to the committee, she would have done so. Strehl opined that supervising respondent in the community would allow her the opportunity to understand the relationship between him and Diehl, and she would report her concerns to the court and the committee if necessary. With respondent scheduled to start school, Strehl would engage in community monitoring by meeting with the school's social worker and counselor as well as monitor respondent's therapy to learn of signs of trouble in the family home. Respondent's medication had been changed while he was placed in Children's Village, yet he had not required recent physical management there. Strehl credited respondent's lack of physical involvement, noting that Children's Village was a stressful environment and children would incite others to get into trouble.

         Diehl also offered that respondent's violent reaction was triggered by his sister who mentioned that parents could rescind an adoption and that caused him to fear it would happen to him. She assured the court that resources, including therapy, were in place to prevent an incident of that magnitude from recurring, and she would comply with any court orders. In response to questioning by the court, respondent indicated that he would deal with anger in a different way, by using a stress ball or coloring, and he now wanted to attend counseling. Respondent stated that Diehl taught him math at a twelfth grade level even though he was only in seventh grade, and he would like to be an engineer. The court adopted the recommendation for standard probation, attend counseling, attend school, remain on prescription medication, and release to

          Diehl. The prosecutor never stated his position on the record regarding the second petition. However, the trial court addressed it by stating, "With regard to his additional charge, I'll allow you to determine how you're going to handle that, if you want that in a place for safeguarding any additional behavior. I'm going to allow the child to be released." The prosecutor offered to schedule a review on this case on the date scheduled for the trial on the second petition. Further, the prosecutor agreed to provide any video or audio recordings made by the responding police officers to the alleged act of domestic violence that was the subject of the second petition.[5]

         While on probation, a third petition, dated January 19, 2018, was issued, alleging that respondent committed larceny in a building by stealing money from a school teacher's purse in November 2017. This third petition was authorized after a preliminary inquiry hearing.

         On January 30, 2018, the hearing commenced with the representation that respondent was prepared to enter a plea of no contest to the domestic violence offense raised in the second petition, as well as the larceny in a building offense delineated in the third petition. Prior to the taking of the plea, the prosecutor and Strehl discussed the services that should be imposed. Strehl learned from respondent's therapist that he was starting to address the trauma that occurred when he was younger, and the therapist wrote a letter forewarning that respondent may begin to react or act out because of the work occurring in therapy. Consequently, Strehl forwarded the letter to the trial court and recommended intensive probation oversight.

         The trial court advised respondent of the consequences of the plea and initially accepted it. However, respondent's counsel asked to approach the bench and a six-minute sidebar conference occurred off the record.[6] After the sidebar, the trial court reconsidered its decision, took respondent's plea "under advisement, " and set the matter for review a few months later.

         The trial court placed its rationale for rejecting the plea on the record as follows:

The Court: So, I'm going to hold your disposition for - - when is it? April 24th, 2018, at 1:30. Okay.
And [respondent], let me tell you why. I've read the reasons why you took the money. And you were trying to help another child who was starving. And with regard to the alleged domestic violence here, we've gone through the issues with regard to your history and your past. And upon speaking with both the - - all counsel here, it's indicated that my - - I can't give more probation or more services to you than you have right now even if I sentence you in a disposition.
And so, I'm going to hold everything under advisement, we're going to send it to committee to see what a recommendation would be, and I'll determine whether or not I'm going to proceed with the accepting [of] your plea or not, okay?
[Respondent]: Yes, Your Honor.
The Court: So, I need you to understand a couple things. We're all here to help you, okay? You had a tough past, okay? But now you have a really good future. You need to trust your mom, you need to let your mom help you, you need to talk to your therapist, and you need to work through all these issues without any violence, okay, and with doing the right thing all the time. If you would have told somebody in the office that the kid didn't have lunch money, I bet you someone would have gave him some lunch money, okay? Without you having to go take it out of someone's purse, okay?
[Respondent]: Yes, Your Honor.
The Court: Okay. So, you know if your intention is to be goodhearted, that's great; you have to do it the right way.
[Respondent]: Yes, Your Honor.

         On April 24, 2018, the hearing commenced with a summation by Strehl of Caseworker Services. She noted that the petitions for the second domestic violence and the larceny in a building[7] needed to be addressed or adjourned. Strehl stated that the larceny in a building arose from respondent's theft of money from a teacher to feed his hungry friend. Despite these new allegations, the recommendation of probation remained the same, but Strehl imposed consequences for the second domestic violence petition, police contact at the family home, and third petition for larceny in a building. Despite his birthday, respondent was required to attend and complete mid-course corrections, a program where he learned to be respectful, honorable, and accept his mistakes. Additionally, he completed an honors program where the staff commented on his remarkable job despite his young age. Respondent continued to participate in therapy. Therefore, Strehl recommended that respondent continue with standard probation.

         Although Strehl summarized the current status of the petitions, the new prosecutor asked, "If someone could help me as to - - so I understand the procedure where we're at." The trial court advised that respondent's plea was not accepted and disposition had not occurred. The prosecutor requested that the plea be accepted, but the court denied the request. The following transpired on the record:

The Court: I'm going to allow him on the path that he's on. My indication from Miss Strehl at the time was that he wouldn't be doing anything different as far as services, his services remain the same.
He is among the youngest children that I have in front of me. Giving him two additional charges is just stacking a child's juvenile record. And so, I am holding everything in abeyance and having him get through all of his services, trying to get him on the right path. His history is - - I'm not sure if you know about it. Do you know about his history?
[The Prosecutor]: No.
The Court: Okay. His history is that he's been recently adopted. He had quite a horrific childhood for six years. And I think he's got to work through some of his problems. And I want to make sure we're getting him the best treatment. And I don't think that giving him a ...

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