Child’s removal & placement in foster care; MCL 712A.13a(9); MCR 3.965(C)(2); In re Williams; Adequate relative placement; Distinguishing In re Martin & In re Webster

Holding that the trial court clearly erred in finding that MCL 712A.13a(9)’s requirements for removal were satisfied, the court reversed the part of the order entered after the preliminary hearing that removed the child, and remanded. Respondent-father argued on appeal that the trial court erred “because the child was already in an adequate relative placement with the child’s adult sister.” The court agreed. One of the statutory conditions for removal, MCL 712A.13a(9)(b), requires a “finding that ‘[n]o provision of service or other arrangement except removal of the child [was] reasonably available to adequately safeguard the child . . . .’” The record showed “that respondent had voluntarily placed the child with the child’s adult sister as part of a safety plan and had given the sister power of attorney regarding the child’s custody and care. Petitioner had confirmed that the sister’s home and custody was a safe and appropriate placement.” The trial court stated, “I understand there’s a power of attorney, but it hasn’t stopped mom or father at times to try and, you know, get the child back.” The court found that this was clear error. While there was an allegation “that the child’s mother tried to take the child back from the sister while intoxicated. . . . it was clear error for the trial court to find that respondent did so, and” the DHHS pointed to no record evidence supporting such a finding. The court was also “unpersuaded by the argument that the mere legal or hypothetical possibility of a revocation” of the power of attorney, “without more, means that it is not an adequate safeguard under the circumstances.” Further, the cases the DHHS cited, Martin and Webster, were “not particularly illuminating or persuasive” given that the court was “bound by a distinct statutory landscape.” It was not convinced “that, as a general matter, the mere duration and revocability of a power of attorney is reason to find that placement under power of attorney cannot adequately safeguard a child for purposes of MCL 712A.13a(9).”