STATE OF MICHIGAN
COURT OF APPEALS
BRYAN MICHAEL RACZKOWSKI,
UNPUBLISHED
November 14, 2013
Plaintiff/Counter-DefendantAppellant,
v
No. 313423
Mason Circuit Court
LC No. 07-000354-DM
ASHLEY DAWN CORRELL, f/k/a ASHLEY
DAWN RACZKOWSKI,
Defendant/Counter-PlaintiffAppellee.
Before: SAAD, P.J., and K. F. KELLY and GLEICHER, JJ.
PER CURIAM.
This custody dispute arose after the Department of Human Services (DHS) initiated child
protective proceedings against defendant Ashley Dawn Correll, the mother of OR. The child
protective proceedings stemmed from the drowning death of OR’s half-sister, HH, while in the
care of Correll’s boyfriend, Matthew McCarthy. During the course of the child protective
proceedings plaintiff Bryan Raczkowski filed this action seeking custody of his daughter.
Despite that at the custody trial’s conclusion OR had resided with Raczkowski for
approximately 18 months, the trial court found that OR’s established custodial environment
existed solely with Correll. The trial court further found that three of the best interest factors
favored Correll, who elected to remain in a relationship with McCarthy, while none favored
Raczkowski.
The trial court’s ruling concerning OR’s established custodial environment constitutes
harmless error. However, because the trial court’s findings concerning several best interest
factors contravened the great weight of the evidence, we reverse and remand for a new best
interest hearing.
I. UNDERLYING FACTS AND CHILD PROTECTIVE PROCEEDINGS
Correll and Raczkowski married in 2005 and divorced in 2008. OR, the only child of
their marriage, was born in 2006. She is now seven years old. Correll and Raczkowski shared
OR’s legal and physical custody until she started school. For the 2009 school year, the parties
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agreed that OR would reside primarily with Correll while Raczkowski retained alternate
weekend parenting time.
Meanwhile, both parents entered into other relationships. In 2008, Raczkowski married
Sara, who had two children close in age to OR. This marriage produced a son. Correll moved in
with and later married Lucky Hatt, and gave birth to two additional children: HH and WH. In
December 2010, Correll left Hatt and moved in with Matthew McCarthy. Because McCarthy
lived some distance from OR’s school, OR stayed with her maternal grandparents on school
nights.
On February 10, 2011, Correll left 12-month-old HH in McCarthy’s care while she ran
errands. During Correll’s absence, McCarthy gave HH a bath. When Correll returned, she
observed that HH appeared to be asleep in her crib. Fifteen minutes later Correll heard “a highpitched squeal.” Correll first thought that HH was having a nightmare. HH made “a higher,
louder, longer squeal” and Correll called 911.
On arrival at the Gratiot Medical Center, HH was in respiratory failure and had fixed,
dilated pupils. She was transported by helicopter to the University of Michigan Medical Center.
Physicians at U of M determined that HH was comatose and lacked purposeful brain function.
They consulted Dr. Bethany Mohr, a specialist in general and child abuse pediatrics.
Dr. Mohr examined HH the next day. In addition to HH’s coma, Dr. Mohr observed that
HH had bruising on her forehead and under her chin and reddening of her right cheek consistent
with a burn. An x-ray revealed a nonacute fracture of HH’s forearm.
Dr. Mohr interviewed McCarthy and Correll to obtain a history of the events preceding
HH’s hospitalization. Mohr dictated a lengthy note regarding these interviews. She recorded
that McCarthy bathed HH after the child “lifted up the toilet seat and was splashing around in the
toilet water.” McCarthy told Mohr that he put HH “‘in the tub and scrubbed her.’” Mohr’s note
continued:
I, specifically, asked Mr. McCarthy if anything happened while [HH] was
in the tub and Mr. McCarthy denied that [HH] had fallen while she was in the tub.
He denied any trauma whatsoever or anything out of the ordinary happening and
stated that [HH] was her “normal fun self” while she was in the tub. At no time
did Mr. McCarthy state that [HH] fell underneath the water or that her face, at any
time, was in the water. After taking her bath, Mr. McCarthy said that he laid
[HH] down for a nap and she did not cry. He said that she is “famous for talking
herself to sleep” and, typically, stands up and jumps in her crib prior to laying
down and going to sleep. Mr. McCarthy referred to [HH] as a “party animal.”
After Mr. McCarthy put [HH] into her crib he stated that she “got quiet” and he
thought she had fallen asleep.
Correll told Dr. Mohr that McCarthy had texted her about HH’s encounter with the toilet
water and sent her a picture of HH in the bathtub. When Correll returned home, McCarthy
reported to Correll that HH had “‘slipped under the water for less than 5 seconds’” while she was
in the bathtub.
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HH died on February 11, after life support was withdrawn. Dr. Mohr concluded that the
child’s death was likely due to drowning.1 She based her conclusion on laboratory findings
demonstrating lack of oxygen to HH’s brain and that HH had swallowed 1.5 to 2 liters of water
shortly before losing consciousness. Mohr further opined that HH was “either a victim of
physical abuse and/or neglect (i.e. left unattended in the bathtub, failure to seek medical care
after injury sustained) leading to her severe brain injury.” She specifically noted that “due to the
severity of [HH]’s brain injury, the inciting event would have had to occur very close to the time
that [HH] became ill and was unresponsive.” In a subsequent letter to the Montcalm circuit
court, Mohr explained her conclusions in more detail:
Most significant was [HH]’s initial sodium (“salt”) levels of 109 and 104.
A normal sodium level is approximately 135-145. [HH]’s cerebral edema (“brain
swelling”) with subsequent herniation was likely due to a combination of anoxic
(“lack of oxygen”) injury and hyponatremia (“low salt levels”).
Based on the [sic] [HH]’s lab findings, MRI findings, clinical status, and
the history that [HH] was in a bathtub filled with water prior to her clinical
deterioration, [HH] was a victim of drowning.
Based on the histories I obtained from Matthew McCarthy and Ashley
[Correll], Mr. McCarthy was left alone to care for [HH] in the afternoon on
Thursday 2/10/10; prior to Ms. [Correll] finding [HH] apparently seizing and
unresponsive later that afternoon. Per Ms. [Correll], [HH] was “fine” when Ms.
[Correll] left [HH] in Mr. McCarthy’s care.
Please note that I obtained histories from both Mr. McCarthy and Ms.
[Correll], separately. Upon asking Mr. McCarthy if anything had happened while
[HH] was in the bathtub or when she was playing in the toilet, Mr. McCarthy
never reported that [HH]’s face/head, at any time, went under or into the water;
“nothing unusual happened.” However, Ms. [Correll] reported that Mr. McCarthy
told her that [HH] had “slipped under the bathwater for less than 5 seconds.”
[HH]’s extremely low sodium level indicates that [HH] swallowed at least
approximately 1.5-2 L of fresh water over a short period of time. Of note, [HH]
has no medical history to explain such low sodium levels.
Two possible scenarios exist to explain the cause of [HH]’s death:
1.
[HH] was intentionally submerged in water leading to anoxic brain
injury and ingestion of a significant amount of fresh water causing her sodium
levels to markedly decrease. In this case, [HH]’s death would be the result of
physical abuse.
1
An autopsy was performed but the report was not filed with the trial court. Dr. Mohr was the
only physician who testified regarding HH’s cause of death.
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2.
[HH] was found submerged in water after being left unsupervised.
In order to ingest the amount of water necessary to lower [HH]’s sodium level to
104-109, she would have been neurologically impaired. In this case, Mr.
McCarthy would have found [HH] essentially unconscious in the bathtub and any
layperson would have known that [HH] was in need of emergent medical care. In
this case, [HH]’s death would be a result of neglect and medical neglect due to
Mr. McCarthy’s failure to seek immediate medical care for [HH].
On February 12, 2011, the DHS filed a petition in Montcalm County for the removal of
OR and WH from Correll’s home and for the termination of Correll’s parental rights. OR was
initially placed in foster care, and on March 31, 2011, she was placed with Raczkowski.2
In August 2011, Correll admitted to a number of allegations in an amended petition
which no longer sought termination of her parental rights. During her colloquy with the court
Correll admitted awareness that her daughter’s cause of death was drowning:
The Court: Okay. There’s a—then on February 10th your daughter [HH]
was left in the care and custody of Mr. McCarthy?
Ashley [Correll]: Correct, yes.
The Court: And that was at what address, ma’am?
Ashley [Correll]: 3833 Deaner Road, Edmore, Michigan.
The Court: Okay. And while she was in his care and custody, did she
die?
Ashley [Correll]: No.
The Court: Okay. She died in Ann Arbor?
Ashley [Correll]: Yes.
The Court: And what date was that?
Ashley [Correll]: February 11th.
The Court: And that was this year?
Ashley [Correll]: Yes.
2
WH was also placed in foster care, and then with his father. Tragically, WH died in a car
accident in January 2012, while in his father’s care.
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The Court: And for the record, can you tell me what the cause of death
was?
Ashley [Correll]: It was caused by fresh water drowning or fresh water in
her lungs.
The Court: And medical help was not requested for [HH] immediately?
Ashley [Correll]: Um, I wasn’t there.
The Court: Okay. So medical treatment wasn’t sought for the child until
after you arrived?
Ashley [Correll]: Correct, yes.
The Court: Again, that was when you arrived at the Deaner Road address
in Edmore?
Ashley [Correll]: Yes.
The Montcalm circuit court took jurisdiction of OR and WH and ordered that Correll
undergo a psychological evaluation and participate in other services. Whether Correll complied
with all requirements of her parent agency agreement remains unclear. On July 31, 2012, the
Montcalm circuit court terminated its jurisdiction over OR based on a stipulation reflecting
Raczkowski’s temporary custody of the child and that the Mason circuit court would render a
further custody determination. Notably, the Montcalm circuit court did not terminate jurisdiction
because it deemed Correll a fit custodian who could keep her child safe.
II. THE CUSTODY TRIAL
Raczkowski petitioned the Mason circuit court for OR’s full custody. The Mason circuit
court conducted a three-day custody trial concluding in August 2012. By the time the trial
ended, OR had been living with Raczkowski, his wife, and their other children for 18 months.
During most of this interval Correll had supervised parenting time consisting of several hours
each week. When the trial commenced, her parenting time expanded to one night every other
weekend, supervised by her parents.
Three DHS workers testified at the custody trial concerning their involvement in the child
protective proceedings. Renee Hyde, a child protective services (CPS) investigator, transported
OR from Ann Arbor to a foster home. During the journey, Hyde conducted a forensic interview.
OR revealed that she did not like McCarthy and began crying. Hyde performed a second
interview in OR’s foster home. OR revealed that when HH got in trouble “she got spanked” and
denied that Correll “did the spanking.”
Jessica Szczerowski served as OR’s foster care caseworker for 13 months. She
developed Correll’s treatment plan, which included a psychological evaluation and parenting
classes. According to Szczerowski, the October 2011 psychological evaluation revealed “some
significant emotional mental health issues that needed to be addressed,” “a diagnosis of Mild
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Borderline Personality Disorder,” and “some concerns of substance abuse.” Although Correll
had recently started counseling with a self-selected therapist, Szczerowski testified that the
counselor failed to provide updated reports.
Szczerowski expressed concern that Correll failed to accept any responsibility “for why
her kids came into care,” and that “because she still is with Mr. McCarthy, [OR] is not safe in the
home due to the medical neglect.” She opined that Raczkowski should have custody because:
[OR] has been placed in his care for over a year now. There have been no major
concerns. He has been able to show that he can provide stability for [OR]. And I
also do have concerns still regarding Ms. Correll and her relationship with Mr.
McCarthy and some of the mental health issues that were stated in the
psychological.
On cross-examination, Szczerowski agreed that Correll had behaved appropriately during her
supervised parenting time, that she and OR were “very bonded” to each other, and that OR
would cry when the visits ended.
Kristina Syjud, a Child Service’s Specialist, assumed responsibility as OR’s foster care
worker in April 2012. She made monthly visits with OR in Raczkowski’s home and also visited
with Correll. Syjud explained that she took over for Szczerowski at the suggestion of her
supervisor, who asked for Syjud’s input because “[OR] had been in care for a significant amount
of time at that point and they felt that a fresh perspective may be helpful[.]”
Syjud expressed concern that Correll had not participated in the type of therapy
recommended by the psychologist nor had she undergone random drug testing. According to
Syjud, OR had adjusted well to living with her father, referred to Sara as “mommy,” and never
expressed complaints about living with the Raczkowski family. She explained, “[a]ll of the
interactions I’ve seen during home visits have been very positive and appropriate.” Like
Szczerowski, Syjud opined that OR should be permanently placed with her father rather than
Correll. She reasoned:
Mr. McCarthy needed to seek medical treatment for [HH]. The medical
examiner’s reports indicated that [HH] died as a result of drowning and medical
attention was not sought immediately after that which led ultimately to [HH]’s
death.
And . . . Ms. Correll, does not seem to take responsibility or understand
that Mr. McCarthy needed to seek that medical attention and has stated that she
doesn’t feel like he did anything wrong in those instances and that if she had to do
it all over again, she would do the same things leaving her daughter in Mr.
McCarthy’s care where he did not appropriately seek medical attention after a
drowning or near drowning that resulted in her youngest daughter’s death.
Dr. Mohr testified at length regarding HH’s death. She began by recounting the bruising,
facial redness and arm fracture detected on her initial exam. Mohr concluded that except the
fracture, Correll satisfactorily explained HH’s injuries. Mohr then recounted the varying and
contradictory histories of HH’s bath provided by McCarthy and Correll, and asserted that HH’s
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laboratory results were “completely inconsistent with the history of her never going under the
water.” In Mohr’s view, HH had either been “held under the water in order for her to swallow
that much water, or she was unconscious and swallowed that water due to near drowning in the
bathtub.” Mohr emphasized, “she may have gotten under the water, became unconscious, but
then was put to bed basically unconscious after she was found.”
OR’s kindergarten teacher, Karen Prafke-Morin, testified on behalf of Correll. PrafkeMorin described OR as “bubbly, friendly, outgoing” in the classroom, but also characterized OR
as “very clingy” and unprepared for first grade. According to Prafke-Morin, OR frequently slept
through class, “was having a lot of struggles just to get through a day,” and cried frequently.
Prafke-Morin asserted that she had recommended to Raczkowski that OR be retained in
kindergarten, but he disagreed. Prafke-Morin claimed that Raczkowski directed her to keep OR
awake during class. Correll had visited the class on four occasions, Prafke-Morin recalled, and
OR cried and was difficult to console when her mother left. Raczkowski, on the other hand,
failed to attend any parent-teacher conferences.
Sue Ellen Pabst, a licensed social worker, also testified on Correll’s behalf. Pabst began
counseling Correll in August 2011, and diagnosed post-traumatic stress disorder. Pabst opined
that Correll had made good progress with therapy and expressed no concerns about her parenting
ability. When questioned by the court regarding the circumstances of HH’s death and whether
Correll could protect OR, Pabst stated, “I’m not concerned; I’m not concerned.”
Both Raczkowski and Correll testified at length and described their relationships with OR
in positive terms. Raczkowski testified that OR came to him when good things happened to her,
summarizing, “[s]he comes to show everything to her dad.” He claimed that she got along well
and had fun with her step-siblings, and that he participated with OR in a variety of activities
including roller and ice skating. Raczkowski admitted that Prafke-Morin had spoken with him
about OR’s mental health, her sadness, and her sleepiness during class. Raczkowski initially
claimed that OR had 20 counseling visits and that his insurance would not cover additional
sessions, but later admitted that she had only seven visits and that counseling for his step-son
consumed the other available sessions. Shortly before the trial, the DHS recommended that OR
receive more counseling and Raczkowski agreed to obtain it, despite his personal belief that it
was unnecessary.
Correll claimed that the DHS had never advised her that McCarthy constituted an
obstacle to her custody of OR, and denied that she had ever been informed of the cause of HH’s
death. Contrary to her testimony at the adjudication in the child protective proceeding, Correll
declared: “the only thing that I ever heard from U of M or Gratiot is that they suspected Shaken
Baby Syndrome. And that’s the only thing I’ve heard other than that the, another doctor said that
her getting her immunization shot a week prior. . . .” Her direct-examination testimony
continued:
Ms. Sniegowski: Do you feel at this time that you have a clear
understanding of what it was that caused your daughter’s death?
Ms.Correll: No, I do not.
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Ms. Sniegowski: Do you feel that you’ve been able to get a clear answer
when you tried to talk to medical professionals about what caused your daughter’s
death?
Ms. Correll: No, I have not.
Ms. Sniegowski: Have you sought out additional opinions on what caused
your daughter’s death?
Ms. Correll: I have. I have actually sought out to talk to medical doctors
actually out of state. My mother and I both have tried to reach out to get answers
from anybody who can answer our questions, and nobody can.
Ms. Sniegowski: So has any, anything that you’ve done on your own or
through DHS helped clarify what happed to [HH]?
Ms. Correll: No.
Ms. Sniegowski: And you had the opportunity today to hear what Doctor
Bethany Mohr is saying?
Ms. Correll: Yes.
Ms. Sniegowski: And do you understand what her opinion is?
Ms. Correll: Yes.
Ms. Sniegowski: What, what are you[r] concerns or why would you just
not take that at face value?
Ms. Correll: Because I called Matt on my way to pick up [OR], and it was
after she had already been out of the bath. And the reason I know she’s been out
of the bath is because I received a text message that had a picture of her in the
bath, and I called to see why she was in the bathtub. And he said that she had
stuck her arm in the toilet so he put her in the tub. And I said, “Good job.” And I
heard her in the background laughing and jumping in her crib, and I said, “What
is she doing now?” And he replied that he was trying to get her to take a nap
because I had a schedule and it was her naptime. He said he tried to rock her, she
didn’t want to be rocked so now she’s playing in her crib, hopefully she’ll fall
asleep. I picked up [OR], I came home, I got [OR] out of the car, I went into the
house, I called my mom to discuss shoes with her, and [OR], I walked [OR] into
the bedroom, I checked on [HH] and she was sleeping, and I walked out of the
bedroom. So from the time that I got home until the time I was on the phone call,
my daughter was alive and well. So I don’t conclude [sic] with her opinion
because she wasn’t there to know what I know.
Correll testified that she had no concerns about leaving McCarthy with her children and asserted:
“I would do it; I would leave any of my children with him.”
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The trial court questioned Correll concerning this testimony. Correll reiterated that she
did not believe Dr. Mohr’s testimony or that HH had drowned. In response to the court’s
questions, Correll recounted that McCarthy had been “texting on his phone” when HH slipped
under the water “and he had pulled her up, brushed her face off, and he said that she screamed
until she got out of the tub. And that was it.” Correll maintained that she believed McCarthy’s
claim that HH had been underwater only “a brief second[.]”
McCarthy described the incident as follows:
I was at the sink in the bathroom. She was trying to stand up in . . . the bathtub.
She was at the shallow end of the bathtub, and she slipped. She was climbing up,
she slipped, and she fell down. And by the time her feet hit the other end of the
bathtub, I had her out of the water.
McCarthy denied that HH had lost consciousness, had any trouble breathing, or appeared in any
distress other than crying. He admitted that he “forgot” to tell Dr. Mohr that HH had slipped
under the water.
McCarthy further admitted that in January 2011, he “los[t] [his] cool” and punched his
ex-girlfriend’s boyfriend in the nose. McCarthy pleaded guilty to an assault charge. As a result,
he temporarily lost the ability to visit his son.
The trial court rendered a written opinion finding that OR’s established custodial
environment was with Correll, reasoning in relevant part as follows:
The mother was the primary physical custodian from the date of the
divorce until the death of [HH] in February of 2011. Two workers from the
Montcalm County DHS testified that [OR] had a strong bond with her mother and
her teacher testified that when the Defendant mother came to school and it was
time for her to leave, [OR] “was very sad and she had to be peeled off her
mother”. Testimony from her teacher as well as the Plaintiff father himself
revealed that his wife had more contact with her teacher and a mental health
counselor, than he did because of work. The sum total of the trial testimony
demonstrates that [OR] naturally looked to her mother, from birth to February of
2011, for parental comfort and the necessities of life. Jessica Szczerowski from
Montcalm County DHS testified that [OR] continually asked when she could go
back to Mom after placement with Dad. This court finds that an established
custodial environment exists with the mother and that the Plaintiff must provide
clear and convincing evidence that a change of custody to him is in [OR]’s best
interests.
The court found that the child’s best interests would be served by returning her to
Correll’s primary custody. As discussed in greater detail later in this opinion, the court found
that three best interest factors weighed in Correll’s favor and that the parties were equal on the
balance of the factors. Raczkowski now appeals.
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III. STANDARD OF REVIEW
Our review of a circuit court’s custody or parenting time decision is well settled. We
must affirm “all orders and judgments of the circuit court” under the Child Custody Act (CCA)
“unless the trial judge made findings of fact against the great weight of the evidence or
committed a palpable abuse of discretion or a clear legal error.” MCL 722.28; Pierron v
Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). Our review is thereby limited:
Findings of fact, such as the trial court’s findings on the statutory best-interest
factors, are reviewed under the “great weight of the evidence” standard.
Discretionary rulings, such as to whom custody is awarded, are reviewed for an
abuse of discretion. An abuse of discretion exists when the trial court’s decision
is “palpably and grossly violative of fact and logic[.]” Finally, “clear legal error”
occurs when a court incorrectly chooses, interprets, or applies the law. [Dailey v
Kloenhamer, 291 Mich App 660, 664-665; 811 NW2d 501 (2011) (citations
omitted).]
IV. ANALYSIS
A. ESTABLISHED CUSTODIAL ENVIRONMENT
Raczkowski first contends that the circuit court erred in finding that OR’s established
custodial environment existed only with Correll. The CCA “is intended to erect a barrier against
removal of a child from an established custodial environment and to minimize unwarranted and
disruptive changes of custody orders.” Heid v AAASulewski (After Remand), 209 Mich App 587,
593-594; 532 NW2d 205 (1995). A custodial environment “is established if over an appreciable
time the child naturally looks to the custodian in that environment for guidance, discipline, the
necessities of life, and parental comfort.” MCL 722.27(1)(c). Whether an established custodial
environment exists is a question of fact to which the great weight of the evidence standard
applies. Foskett v Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001).
An established custodial environment is “one of significant duration in which a parent
provides care, discipline, love, guidance and attention that is appropriate to the age and
individual needs of the child.” Berger v Berger, 277 Mich App 700, 706; 747 NW2d 336
(2008). “It is both a physical and a psychological environment that fosters a relationship
between custodian and child and is marked by security, stability, and permanence.” Id. In
evaluating whether an established custodial environment exists, the focus is on the care of the
child during the time period preceding the custody trial. Hayes v Hayes, 209 Mich App 385,
388; 532 NW2d 190 (1995).
The trial court’s finding that OR’s established custodial environment resided solely with
Correll contravened the great weight of the evidence. During most of the 17 months preceding
the custody trial, OR lived with Raczkowski and his family. Unchallenged evidence supplied by
the DHS workers and Raczkowski supported that during this time, OR looked to Raczkowski as
well as to Correll “for guidance, discipline, the necessities of life, and parental comfort.” MCL
722.27(1)(c). OR’s emotional bond with her mother, while undeniably strong, does not negate
that for a substantial portion of the child’s life, she resided with her father in a healthy, mutually-10-
beneficial relationship. The great weight of the evidence demonstrated that during the
considerable time that OR lived with Raczkowski, the two shared a stable, secure and seemingly
permanent association fulfilling the definition of an established custodial environment.
Nevertheless, the trial court’s erroneous determination of OR’s established custodial
environment constitutes harmless error. Because OR had an established custodial environment
with both parents, neither parent’s established custodial environment could be disturbed absent
clear and convincing evidence that a change served the child’s best interests. Foskett, 247 Mich
App at 8. Accordingly, the trial court did not err by requiring Raczkowski to clearly and
convincingly prove that OR’s best interests would be served by awarding him sole physical
custody.
B. THE BEST INTEREST FACTORS
Raczkowski next contends that the trial court’s findings regarding OR’s best interests did
not comport with the great weight of the evidence. Specifically, Raczkowski challenges the trial
court’s findings concerning best interest factors MCL 722.23(a), (b), (c), (d), (e), (f), (g), (j), (k)
and (l), contending that the trial court’s judgment on each contravened the great weight of the
evidence. The trial court found that facts (a), (b) and (c) favored Correll and that the parties
were equal in relation to the remaining factors. Our review of the record substantiates that the
trial court’s findings regarding factors (d), (e), (g), and (l) contravene the great weight of the
evidence. Because the trial court failed to accurately evaluate McCarthy’s role in HH’s death,
his domestic violence, and Correll’s capacity to provide OR with a safe home environment, we
reverse and remand for a new best interests hearing based on current information.
Factor (a) addresses the “love, affection, and other emotional ties existing between the
parties involved and the child.” MCL 722.23(a). The trial court favored Correll on this ground,
finding that while “[i]t is obvious that both parents love their daughter, . . . the testimony before
the court establishes that the emotional bond between [OR] and her mother is stronger than with
the father.” Raczkowski argues that “[a] proper finding under this factor would be that the
parties are equal,” as the evidence supported that OR had an equally strong bond with her father.
Our review of the evidence substantiates that OR and Correll shared an exceptionally strong
emotional bond despite OR’s lengthy placement outside of Correll’s custody. The trial court’s
finding that this factor favored Correll was not against the great weight of the evidence.
Factor (b) concerns the “capacity and disposition” of the parents to provide the child with
“love, affection, and guidance” and to continue the child’s education and religious upbringing.
MCL 722.23(b). The trial court relied heavily on Prafke-Morin’s testimony in finding that this
factor favored Correll. Prafke-Morin reported that OR’s emotional turmoil interfered with her
education and that Raczkowski was resistant to acknowledge the child’s need for continued
counseling. The trial court described Prafke-Morin’s testimony as “insightful and concerning,”
and concluded: “it is clear to this court that the father does not appreciate the enormity of [OR’s]
loss and the absolute necessity of professional emotional intervention. He was in the position to
do something about it and he did not and has not.”
Raczkowski challenges this finding, arguing that OR’s behavior at school was
inconsistent with her behavior at home, that one of OR’s counselors had advised that she no
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longer needed any therapy, and that Prafke-Morin essentially facilitated OR’s sleepiness by
permitting the child to nap at will. The trial court found Prafke-Morin’s testimony more
compelling and more credible and we discern no basis to disturb this finding.3
In regard to factor (c), the capacity of the parties “to provide the child with food,
clothing, medical care or other remedial care” and material needs, the trial court found troubling
Raczkowski’s previous child support deficiencies and his lack of support for OR’s counseling.
The court summarized, “Not to fully recognize and minimalize [OR’s] difficulties following the
removal from her mother and the sudden deaths of two siblings demonstrates that the father is
not properly responding to the remedial needs of his daughter. This factor favors the mother.”
Again, Raczkowski focuses his challenge to this finding on his contention that OR’s need for
counseling was not as acute as Prafke-Morin alleged. The trial court elected to credit PrafkeMorin’s evaluation of OR’s emotional needs rather than that of Raczkowski. Accordingly, the
court’s determination that factor (c) favored Correll did not contravene the great weight of the
evidence.
Raczkowski next asserts that factors (d) and (e) favored him rather than being equal.
These factors overlap somewhat. Ireland v Smith, 451 Mich 457, 465; 547 NW2d 686 (1996).
Factor (d) concerns “[t]he length of time the child has lived in a stable, satisfactory environment,
and the desirability of maintaining continuity,” while factor (e) addresses “[t]he permanence, as a
family unit, of the existing or proposed custodial home or homes.” Factor (e) requires a court to
“weigh all the facts” bearing on which parent likely can best provide the child “the benefits of a
custodial home that is marked by permanence, as a family unit.” Id. at 466.
The trial court found the parties equal on both factors (d) and (e), finding as follows with
regard to factor (d):
[OR] lived with her mother up until February 2011 when her sister died.
There were apparently no problems up until that time that prompted the father to
take any action to alter the custody arrangement. The father has a wife who has
two children from a previous relationship and a son together. There was no
testimony that the father’s home is an inappropriate environment. This factor is
equal.
Regarding factor (e) the trial court opined:
The father has been in a relationship with his wife since 2007 and the
mother has been in a relationship with her boyfriend for approximately two years.
The [DHS] has overseen the residences of both and it was testified to that both are
appropriate. This factor is equal.
3
Based on Prafke-Morin’s testimony regarding OR’s school performance and OR’s relatively
short school career, the trial court found the parties equal in relation to factor (h) (the home,
school and community record of the child). Raczkowski does not challenge the factual support
for the court’s conclusion in this respect.
-12-
Raczkowski contends that “maintaining [OR] with Plaintiff-Father would have been the
correct decision to the desirability for maintaining continuity [under factor (d)],” given that at the
time the trial court issued its opinion OR had lived with Raczkowski for 20 months. As to factor
(e), Raczkowski argues that since the parties’ divorce, Correll has “been in multiple relationships
with live-in partners . . . and moved herself and [OR] five times.” These facts, Raczkowski
asserts, reflect that Correll “was far from a representation of a permanent family unit.”
The stability of Correll’s living arrangement is at the core of factors (d) and (e). As
explained by our Supreme Court in Ireland, these factors do not require a court to explore the
“acceptability of the home” at issue. Id. at 464 (quotation marks and citation omitted). Rather,
the focus must remain on the stability of each environment and the likelihood that the competing
environments would remain continuous. The great weight of the evidence supports that Correll’s
living arrangements were markedly less stable than those of Raczkowski. After Correll and
Raczkowski separated in 2007, Correll lived in five different places. She outlined the people
with whom she resided as follows:
My mom, Lucky [Hatt], Matt [McCarthy], and Bambi. When I moved out
of our home, I moved in with . . . a friend of mine, her name is Bambi, and [OR]
and I lived there. And we moved out of there, and I rented a house. And then I
quit my jobs and moved in with my mom. And then I moved in with Lucky and
then Matt.
Correll explained that she met McCarthy in November 2010, while living with Hatt and moved
in with McCarthy one month later. Correll had lived with McCarthy for 45 days before
entrusting HH to his care. During that time, OR lived with her grandmother from Mondays
through Thursdays to attend school.
Correll and McCarthy moved to Chicago in January 2011, and returned to live in
Michigan after WH’s death. Syjud testified that if Correll was granted custody of OR, Syjud
would recommend that DHS “continue to keep the case open, offer services, and if the barriers
cannot be rectified in a timely manner . . . it would likely be recommended that another petition
be filed for termination of parental rights.” Szczerowski testified similarly. In contrast,
Raczkowski has lived with his wife and their children in the same location and without
interruption since 2008.
These facts do not support the trial court’s conclusion that the parties’ homes presented
equal opportunities for permanence or stability. Correll’s frequent moves and the apparent
impermanence of her relationships contrast markedly with the stability and continuity of
Raczkowski’s home environment. Furthermore, Correll’s decision to remain with McCarthy
potentially subjected her to further scrutiny by the DHS, as explained by the DHS caseworkers.
The great weight of the evidence contravened the trial court’s finding that the parties were equal
with regard to factor (e).
Factor (f) concerns the parties’ “moral fitness.” This factor relates to a person’s moral
fitness as a parent.” Fletcher v Fletcher, 447 Mich 871, 887; 526 NW2d 889 (1994) (emphasis
in original). In Fletcher, the Supreme Court instructed that when evaluating this factor,
-13-
courts must look to the parent-child relationship and the effect that the conduct at
issue will have on that relationship. Thus, the question under factor f is not “who
is the morally superior adult”; the question concerns the parties’ relative fitness to
provide for their child, given the moral disposition of each party as demonstrated
by individual conduct. [Id. (emphasis in original).]
Raczkowski’s argument equates Correll’s failure to accept McCarthy’s responsibility for
HH’s death with a moral shortcoming as a parent. While Correll’s inability or unwillingness to
acknowledge McCarthy’s pivotal role in HH’s death bears on her fitness as a parent, we decline
to characterize this as a “moral” failure. We similarly reject that Correll’s extramarital
relationship with McCarthy is relevant to this factor. The trial court did not err in considering
the parties equal on this ground.
Raczkowski next claims that the great weight of the evidence contravened the trial
court’s finding that best interest factor (g), “[t]he mental and physical health of the parties
involved,” favored neither party. The trial court acknowledged that Pabst had diagnosed Correll
as suffering from posttraumatic stress disorder, but minimized the importance of this diagnosis:
“It is of no surprise to this court that a parent who suffers the deaths of two young children
within a 12 month period of time would be so diagnosed.” The court further noted Pabst’s
opinion that Correll “made good progress in dealing with the trauma in her life and that she had
no concerns with [OR] being back in her mother’s care.” Although recognizing that Correll’s
case service plan had required a psychological evaluation and counseling, the trial court observed
that the Montcalm probate judge stated on the record of the child protective proceedings: “‘no
case service plan has been ordered for several months now.’” The trial court concluded,
“Apparently, DHS was not concerned that any psychological issues continued to exist.”
The great weight of the evidence contradicts the trial court’s finding that the DHS lacked
concerns regarding Correll’s “psychological issues” and that Pabst had given Correll a clean bill
of mental health. Szczerowski specifically expressed “concerns . . . based on my review of the
psychological assessment and the emotional stability and the lack of counseling that she has
attained.” Syjud testified that although the probate court ceased ordering Correll to comply with
her service plan, the DHS continued to recommend that she participate in counseling and in
random drug screening based on her history of getting drunk or high on a weekly basis. Pabst,
too, recognized that Correll had a history of drinking to excess. Although Correll had made
therapeutic gains, Pabst recommended continued counseling. No evidence supported that
Raczkowski suffered from any physical or emotional health problems.
While the trial court apparently found Pabst more credible than Syjud or Szczerowski,
even Pabst’s testimony supported that Correll’s on-going emotional issues remained unresolved
and that she needed additional therapy. The great weight of the evidence contradicted the trial
-14-
court’s conclusion that Correll had no ongoing psychological problems, thus rendering the
parties equal on this factor.4
Next, Raczkowski asserts that the trial court improperly evaluated best interest factor (j),
which addresses “[t]he willingness and ability of each of the parties to facilitate and encourage a
close and continuing parent-child relationship” with the other parent. The trial court found the
parties equal in this regard, discerning “no reasonable cause to believe that either party would
intentionally fail to facilitate a close and continuing relationship with the other parent.”
Raczkowski challenges this finding by highlighting record evidence that Correll sometimes
communicated by yelling and swearing. Other evidence, however, supported that Raczkowski
also engaged in rude and intemperate communication. Raczkowski further maintains that Correll
had previously prevented him from exercising parenting time, initiated two meritless CPS
investigations, and withheld medical information concerning OR.
The trial court acknowledged the parties’ intermittent difficulties with communication but
found no reason to believe that the past problems would continue. We defer to the trial court’s
credibility determinations. Fletcher, 447 Mich at 890. The evidence supports the parties’
equality regarding this factor.
MCL 722.23(k) addresses domestic violence, requiring the court to consider this factor
“whether the violence was directed against or witnessed by the child.” The trial court cited
testimony indicating that McCarthy had assaulted the boyfriend of his ex-girlfriend and that OR
had been “bitten numerous times at [Raczkowski’s] home.”5 The court concluded, “nothing was
presented to justify the court in finding that this factor favors one party over the other. This
factor is equal.”
The trial court apparently concluded that McCarthy’s prior assaultive act did not
constitute domestic violence under MCL 722.23(k). The term “domestic violence” is not defined
in the CCA, and we have located no authority that would support a conclusion that McCarthy’s
act may be correctly characterized as falling within the ambit of this factor, given that it occurred
outside of OR’s presence and was neither directed against nor witnessed by the child.
Accordingly, we discern no error.6
4
In relation to factor (i), the court noted that it interviewed the child and took her expressed
preference into consideration. Raczkowski does not challenge the court’s treatment of this
factor.
5
During the fall of 2007, Raczkowski’s stepson, who is autistic, bit OR more than 12 times over
the course of one week. The biting resulted in a CPS investigation which was closed as
unsubstantiated.
6
This is not to say that McCarthy’s assaultive behavior bears no relevance to a custody
determination. As discussed next, factor (l) permits a trial court to consider evidence of this
nature.
-15-
The last best-interest factor, (l), concerns “any other factor considered by the court to be
relevant to a particular child custody dispute.” In addressing this factor the trial court considered
Raczkowski’s argument that Correll “has chosen her boyfriend over [OR],” failed to address her
mental health issues, and never acknowledged that McCarthy’s abuse or neglect caused HH’s
death. The trial court commenced its factor (l) analysis by summarizing as follows the DHS
workers’ testimony:
Jessica Szczerowski, Montcalm Co. Children’s Services Worker, . . . stated that
the parent/agency agreement provided that the mother was to have a
psychological exam and follow all recommendations and take a parenting class.
She testified that her assessment was that [Correll] did not make enough progress
and that she still has concerns about her emotional stability. Ms. Szczerowski
also testified that reunification was prevented because [Correll] did not accept
responsibility for her child’s death. This court never heard from this witness what
she needed to do to “accept responsibility” and no service plan formulated by
DHS or payment for counseling was occurring. The court presumes, but is not
certain because she never said so, that she wanted some affirmative statement
from [Correll] that that her boyfriend was responsible. [Correll] testified that she
was never told by DHS that if she wanted custody of [OR] back she needed to
part ways with Mr. McCarthy and that if that would have been a condition, she
would have parted ways. This witness, during cross examination, said she
personally supervised visits with [OR] and her mother and that these visits were
always appropriate and they were very bonded with one another. Further, that
“[OR] continued to ask when she could go back to Mom after placement with
Dad”. In March of 2012, Ms. Szczerowski left the case and replaced by a CPS
worker Kristina Syjud who testified that she was assigned to the case because her
supervisor “felt that a fresh perspective was needed.” No explanation was given
as to what that meant. She testified that the mother’s drinking and emotional
stability were her primary concerns. She also said that the father has a very clean
home, that [OR] has a strong bond with her mother and that the mother has not
expressed any concerns about [OR’s] care while in her father’s care and that the
mother said that they actually co-parent fairly well together.
The trial court then turned to “the alleged inconsistencies that surrounded the
comments/statements of the mother and . . . McCarthy” regarding the circumstances of HH’s
death. The court determined that it would not be “instructive to attempt to reconcile” the
conversations and instead elected to address “those facts which are conclusive to this court as
they were evidence presented in this proceeding[].” The trial court summarized McCarthy’s
testimony and Mohr’s opinons, concluding as follows:
This court believes that Mr. McCarthy failed to keep a watchful eye on [HH], that
as a result she accidently drowned, and he doesn’t have the courage to admit it.
Shame and guilt would naturally flow from such an event, and perhaps such
emotions are too much for him to own up to. The court, however, does not draw
the conclusion that his failure to admit fault compels the finding that the mother is
an inappropriate custodial parent and whose home is an unsafe environment for
[OR] given her age.
-16-
Raczkowski contends that the trial court’s emphasis on the accidental nature of HH’s death
ignores McCarthy’s culpability, the risk that he poses to children, and the significance of
Correll’s election to remain with McCarthy despite those risks.
The trial court’s analysis of factor (l), a “catch-all” provision, reflects several
fundamental misapprehensions of the trial evidence. The trial court found that neither
Szczerowski nor Syjud explained how or why Correll should have “take[n] responsibility” for
HH’s death and found that had this message been effectively communicated, Correll would have
parted ways with McCarthy. However, both witnesses worked closely with Correll following
HH’s death and both expressed concern that Correll never acknowledged or recognized that
McCarthy’s negligence likely caused HH’s death. Syjud testified that Correll had voiced no
regret about leaving HH with McCarthy, and declared that even in retrospect, she would do the
same thing.
Szczerowski indicated that reunification between Correll and OR had stalled due to “the
lack of accepting responsibility for why her children came into care, you know, her child had
died in the care of her boyfriend that she trusted . . . with her daughter.” She pointed out that
Correll had “allow[ed] somebody that she had met just for a couple of months take care of her
children which ultimately led to medical neglect and the death of her child.” Syjud similarly
explained:
And our concerns with Ms. Correll remain the same that she still does not take
responsibility for the abuse and neglect or understand that it was abuse and
neglect that occurred that brought her children into care. And she doesn’t
understand that medical attention was needed while her daughter, [HH], was in
the care of Mr. McCarthy, and that that failure led up to her death. And until she
understands and takes responsibility for the reasons her children entered care, I
don’t feel like she’s able to protect her children in the way that she would need to
be able to.
Syjud later reiterated that Correll:
does not seem to take responsibility or understand that Mr. McCarthy needed to
seek medical attention and has stated that she doesn’t feel like he did anything
wrong in those instances and that if she had to do it all over again, she would do
the same things leaving her daughter in Mr. McCarthy’s care where he did not
appropriately seek medical attention after a drowning or near drowning that then
resulted in her youngest daughter’s death.
Consistent with this testimony, at the custody trial Correll disavowed that HH had drowned and
voiced disbelief of Dr. Mohr’s conclusions. Correll further denied “any concerns” about leaving
McCarthy with her children, averring, “I would do it; I would leave any of my children with
him.” The trial court determined that because McCarthy’s negligence rather than any on the part
of Correll caused HH’s death, McCarthy’s actions did not render Correll’s home “an unsafe
environment” for OR.
-17-
In every custody dispute “the overwhelmingly predominant factor is the welfare of the
child.” Heid, 209 Mich App at 595. The issues raised by Raczkowski with regard to factor (l)
involved OR’s safety if allowed to return to Correll and McCarthy’s custody and care. As the
statutory best interest factors do not specifically address the risks of physical harm or medical
neglect that may attend one parent’s home environment, the trial court appropriately engaged in
a safety analysis pursuant to factor (l).7 Although the trial court determined that McCarthy had
not deliberately injured HH, it failed to address whether McCarthy’s previous actions, including
his admission to having assaulted his ex-girlfriend’s partner and his failure to obtain medical care
for HH, created a safety risk for OR. Given Correll’s clearly stated intent to remain with
McCarthy and to allow him to care for OR, factor (l) required the court to consider and carefully
assess whether, given McCarthy’s record of child neglect and violence, he could safely care for
OR when tasked with this responsibility.
While a trial court’s exercise of discretion in custody disputes must be afforded great
deference, the evidence in this case clearly preponderates against the trial court’s factual findings
with regard to several factors that concern OR’s safety. Record evidence concerning factors (d)
and (e), the permanence of a family home, (g), the parties’ mental health, and (l), which
subsumes safety considerations not included in the other best interest factors, substantiated that
in Correll’s custody OR potentially faced risks that were either ignored or inappropriately
minimalized by the trial court. Because the great weight of the evidence supported that the
parties were not equal regarding these factors, we remand for a reevaluation of the custody
determination. On remand, the trial court should consider up-to-date information in reviewing
these factors, as well as any new information brought to the court’s attention involving the other
best interest factors.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Elizabeth L. Gleicher
7
The parenting time statute, MCL 722.27a(6)(c), provides that a court may consider whether
there is a “reasonable likelihood of abuse or neglect of the child during parenting time.”
-18-
STATE OF MICHIGAN
COURT OF APPEALS
BRYAN MICHAEL RACZKOWSKI,
UNPUBLISHED
November 14, 2013
Plaintiff/Counter-DefendantAppellant,
v
No. 313423
Mason Circuit Court
LC No. 07-000354-DM
ASHLEY DAWN CORRELL, f/k/a ASHLEY
DAWN RACZKOWSKI,
Defendant/Counter-PlaintiffAppellee.
Before: SAAD, P.J., and K. F. KELLY and GLEICHER, JJ.
SAAD, P.J. (concurring)
I concur in the result only.
/s/ Henry William Saad
-1-
STATE OF MICHIGAN
COURT OF APPEALS
BRYAN MICHAEL RACZKOWSKI,
UNPUBLISHED
November 14, 2013
Plaintiff/Counter-DefendantAppellant,
v
No. 313423
Mason Circuit Court
LC No. 07-000354-DM
ASHLEY DAWN CORRELL, f/k/a ASHLEY
DAWN RACZKOWSKI,
Defendant/Counter-PlaintiffAppellee.
Before: SAAD, P.J., and K. F. KELLY and GLEICHER, JJ.
K. F. KELLY, J. (concurring in part and dissenting in part).
While I concur with the lead opinion’s conclusion that any error surrounding the
determination of the child’s custodial environment was harmless, I cannot agree that the trial
court erred in its factual findings as to the best interest factors set forth in MCL 722.23. Because
the trial court’s factual findings were not against the great weight of the evidence and the trial
court properly exercised its discretion on the ultimate custody issue, I would affirm. In ordering
that the matter be reversed, I believe that the lead opinion fails to give proper deference to the
trial court’s thoughtful and deliberate consideration of the factual issues surrounding this custody
dispute.
I. PROPER STANDARD OF REVIEW
Under the great weight of the evidence standard, a trial court’s determination as to each
of the best interest factors should be affirmed and “a reviewing court should not substitute its
judgment on questions of fact unless the factual determination clearly preponderates in the
opposite direction.” Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010) (internal
quotation marks removed). As best explained by Justice Brickley:
The Child Custody Act provides that findings of fact in child custody
cases are reviewed under the “great weight of evidence” standard. When the
Legislature enacted the custody act it presumably used the phrase, “against the
great weight of evidence,” with knowledge of its existing meaning and with intent
that the phrase maintain its existing meaning. “Against the great weight of
evidence” was defined by Murchie v Standard Oil Co, 355 Mich 550, 558; 94
-1-
NW2d 799 (1959). The Court explained that a reviewing court should not
substitute its judgment on questions of fact unless they “clearly preponderate in
the opposite direction.” The court should review “the record in order to determine
whether the verdict is so contrary to the great weight of the evidence as to
disclose an unwarranted finding, or whether the verdict is so plainly a miscarriage
of justice as to call for a new trial....” Id.
Although the great weight standard traditionally is applied in the context
of granting and denying new trials, the Legislature’s adoption of that standard for
appellate review of child custody orders reasonably furthers its express intent to:
“expedite the resolution of a child custody dispute by prompt and final
adjudication....” In custody trials, the trial judge is the finder of fact. Thus, when
an appellate court reviews a trial judge’s findings, it acts as the functional
equivalent of a trial judge reviewing the findings of a jury. Therefore, the great
weight standard, which is the standard by which jury findings are reviewed, is
also a logical standard by which to review findings of a trial judge. The great
weight standard of review allows a meaningful yet deferential review by the Court
of Appeals. A more deferential standard, such as “insufficient evidence” or
“supported by competent, material, and substantial evidence,” could effectively
immunize the trial judge’s fact finding in contravention of a child’s best interests.
In the context of child custody cases, there are findings of ultimate facts,
i.e., a finding regarding each factor, and there are findings of ordinary or
evidentiary facts. The great weight of the evidence standard applies to all
findings of fact. Thus, a trial court’s findings on each factor should be affirmed
unless the evidence “clearly preponderates in the opposite direction.” Murchie,
supra at 558[]. [Fletcher v Fletcher, 447 Mich 871, 878-879; 526 NW2d 889
(1994) (emphasis added; footnote and some citations omitted).]
In determining whether the great weight of the evidence supports a trial court’s findings, this
Court “defer[s] to the trial court’s credibility determinations given its superior position to make
these judgments.” Shann v Shann, 293 Mich App 302, 305; 809 NW2d 435 (2011).
The lead opinion, in repeatedly substituting its own judgment for that of the trial court in
this case, fails to adhere to this standard.
II. FACTORS (D) AND (E)
MCL 722.23(d) requires a trial court to consider, evaluate and determine: “[t]he length of
time the child has lived in a stable, satisfactory environment, and the desirability of maintaining
continuity.” As to this factor, the trial court concluded:
[The child] lived with her mother up until February 2011 when her sister died.
There were apparently no problems up until that time that prompted the father to
take any action to alter the custody arrangement. The father has a wife who has
two children from a previous relationship and a son together. There was no
-2-
testimony that the father’s home is an inappropriate environment. This fact is
equal.
MCL 722.23(e) requires a trial court to consider, evaluate and determine: “[t]he
permanence, as a family unit, of the existing or proposed custodial home or homes.” The trial
court concluded:
[t]he father is has [sic] been in a relationship with his wife since 2007 and the
mother has been in a relationship with her boyfriend for approximately two years.
The Department of Human Services has overseen the residences of both and it
was testified to that both are appropriate. This factor is equal.
The lead opinion analyzes these two factors together and concludes that “[t]he great
weight of the evidence supports that Correll’s living arrangements were markedly less stable
than those of Raczkowski,” focusing on the number of homes the mother lived in following the
parties’ separation. Infra, p 19. The lead opinion concludes that:
These facts do not support the trial court’s conclusion that the parties’
home presented equal opportunities for permanence or stability. Correll’s
frequent moves and the apparent impermanence of her relationships contrast
markedly with the stability and continuity of Raczkowski’s home environment.
Furthermore, Correll’s decision to remain with McCarthy potentially subjected
her to further scrutiny by the DHS, as explained by the DHS caseworkers. [Infra,
pp 19-20.]
The lead opinion cites “apparent impermanence of [the mother’s] relationships” and, in the very
same breath acknowledges the permanence of the mother’s relationship with Matt, which the
lead opinion finds untenable under the circumstances. Additionally, although the lead opinion
worries about whether DHS would take additional steps against the mother, the court in
Montcalm dismissed the juvenile case and the child was no longer a temporary ward. Moreover,
as will be discussed at further length below, the trial court had assured itself that the child was
not at risk of harm in her mother’s care regardless of the mother’s continued relationship with
Matt.
The trial court’s findings were not against the great weight of the evidence. The evidence
clearly supported a finding that the child enjoyed a stable and loving situation with her mother
before HH’s untimely death and the resultant proceedings. The evidence further supported a
finding that the mother had enjoyed a stable environment for the preceding two years. Factor (e)
focuses on the permanence, not the acceptability, of the home. Ireland v Smith, 451 Mich 457,
464; 547 NW2d 686 (1996). The trial court apparently “discern[ed] no significant difference
between the stability of the settings proposed by the two parties.” Id. at 465. It is not for us to
second-guess a finding for which there is record evidence.
III. FACTOR (G)
MCL 722.23(g) requires a trial court to consider, evaluate and determine: “[t]he mental
and physical health of the parties involved.” The trial court found as follows:
-3-
The testimony provided that both parties are in good physical health and
there was testimony regarding the mental health of the mother. The mother’s
counselor, Sue Pabst, testified that she diagnosed the mother with post-traumatic
stress disorder. It is of no surprise to this court that a parent who suffers the
deaths of two young children within a 12 month period of time would be so
diagnosed. Counselor Pabst said that the deaths of her children together with the
legal proceedings which followed “compounded her problems”. The mother
called this counselor in May of 2011 voluntarily and she said the mother has made
good progress in dealing with the trauma in her life and that she had no concerns
with Olivia being back in her mother’s care. The dispositional review order
issued by the Montcalm County Probate [Court] following its hearing on May 7,
2011, provides in paragraph 8 that the mother “has complied with the case service
plan date 2-7-12 and met all recommendations contained in her psychological
evaluation and shall continue to attend individual counseling with Transitions”.
The court also ordered that there would be no case service plan for the mother at
this time and the court commented in the transcript marked Exhibit 5 that “no case
service plan has been ordered for several months now”. Apparently, DHS was
not concerned that any psychological issues continued to exist. This factor is
equal.
The lead opinion disagrees with this assessment of the evidence:
The great weight of the evidence contradicts the trial court’s finding that
the DHS lacked concerns regarding Correll’s “psychological issues” and that
Pabst had given Correll a clean bill of mental health. Szczerowski specifically
expressed “concerns . . . based on my review of the psychological assessment and
the emotional stability and the lack of counseling that she has attained.” Syjud
testified that although the probate court ceased ordering Correll to comply with
her service plan, the DHS continued to recommend that she participate in
counseling and in random drug screening based on her history of getting drunk or
high on a weekly basis. Pabst, too, recognized that Correll had a history of
drinking to excess. Although Correll had made therapeutic gains, Pabst
recommended continued counseling. No evidence supported that Raczkowski
suffered from any physical or emotional health problems.
While the trial court apparently found Pabst more credible that Syjud or
Szczerowski, even Pabst’s testimony support that Correll’s on-going emotional
issues remained unresolved and that she needed additional therapy. The great
weight of the evidence contradicted the trial court’s conclusion that Correll had no
ongoing psychological problems, thus render the parties equal on this factor.
[Infra, pp 21-22.]
This is an example of the lead opinion substituting its judgment for the trial court. The
lead opinion clearly concedes that the trial court credited Pabst’s testimony. Instead of stating
that Pabst’s testimony was not worthy of belief (because the lead opinion cannot make such
credibility determination), the lead opinion misstates Pabst’s testimony and suggests the
-4-
testimony somehow buttresses the testimony of the case workers. Nothing could be further from
the truth.
First, the mother’s alleged substance abuse is a red herring. The mother and Pabst both
acknowledged that the mother had fallen into a pattern of drinking to excess on Thursdays.
There is absolutely no record evidence that the mother failed to heed her counselor’s advice and
refrain from doing so.
Second, the trial court judge expressly questioned Pabst about the workers’ concerns that
the mother did not participate in Dialectical Behavioral Therapy:
THE COURT: Okay. This Dialectical Therapy.
THE WITNESS: Dialectical Behavioral Therapy, DBT.
THE COURT: One of the witnesses from DHS, Jessica Szczerowski,
something along those lines, she, she testified that it addressed day-to-day issues,
individual and group therapy; does that sound accurate?
THE WITNESS: It’s, it can be a part of Dialectical Behavioral Therapy.
It’s pretty popular in Community Mental Health.
THE COURT: And she also indicated that, that the mother, Ashley, said
she resisted or refused to participate because she didn’t agree with the
psychological exam.
They were disappointed that she didn’t take part in this Dialectical
Therapy, but you’re saying that it’s the wrong medicine basically, aren’t you?
THE WITNESS: I mean I’ve not saying that it wouldn’t have been at all
effective, but it wasn’t, certainly wasn’t what I thought that she, the type of
modality that I thought she needed.
THE COURT: It wouldn’t be your first choice of therapy then?
THE WITNESS: It would not.
THE COURT: Okay. And then –
THE WITNESS: And –
THE COURT: -- and why is that?
THE WITNESS: Because I’m dealing with PTSD and not Borderline
Personality Disorder.
Third, the trial court in no way gave the mother “a clean bill of health.” Pabst did not
express that the mother was fully healed; she only reiterated her opinion that the mother posed no
risk to the child:
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Q. [by mother’s attorney]. And in your opinion is there some point in
therapy that she needs to get to in order for Olivia to be safe in her care?
A. Olivia’s always been safe in her care.
Q. Okay. Do you have any concerns about, given Ms. Correll’s mental
status, do you have any concerns about Olivia being safe in her care?
A. None.
Q. Do you, have you seen any evidence of any psychotic feature or
psychotic behavior from Ashley?
A. No.
Q. And are any of her, her mental health diagnosis, anything that would
negatively affect her ability to parent her child?
A. I’m thinking. I don’t see it, no.
Q. Do you have concerns that Ashley has any substance abuse addiction
problems?
A. No.
Q. Is that a concern at all for Ashley?
A. Had it been, or is it now?
Q. Is it now?
A. No.
Q. And what do you recommend for Ashley’s further treatment?
A. She’s going to be having to grieve this for a long time so it’s I really
work off of the belief system that therapy works best when it is voluntary. And so
we have really kept that very loose as far as when as needed type of thing. So
she’s been very free and willing to always make contact when hard things come
up. I don’t want to create a dependence therapeutically either, but she’s probably
got a good two years of kind of coming in for basic check-ins if you will.
The mere fact that the mother will undoubtedly need to continue with therapy does not, in and of
itself, compel a finding that her mental health was a serious concern. Had the mother’s trauma
gone untreated, that would be another story.
Finally, the trial court personally questioned Pabst at length about DHS’s concern that the
mother continued her relationship with Matt. Given the “backdrop [of this case] does that cause,
would you [be] concern[ed] as a therapist about the proper discharge of protecting the child?”
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Unequivocally, Pabst testified “I’m not concerned; I’m not concerned.” Pabst testified that “[i]f
Ashley for a second thought that her children were in any kind of threat or harm or danger with
who she’s with, she’s out of there, she’ll leave which is what she’s proven before.”
The trial court’s findings as to this issue were not against the great weight of the
evidence.
IV. FACTOR (L)
MCL 722.23(l) requires a trial court to consider, evaluate and determine: “Any other
factor considered by the court to be relevant to a particular child custody dispute.” The trial
court’s treatment of this issue spanned four pages of its opinion and order. Were it not so
lengthy, I would recite it verbatim as evidence of the trial court’s thoughtful consideration of the
relevant facts.
The trial court was well aware of the pertinent issue:
Plaintiff contends that the Defendant has chosen her boyfriend over [the child]
and that she has not addressed her mental health issues as set forth by the
psychologist in the psychological evaluation. Further, that she will not
acknowledge that abuse or neglect occurred by the person she entrusted to care
for her child, thus resulting in her daughter’s death and that even if she were no
longer with her boyfriend Mr. McCarthy, her judgment and ability to make
important decisions regarding the care and well-being of [the child] is impaired.
The trial court then went on to review the concerns of the DHS workers and Dr. Mohr
regarding the sister’s cause of death. The trial court concluded:
This court believes that Mr. McCarthy failed to keep a watchful eye on [HH], that
as a result she accidently drowned, and he doesn’t have the courage to admit it.
Shame and guilt would naturally flow from such an event, and perhaps such
emotions are too much for him to own up to. The court, however, does not draw
the conclusion that his failure to admit fault compels the finding that the mother is
an inappropriate custodial parent and whose home is an unsafe environment for
[the child] given her age.
The lead opinion writes:
The trial court’s analysis of factor (l), a “catch-all” provision, reflects
several fundamental misapprehensions of the trial evidence. The trial court found
that neither Szczerowski nor Syjud explained how or why Correll should have
“take[n] responsibility” for HH’s death and found that had this message been
effectively communicated, Correll would have parted ways with McCarthy.
However, both witnesses worked closely with Correll following HH’s death and
both expressed concern that Correll never acknowledged or recognized that
McCarthy’s negligence likely caused HH’s death. Syjud testified that Correll had
voiced no regret about leaving HH with McCarthy, and declared that even in
retrospect, she would do the same thing. [Infra, p 25.]
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However, the lead opinion again impeaches on the trial court’s credibility determinations. The
mother testified that she was never told that she had to leave Matt. Both she and Pabst expressed
that she would have done so.
The lead opinion further writes:
The issues raised by Raczkowski with regard to factor (l) involved OR’s safety if
allowed to return to Correll and McCarthy’s custody and care. . . .Although the
trial court determined that McCarthy had not deliberately injured HH, it failed to
address whether McCarthy’s previous actions, including his admission to having
assaulted his ex-girlfriend’s partner and his failure to obtain medical care for HH,
created a safety risk for OR. Given Correll’s clearly stated intent to remain with
McCarthy and to allow him to care for OR, factor (l) required the court to
consider and carefully assess whether, given McCarthy’s record of child neglect
and violence, he could safely care for OR when tasked with this responsibility.
[Infra, pp 26-27.]
I would first note that this child is not being returned to McCarthy’s care; rather, in this custody
dispute between a mother and a father, the issue before the trial court was the child’s best interest
as between placement with either parent. Additionally, the trial court absolutely understood that
the seminal issue in this case was the child’s protection and welfare and whether she would be
safe in her mother’s care. That the trial court’s conclusion is not as the lead opinion would like
is of no consequence.
The trial court’s finding on this issue was not against the weight of the evidence.
V. WEIGHING THE FACTORS
Even if one or more of the above factors should have weighed in favor of the father, I
note that “[a] court need not give equal weight to all the factors, but may consider the relative
weight of the factors as appropriate to the circumstances.” Sinicropi v Mazurek, 273 Mich App
149, 184; 729 NW2d 256 (2006). Throughout the trial court’s opinion and order, one can see
that the trial court feared granting the father custody where it was clear that the father was not
adequately concerned with the child’s emotional and mental health. In finding that factor (b)
favored the mother, the trial court noted “the loss of two siblings has greatly impacted Olivia and
it is clear to this court that the father does not appreciate the enormity of her loss and the absolute
necessity of professional emotional intervention. He was in the position to do something about it
and he did not and has not.” This finding is supported by the record evidence.
The father initially testified that the child had not been in counseling because of
insurance. But mother’s counsel pressed the issue:
Q. [by mother’s counsel]. I’m going to hand you a document and see if
that can refresh your memory as to the number of sessions total that Olivia has
had in counseling?
A. Okay.
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Q. How many sessions total has Olivia had in counseling?
A. This, this paper right there says nine.
Q. Okay. Do you have any reason to dispute that?
A. No, ma’am.
Q. And so that would be two recently, seven sometime last year?
A. Okay.
Q. And so your, your statement is that you believe your insurance covers
twenty?
A. Well, see we were doing our, our visits or sessions with our son, [].
We were doing it at the same time for scheduling reasons to make it easier for
everybody to be able to go. And his sessions were up and school was beginning
so it was, it’s just the way it worked out.
Q. Okay. So [he] didn’t have -A. Okay. [His] insurance didn’t have any sessions left.
Q. So [the child] quit going?
A. Yes.
The trial court then pressed the issue:
THE COURT: Was it twenty visits a, isn’t there twenty visits for each
child?
THE WITNESS: Yes.
THE COURT: So you only went seven times out of twenty opportunities?
Why?
THE WITNESS: She was doing well and it, it –
THE COURT: Do you have a written report from the counselor saying
she was doing well and didn’t need to come anymore?
THE WITNESS: I do not, sir.
THE COURT: So you made a decision yourself to stop?
THE WITNESS: Yeah, yes.
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The father continued to explain his reasoning for not having the child in counseling, in
spite of her kindergarten teacher’s strenuous suggestion that it was needed:
THE COURT: Just to make sure I’ve got, my notes are correct, Mr.
Raczkowski, so you terminated the Center for Human Potential. So you went to
CMH, and they said she doesn’t need counseling?
THE WITNESS: Correct.
THE COURT: So there’s no problem? She’s suffering from no aftereffects from the death of her siblings?
THE WITNESS: Correct.
THE COURT: Okay. And who was the counselor at Mental Health?
THE WITNESS: I can’t recall the name exactly. It started with a C.
THE COURT: You don’t know their name? Male, female?
THE WITNESS: I believe it was a female.
THE COURT: So you never met the person?
THE WITNESS: No, I did not. The appointment was while I was at
work.
THE COURT: And how did she get there?
THE WITNESS: My wife.
THE COURT: Okay. and so do you know, we don’t know, do we, if the
counselor was given any background information as to what may or may not have
been troubling [the child].
THE WITNESS: Yes, my wife explained the situation to her.
THE COURT: You weren’t there so you don’t know what the
conversation was; do you?
THE WITNESS: No, sir.
THE COURT: And so after all that [the child’s] been through, CMH,
according to your wife, said that she has no need that need to be addressed?
THE WITNESS: Correct.
This, in spite of the teacher’s testimony that the child cried four out of five days a week, was
extremely clingy, and was unable to make it through the day without a nap.
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THE COURT: Okay. Are you concerned or troubled by the comments of
her teacher, Karen Morin, who is with her, of course, hours every day, she
probably spends more time with her than you for good reason because that’s
where she’s at every day, that she felt grief counseling would be advisable
because “she cried all the time and it would last for a long period and it definitely
interfered with her education.” Doesn’t that concern you?
THE WITNESS: Yes, it does.
contributed to this behavior.
But I also believe that her methods
THE COURT: That Ms. Morin’s did?
THE WITNESS: Correct.
THE COURT: What methods are those?
THE WITNESS: I believe, and the counselor at Community Mental
Health also agreed with this, -THE COURT: Oh, the counselor you never talked to?
THE WITNESS: Yes.
THE COURT: Okay. Go ahead.
THE WITNESS: -- that once you start showing a child that you can, you
can exhibit this type of behavior and you’ll get a result from this type of thing,
that it will begin to be taken further and further and further.
I believe the record evidence compels this Court to affirm the trial court’s findings and
ultimate decision. I believe the lead opinion has substituted itself as fact-finder in contravention
of this Court’s function. I would affirm.
/s/ Kirsten Frank Kelly
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