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### STATE OF MICHIGAN

COURT OF APPEALS

KRISTEN ALISE FALCONER,

Plaintiff-Appellant, FOR PUBLICATION December 22, 2015 9:00 a.m.

v No. 323392 Calhoun Circuit Court CHADWICK JASON STAMPS a/k/a CHAD MEYERS, LC No. 2013-003920-DC

Defendant, and

DONNA BRYANT WEDDINGTON,

Intervener-Appellee.

Before: G ADOLA , P.J., and K. F. K ELLY and F ORT H OOD , JJ.

K. F. K ELLY , J.

In a three-way child custody di spute involving plaintiff mothe r, Kristen Alise Falconer (plaintiff), defendant father, Chadwick Jason Stamps a/k/a Chad Meyers (defendant), and paternal grandmother, Donna Bry an Weddington (Intervener), plai ntiff appeals as of right because, while plaintiff was awarded sole physical and legal cu stody of the child, the order included extensive grandparenti ng time with Intervener. We vac ate that portion of the trial court’s order that granted Intervener grandparenting time where the issue of grandparent visitation was not properly be fore the trial court.

I. BASIC FACTS AND P ROCEDURAL HISTORY

A. PROBATE COUR T PROCEEDINGS

On October 14, 2010, Intervener filed a petition for appointme nt of a full guardianship of the two-year-old child under MCL 700.5204(2). Intervener told the probate inv estigator that plaintiff and defendant lived with Intervener before the child was born and that all three continued to live with Intervener until defendant moved to Ariz ona to attend college in February 2010 and plaintiff followed in April 2010. Intervener reported that plaintiff and defendant supported the guardianship and th at the child had frequent cont act with plaintiff and defendant-2- via telephone calls and Skyping, as well as visits. Intervener was granted full guardianship on November 29, 2010.

Intervener filed an annual re port with the court on December 2 , 2011, indicating that the parents had now returned to Michigan but that the “parents stil l lack necessary skills to parent child” and that “neither parent i s a suitable guardian for [the child].” The report indicated that the “child loves parents and vi ce versa” and that visits took p lace “as much as possible.”

Intervener filed her next annual report on November 30, 2012. She reported that plaintiff had moved out of the home in November 2012 and her whereabouts were “unknown.” Intervener requested that plain tiff’s future visits be supervis ed by her.

On April 9, 2013, plaintiff petitioned to terminate the guardi anship. The trial court appointed the child a guardian ad litem (GAL), David Marsh. Marsh’s September 20, 2013 report provided:

A. The minor has essentially liv ed with the guardian, her gran dmother, Donna Weddington, all her life.

B. The mother, Kristen Falconer, had a physical abusive and su bstance abusive relationship with the son of Donna Weddington until som etime in November 2012 when she moved back to Hastings to be with her fa mily in order to get her life back together.

Ms. Falconer has apparently made great strides in that directio n in that she is employed, substance free and has stable housing.

C. The father, Chadwick Stamps, while living in the same house hold with his daughter, has had little to do with raising her.

D. The guardian/grandmother has done a good job in raising [th e child].

E. Both parties blame the other for the inconsistent contact b etween [the child] and her mother.

F. The minor child desire[s] to remain living with the guardian/grandmother.

G. Child Protective Services makes no specific recommendation, stating that both parties are appropriate.

This writer believes that Krist en Falconer has done a great jo b in getting her life together. However, she states that she has only been clean since November 2012 and did so on her own, without any profession[al] help or support.

In addition, there has not been a lot of contact between Ms. F alconer and her daughter . . .the blame for which is unclear.-3- The undersigned recommends that this Court institute a specifi c plan in order to better prepare the mi nor for potential reunification w ith her mother.

The probate court set forth a court structured plan on Septemb er 23, 2013, requiring plaintiff to, among other things , submit to drug screening and participate in supervised visitation. The plan included a propose d date of March 24, 2014 for termina ting the guardianship.

Intervener filed her next annual report on December 6, 2013, s hortly after the structured plan was implemented. In the re port, Intervener indicated that defendant lived in the same home as the child and saw her every da y: “[The child] loves being w ith her dad! She grows more fond every day. She is completely not interested/reluctant to see h er mother. She cries every time!” Intervener reported that while “mother attends 2 hour meeting/v isit once a week with [the child], [the child] does NOT enjoy, is v ery sad + disheartened by each visit. [The child] should not be forced to have a relationship with her mother (illegible)! [Th e child] should continue counseling + perhaps Miss Falcon er could begin attending. [The child] has been abandoned by her mother 5 times + she is reluctant and afraid.” Intervener requested that the guardianship continue because “the father would lik e to file for full custody but does not ye t have funds to hire attorney.”

A couple of days later, Intervener filed a motion to have “ano ther, more appropriate supervisor be chosen” for future supervised visits. Department of Health and Human Services (DHHS) worker Candace Stack had a llowed plaintiff’s grandmother , Connie Falconer, to act as supervisor during plaintiff’s vi sits with the child. Intervene r complained that Falconer had once tried to “kidnap” the child in 2009 “after a high speed chase.” Included with the motion was a letter Intervener wrote to Judge Michael Jaconette on November 29, 2013, asking how defendant “can apply for custody without an attorney. He has always had physical custody. He has never abandoned her and she adores him.” This, in contrast with plai ntiff who has abandoned the child “5 times over the last five year s” and “when she did reside wit h us there was little to no parenting involved.” Intervener also included screen shots of email exchanges she had with Stack, even though the exchanges did not cast Intervener in a p ositive light. The exchanges revealed that Intervener had no intention of presenting the chi ld for supervised visits with plaintiff if those visits incl uded Falconer. The exchanges als o show that Intervener did not agree that plaintiff should see th e child twice a week.

In a December 1, 2013 report, the child’s counselor, Kathleen Keeder, noted that, although the child had been initi ally stand-offish with plainti ff, “Kristen has followed through with all the recommendations and suggestions made to her to hel p with the bonding process and help [the child] to feel at ease during the sessions. Kristen has been empathic with [the child], she has validated her feelings even when they are hurtful and h as been emotionally supportive. It is evidence to this clinician that [the child’s] Guardian is not in support of [the child] being reunited with her mother and this is having an adverse affect [ sic] on [the child].” In Keeder’s opinion, plaintiff demonstrated an ability to provide a safe an d stable home for the child and the two needed to be reunited.

On December 11, 2013, Candace Stack filed a report on the case . Stack, like Keeder, reported that plaintiff was doing a good job at her visits with the child, even though the child would say things like “I hate you” and “you’re not my mom.” St ack reported that not only did Intervener make scheduling visits difficult, but Intervener was also a distraction to the child by-4- waiting outside of the visitati on room or in the bathroom down the hall. The child, knowing Intervener was outside the door or in the bathroom, would ask t o use the bathroom several times. Intervener refused to leave the area until security guards got involved. Once Intervener was out of the area, the child bega n to warm up to and interact with pl aintiff. Stack concluded:

[The child’s] emotional well-being is being jeopardized living with Donna Weddington. Ms. Weddington has th warted any and all efforts of reunification between the child and her mother. It is believed that Ms. Wedd ington is feeding negative thoughts to [the child] about her mother, Kristen Falc oner, instead of being supportive of the relations hip. It is a travesty that th is reunification period has not been more successful, but it is this worker’s opinion t his is solely due to Ms. Weddington’s attitudes and actions. This worker does not anticipate that Ms. Weddington will ever support the reunification of [the child] a nd her mother.

In the meantime, Stack noted that plaintiff has “done an outstanding job recovering from her drug use and is ready to be a full time mother. She has awesom e family support in the Hastings area. There is no reason to cont inue this guardianship, the re commendation is to terminate.”

The child’s GAL made a similar recommendation in his December 18, 2013 report:

Ms. Weddington has frequently pro crastinated and attempted to c ircumvent the arrangements made by Child Protective Services to move forward with the plan. She claims that these arrangements are detrimental to and again st the best interest of [the child]. Ms. Weddington be lieves that Kristin [sic] Fal coner doesn’t want [the child]; she is jealous of Chad Stamps and is doing this to hurt him.

It is this writer’s opinion that Donna Weddington is so desper ately afraid of losing custody of [the child] that she grasps at any straw i n the attempt to prevent termination of the guardianship. It is further my bel ief that Donna Weddington continues to attempt to undermine this process by co aching the minor.

RECOMMENDATION:

The undersigned recommends that this case continue on track to termination of the minor guardianship as the mother has done al l that is asked and required of her.

I further recommend that this Court emphasize the need for Don na Weddington to totally cooperate w ith the Court structured plan especially with the parenting time arranged by Department of Human Services under t he penalty of contempt and/or removal of the minor from Ms. Weddington.

A hearing was held on December 18, 2013. That same day, the p robate court ordered that, in light of plaintiff’s substantial compliance with the c ourt-structured plan, the termination of the guardianship “should be accelerated from the previously scheduled termination date of 3- 24-14 to an earlier date” and that “the best interests of the m inor would be served by continuing the guardianship until 1-16-14 pending completion of a modified court-structured plan which-5- will allow for unsupervised parenting time as specified in this plan and will allow for counselor(s)/therapist(s) of the minor to address with her the scheduled 1/16/14 permanent reunification of the minor with her mother.” The guardianship was terminated in a January 16, 2014 order.

B. COMPETING COMPLAINTS F OR TEMPORARY CUSTODY

Plaintiff filed her complaint for custody in the trial court o n December 23, 2013, before the order terminating the guardianship was entered. Plaintiff preemptively sought temporary custody to avoid interference by defendant or Intervener with t he guardianship’s imminent termination. The complaint sought sole physical and legal cust ody, suspension of defendant’s parenting time, and exclusion of I ntervener from any visits the child would have with defendant.

Defendant filed a motion for te mporary custody on January 8, 2 014. He was concerned that termination of the guardianship would result in the child being placed with plaintiff, who had abandoned the child and who m defendant contended was unfit.

At a January 13, 2014 motion hear ing, the trial court indicate d that it had discovered outstanding warrants for defendant’s arrest for malicious destr uction of property and home invasion. Defendant was immediately placed into police custody . Defendant was also ordered to submit to a drug test and tested positive for marijuana. Couns el for defendant nevertheless begged the trial court not to uproot the child’s life by removi ng her from Intervener’s care, especially where “we have a mother who simply left the home whe re her daughter lived went for many months without having any real meaningful contact with her daughter . . .She left the home. She made no efforts for a considerable period of time to have regular contact with the daughter.” Plaintiff’s attorney e xplained that plaintiff was f orced to leave the child in November 2012 because of the abusive situation with defendant. Plaintif f sought substance abuse counseling and had been very dili gent in trying to gain custody of the child. In fact, the only reason the probate court did not order same-day termination of the guardianship was to allow intensive services to the child to prepare her for the transiti on. Counsel believed that Intervener brought defendant to court as a proxy, pointing to the fact tha t defendant had played no part in the probate court proceedings. Citing its authority to place a child with a third party under the Child Custody Act (CCA), MCL 722.21 et seq , the trial court concluded that it would not uproot the child and left the ch ild in Intervener’s care.

Intervener filed her motion for intervention and for custody o n January 15, 2014, citing MCL 722.26b(1) (action for custody by a guardian). The trial c ourt granted the motion at a February 3, 2014 hearing.

Plaintiff moved to modify temporary custody on January 21, 201 4, citing defendant’s continuous abusive and criminal behavior and Intervener’s failu re to protect the child by essentially covering up defendant’s illegal and violent behavio r. The trial court denied the motion but modified parenting time to allow plaintiff mid-week contact and extended weekend visits to Monday mornings. The trial court also appointed the child a GAL. It refused to appoint Marsh (the child’s GAL from the probate proceeding) because of Marsh’s ex parte communication with the judge in which Marsh expressed displeasure with how the case was going. Michael Clore was named GAL.-6- C. THE CUSTODY HEARING

Defendant represented himself at the custody hearing. Importantly, at no time did defendant seek custody of the ch ild; the hearing was essentiall y between plaintiff and Intervener. At the time of the hearing, there were a number of allegations regarding defendant’s assaultive behavior. The focus was on whether the child was exposed to do mestic violence in Intervener’s home. Intervener and defendant denied that there was any domes tic violence. In contrast, plaintiff and her witnesses reported that defendant had a histo ry of abusing, not only his girlfriends, but Intervener.

Children’s Protective Services (CPS) investigator Megan Wilder testified that she received an allegation of substance abuse and physical neglect in Intervener’s home on January 13, 2014, which coincided with the hearing in which defendant w as arrested on outstanding warrants. Wilder tried visiting the home four times and left a business card. She received a voice mail on January 21 from Intervener, telling Wilder she wa s not welcome in the home and giving Wilder the name of her attorney. Wilder finally met with Intervener in February, along with Wilder’s supervisor, Chadd Hannah and ongoing worker Chris tian Giggy. Defendant was not present for the meeting. Wilder noted that Intervener’s “s tory changed several times” during the meeting. When confronted with two separate police reports regarding defendant’s criminality, Intervener either denied the incidents occurred or downplayed them. One incident involved the malicious destructio n of property and the other in volved a home invasion. CPS was concerned because the child was present for both incidents. 1

Wilder reviewed the police reports and spoke with defendant’s ex-girlfriend Alaura Haueter about “other things” in the home that concerned Wilder. Wilder ultimately concluded that Intervener failed to protect the child. A case was opened as a “category two.” Both Intervener and defendant were placed on Central Registry and th e matter was transferred to an ongoing worker for services, incl uding psychological evaluation s for Intervener, defendant, and the child. The child was not removed from Intervener’s care be cause Wilder did not “see any significant risk of harm that was an immediate threat to the ch ild.” Wilder met with the child at school and the child “seemed a little coached” and made stateme nts “I don’t usually hear a five or six-year-old say to me.”

DHHS worker Christian Giggy tes tified that he received the cas e after Wilder substantiated the allegations. D efendant was noncompliant and did not complete his psychological evaluation; Intervener and the child completed th eirs. The child was already receiving counseling with Sheri Pancost, so additional counseli ng was not ordered. Giggy was

1 The malicious destruction of property incident occurred on Feb ruary 9, 2013. Defendant was involved in a road rage incident and ripped the rear windshield wiper off of the back of another vehicle (road rage incident). The second incident occurred on June 18, 2013, when defendant went to a “friend’s” home armed with a knife to confront the fr iend about taking marijuana plants (home invasion incident). Intervener admitted that the child was present for the home invasion incident but gave conf licting statements about whether the child was present for the road rage incident.-7- led to believe that defendant was out of Intervener’s home. Gi ggy believed the child’s home with Intervener was safe, but Intervener was always reschedulin g appointments. So while Intervener was technically compliant, Giggy testified that “[t] he amount of time and energy that I’ve put into trying to make arrangements to see her, to see th e children, 2 verify their well-being, has been extensive, in my opinion.” On one unannounced visit, Giggy knocked on the door and was confident that individuals w ere there but not responding to his knocks. Intervener told Giggy that the child was unavailable for a psychological evaluation during spring break, but Giggy contacted plaintiff who was able to make sure the evaluat ion was completed. Afterwards, Intervener left Giggy a voicemail and “talked about how we fail ed to forget that she has custody and she didn’t authorize the psychological evaluation to occur and that we would be hearing from her attorney.”

Giggy observed plaintiff with the child and found her to be “v ery attentive.” He had no concerns about plaintiff’s parenting ability. Giggy noted thatwhen the child was with Intervener, she was more guarded in talking to Giggy, looking t o Intervener for reassurance. Giggy opined that “there may be some type of coaching.” In con trast, the child opened up more when with plaintiff. Giggy testified that the case would likel y close if the child was returned to plaintiff, but would remain open i f the child remained with Int ervener.

CPS outreach counselor Kathleen K eeder testified that her invo lvement in the case dated back to the probate matter. She received a referral in the pro bate case to work with plaintiff, Intervener, and the child to ease the child’s transition from l iving with Intervener to living with plaintiff. Keeder observed numer ous visits between plaintiff a nd the child. At the first visit, the child did not interact with plaintiff, saying things like “you’ re not my mom, I want to go home.” Plaintiff tried to engage the c hild, showing an enormous amount of patience and empathy, but the child would not talk to or even look at plaintiff. Keeder categorized plaintiff’s level of skill at these visits as “good” from th e very start. They met weekly and, as the sessions continued, the child warmed up to plaintiff, becoming affectionate and engagin g in activities. “[I]t seemed like a normal mother/child relations hip the way they were playing to gether.”

Keeder observed that the child would use the bathroom frequent ly during these visits and believed it was because Intervener was just outside of the room where plaintiff was visiting with the child. The workers then aske d Intervener to sit downstairs and observed that the child did not leave the room as frequently onc e she realized Intervener was n ot there. Intervener also canceled visits the child was to have with plaintiff on at least two occ asions. In Keeder’s estimation, Intervener was not interested in outreach services and refused visits Keeder planned to make to Intervener’s home; Intervener wa s “not cooperative at all.” Ke eder wanted Intervener to help the child prepare to the transition from one home to the other, but Intervener refused. In contrast, plaintiff welcomed Keeder into the home that plaintiff shared w ith her grandparents. The downstairs was a completely furni shed apartment. The child wou ld have her own room and the living arrangement was appropriate.

2 The plural use of “children” inc ludes Intervener’s teenaged daughter, Abbie.-8- Keeder previously recommended terminating the guardianship bec ause plaintiff was “at a place where she can take care of [the child], and [the child] d oes appear to have a bond with her mom and they get along great together, and so I felt that it wa s time for [the child] to go back home to her mom.” Keeder opined that plaintiff and the child “ have a very good bond. I think Kristen loves her child very much and I think [the child] loves her very much.” Because Intervener would not cooperate, Keeder never had a chance to se e Intervener interact with the child.

Ongoing CPS worker Candace Stack testified that she became inv olved in October 2013 after the court-structured plan was put into place in the proba te proceeding. Plaintiff had five drug screens between October 20 13 and December 2013, all negati ve. Plaintiff had already started counseling by her own initiative and Stack was able to obtain their re ports. Stack supervised visits with the child and plaintiff. At first, visi ts did not go well. The child was “standoffish” with plaintiff and would sit in the corner, sayin g, “You’re not my mom, I hate you.” Several of the visits were like that. Intervener had pl aced herself right outside of the visiting room instead of sitting where other people were waitin g. She would even sit on the floor. The child would ask to use the bathroom four or five ti mes and Intervener would be right there. Intervener even once waited in the bathroom. Stack ask ed Intervener if she could go run errands or wait downstairs. Inte rvener said she would go run e rrands if someone gave her a gas card. Stack asked Intervener tw o more times to please go down to the first floor. Eventually a security guard asked her to and she complied. But Intervener r eturned to the floor and had to be escorted by security. Intervene r’s teenaged daughter, Abbie We ddington, was also present during the visits.

Stack noticed that visits started to go well after Intervener was removed from the situation and plaintiff “was doi ng a fantastic job” interacting with the child. “I could see that she was a very loving, caring mother.” Parenting time was expanded to visits at plaintiff’s house on Saturdays. Intervener, who belie ved that expanded visitation w ent against court-ordered visits, was not cooperative in bringing the child for the visits. Inte rvener also objected to plaintiff’s grandparents, Connie and Donald F alconer, acting as designees f or supervised visits. Intervener told Stack that the child was “scared to death of Connie” becau se there was a high speed chase that occurred when the child was an infant. Stack noted that the child was born in March 2008 and the alleged incident occurred in January 2009 when the chil d was less than a year old. The Falconers had no criminal recor d and were not on Central Registry.
Plaintiff was fully compliant with her structured plan and Sta ck previously recommended that the guardianship end. Because Intervener would not cooper ate, Stack never had the chance to visit Intervener’s home or report who lived there. Stack re ported Intervener’s noncompliance to the probate court. Stack als o observed Intervener with a bl ack eye at a custody hearing.

Sheri Pancost testified that she was the child’s therapist. I ntervener had retained Pancost on July 3, 2013, prior to any court intervention, to help with the child’s adjustment to seeing plaintiff. Pancost noted that the child looked to Intervener f or reassurance and asked that Intervener be part of the first couple of sessions. The child reported that she wanted to live with Intervener and that she was unsure about visiting plaintiff. S he was initially angry at plaintiff. Pancost continued to see the ch ild weekly after the court becam e involved. On January 9, 2014, Pancost began joint sessions with the child and plaintiff at CP S’s suggestion. By that time, the-9- child had become more comfortabl e talking about plaintiff. Pan cost observed that plaintiff interacted with the ch ild “just the way you would expect most p arents interact. She engages with her, talks to her.” Pancost h ad no concerns about plaintiff’s parenting ability. As the visits progressed, the child was increasingly able to show plaintiff l ove and affection. The child reported that she had fun with h er cousins on plaintiff’s side of the family, but was still uncomfortable with her great grandparents. She thought they we re a little “creepy” because they were so much older. The child reported that she missed her hal f-sister, whom we will refer to as “A”. 3 The child also expressed fear of defendant on one particular incident and did not discuss him nearly as much as the other people in her life. Pancost be lieved that the incident that caused the child to fear defendant was the reason that Intervener, Abb ie and the child had to stay in a hotel just before they moved into a new house. Pancost had the impression that even when they were living together, defendant’s interaction with the child wa s limited. The child reported that defendant would yell and spend a lot of time in his room.

Pancost opined that the child was capable of making a healthy adjustment to living with plaintiff. Pancost believed thatthe child would have adjustme nt problems if someone was saying negative things about plaintiff. Pancost believed that the child was not nice to plaintiff initially because the child was afraid she would have to move. The child was afraid that plaintiff would “leave her again,” meaning leave her with people she was not comfortable with. Pancost indicated that this fear stemmed mostly from lack of interactio n with the great grandparents, but the child also referred to a “car chase.” Pancost noted that the child “has a strong bond with [Intervener]. She feels really close to her and comfortable wi th her” and it would be traumatic for the child to lose all contact with Intervener, who was the stable force in her life. “If she had visitations or something like th at still, it might lessen that impact.”

Clinical psychologist Dr. Randall Haugen testified that he eva luated the child on April 10 and 11, 2014. The child expressed ideas of being abandoned or lost and had a “vague sense of mother being unsafe.” Haugen testified that the child’s “prese ntation of the information was pretty adult-like.” She repeated ly used the word “abandonment” and said it was “bad”, but could not tell Haugen what the word meant. Haugen noted that using the word abandonment, as the child did almost 40 times, was inconsistent with a child her ag e. Haugen believed the child was repeating some adult conversati on. In terms of being condition ed, Haugen noted that the child’s interpretation of events “seemed to be what she felt that grand ma perceived also.” Haugen warned that if the negative feelings continued, it would impact the child’s function: “Children in these situations over a long peri od of time are really prone to develop emotionally behavioral difficulties” and negative statements create “a lot of anxiety and apprehensiveness just about her basic sense of stability, who s he is, where she’s going to be i n the future.”

Haugen testified that, withoutregard to intent, the child had been groomed or conditioned either directly or indirectly by Intervener. The child perceiv ed Intervener as “her psychological parent at this time,” who met her needs. She had a more confli cted relationship with her mother

3 As will be discussed in further detail below, A was defendant’ s child with his girlfriend, Alaura Haueter.-10- because she perceived plaintiff as having abandoned her and as someone who “has a lot of problems and is really bad.” The child did not believe that pl aintiff’s love for her was true love; she believed that the love she received at home was “real” love . The child said “mommy is pretending.” Haugen believed that Intervener’s statements to the child that plaintiff was the biological mom but not the real mom were “undermining.”

At the time of trial, plaintiff was 24 years old. Plaintiff t estified that she was 17 and defendant was 15 when they bega n dating. Plaintiff was not get ting along well with her stepmother and Intervener indicated that she would “love” for plaintiff to move in with them. At the time, plaintiff and defendant had been dating for approximately two months. Plaintiff described herself during that time as a “dumb, love-struck teenager.” Sh e managed to graduate from high school in 2007, but defendant dropped out.

Plaintiff became pregnant with the child in July 2007. Plaint iff, defendant, and Intervener were living in Florida at the time. They returned t o Michigan in August 2007. Plaintiff and Intervener lived i n Grand Rapids with one of Inte rvener’s friends because they had no money and needed a place to stay while Intervener found a ho me. Abbie lived in Battle Creek with a friend, and defendant lived in Hastings. Eventual ly Intervener found housing in Battle Creek and the group came back together. From December 2 006 until the time of trial, Intervener had eight different residences. Plaintiff testified that, aside from the move from Florida back to Michigan, each m ove was the result of the failu re to pay rent.

The child was born March 23, 2008. 4 Plaintiff stayed home with the child for three weeks but then went back to work as a waitress because the fami ly needed money. Plaintiff testified that, at that time, Intervener helped take care of th e child, but the primary childcare responsibility went to plaintiff.

Plaintiff testified that defendant moved down to Arizona in Ma rch 2010 to attend a mechanic’s school. Plaintiff went down a month later to visit. Intervener and defendant decided that plaintiff should stay in Ariz ona in order to help defendan t recuperate from shoulder surgery and to make sure that he did not drop out of school. Although she wanted to be with the child in Michigan, plaintiff wanted to ma ke sure defendant graduated fro m the program so that he could begin contributing to the family’s finances. The couple stayed in Arizona for approximately 16 months. They saw the child on visits and via Skype. During th is time, plaintiff believed she had a “good” relationship with Intervener. She did not feel the ne ed to delegate parental authority because she trusted Intervener. Plaintiff acknowledged that inthe time she was in Arizona, “things had kind of turned a little bit” and Intervener had pri mary care of the child. Defendant finished his program in July 2011 and the couple returned to Mi chigan that summer. Plaintiff “had no idea” about the guardianship until she left the home in November 2012.

Plaintiff acknowledged that she began abusing drugs while livi ng in Arizona. She began with the prescription drug Oxycodone. When the couple moved ba ck to Michigan, defendant

4 Plaintiff explained that the chi ld was given the last name of one of defendant’s mentors because he did not want the child to have hi s biological father’s last name.-11- started using heroin in December 2011 and plaintiff started usi ng it in April 2012. Plaintiff began working as a dancer and admitted that she “wasn’t parenti ng the way that I should have . . . I wasn’t in a good state to be a parent.” She and d efendant slept a lot and spent a lot of time in their room. Plaintiff deferred to Intervener when it c ame to the child’s care. Plaintiff and defendant would fight when they r an out of money for drugs, whi ch was nearly weekly. Intervener would take the child into another room and tell her that defendant “didn’t mean to act like that.” A number of times Intervener had to summon the pol ice, but once they got there, Intervener would tell them that everything was fine, so plainti ff followed suit. In 2009, plaintiff attempted suicide one time by taking a number of aspirin: “Bec ause Chadd had gotten into an argument with me and told me that I made everybody miserable, n obody wanted me around, [the child] didn’t need me, [the child] didn’t want me, and that I w as a horrible person and that everybody hated me and . . .being tre ated like that on a dailybasis gets to you.”

Plaintiff testified that there w as physical violence in the ho me, including pushing, kicking and hair-pulling. On one occasion defendant was at the top of the stairs and threw an old television at plaintiff, who was at the bottom of the stairs. There was physical violence almost daily; Intervener was present for it and was also a victim. Pl aintiff explained that the “littlest things” would upset defendant a nd “you never knew what was goin g to make him mad.” Plaintiff had been pushed down the stairs and had her face stom ped on. When plaintiff talked to Intervener about defendant’s beh avior, Intervener’s response mo st of the time was to tell plaintiff that she needed to learn to “not make him so mad and it wouldn’ t happen.” 5

Plaintiff explained the “kidnapping” incident. Plaintiff trie d to leave defendant in January 2009 and stayed with her grandparents for about a week. Plaintiff obtained an affidavit of parentage, thinking that she could take the child out of the Intervener’s home. Plaintiff and her grandmother, Connie Falconer, went to Intervener’s home, bu t the child was not there. Plaintiff and her grandmother waited until Intervener and defen dant left the home and followed them. Plaintiff wanted the child to have a family, so she went back to Intervener’s home shortly thereafter.

Plaintiff left Intervener’s home once and for all in November 2012. Defendant confronted one of plaintiff’s ma le friends by slashing one of h is tires and running over his leg with a car. Plaintiff went to a friend’s house and went throug h drug withdrawal. When plaintiff’s new boyfriend became abusive in December 2012, plai ntiff went to live with her grandparents. It was at that point that plaintiff decided to f ocus her efforts on finding stability. Plaintiff had recently become a certified nursing assistant at a long-term care f acility. Plaintiff would ask Intervener to see the child, but Intervener made it d ifficult. Intervener did not allow plaintiff to see the child again until February 2013. Plaintif f applied for termination of the guardianship in March 2013. Intervener contacted plaintiff and told her that if she dropped the petition to terminate the guardianship, then plaintiff would be able to see the child at certain times, including unsupervised visit s. Plaintiff was tempted to drop the petition, but did not.

5 Plaintiff’s sisters also testif ied as to the abuse and plainti ff’s alienation from her family.-12- Plaintiff acknowledged that the child had some negative emotio ns at first and initially refused to refer to plaintiff as “mom.” Plaintiff also acknowl edged that the child shared a very close bond with both Intervener a nd Abbie, whom the child refer red to as her sister. Plaintiff was not opposed to the child seei ng Intervener: “I don’t think that she shouldn’t be allowed any contact, but as long as Donna can show that she is not going to be harmful to [the child’s] emotional wellbeing . . .and if she will be in support – actua l support of [the child] and my relationship. . . .I would like to see from Donna that she’s tr ying and that she’s not – not trying to turn [the child] against me in any way, shape, or form.”

Plaintiff testified that the child had a medical appointment that she wanted to attend. In the waiting room, Intervener turned to plaintiff and said that she did not need to come back to the room and was not wanted there. Intervener told plaintiff to wa it in the waiting room. Plaintiff also testified to an incident in which Intervener gave her misi nformation about a party that the child wanted to attend. Intervener also interfered with plaint iff’s attempts to meet with the child’s teacher, again telling pl aintiff that she was not allow ed in the school and was not wanted there.

Although plaintiff initially vehemently denied having recent c ontact with defendant, she later admitted to seeing him on a number of occasions since Feb ruary 2013. Plaintiff allowed the child to talk to defendant on th e phone and allowed her to see defendant after he hurt his head. Plaintiff admitted to staying overnight at defendant’s on occas ion. They were having sexual relations throughout the course of the case. But plaintiff sti ll denied being in a relationship with defendant: “I was stupid and I am very ashamed for letting him get into my head. He absolutely made me believe that I needed him on my side and I was – I need ed to do anything and everything possible to get [the child] out of a bad situation.”

Plaintiff called Alaura Haueter as a witness. Haueter testifi ed that defendant was her exboyfriend and father of her child, A, born December 31, 2013. H aueter began her relationship with defendant in October 2012 and moved in with defendant, Int ervener and Abbie in November or December 2012, just one month after plaintiff left the home. Haueter testified that there was domestic violence perpetrated by defendant against Haueter and Intervener. The abuse would take place as regularly as every other week and included “punching, kicking, biting, pulling hair, anything he possibly could.” Within two weeks of A coming home from the hospital, defendant gave Interven er a black eye. Intervener mi nimized defendant’s behavior and would ask Haueter “what did you do this time?” The child was a lso present for some of the outbursts. Intervener would tell the child that defendant “was sick and that it was going to be okay and that he was going to fix himself.” The child would cr y and run and hide. Haueter testified that defendant kept Haueter from her family: “I neve r had a phone, I never had a way out. He had sold my car. He had never let me talk to my famil y.” Haueter tried leaving defendant on two separate occasi ons by having her sister come g et her. Defendant convinced her to come back by promising to get counseling.

Haueter took advantage of the fact that the rest of the househ old was at court on January 13, 2014 to make her escape. Haueter called her sister and father to come and get her. Intervener came home while she was packing and told Haueter “yo u’re not going anywhere” and “why are you doing this to our family?” Intervener would not m ove out of Haueter’s way, so Haueter ripped the shades off of the window and banged on the w indow to get her sister’s and-13- father’s attention. Police officers arrived on the scene. Int ervener proclaimed that she had done nothing wrong and that Haueter ha d not been held against her wi ll.

Haueter was present during the home invasion incident when def endant went to confront the man whom he believed stole from him. Abbie believed she kn ew who had taken the marijuana and lamps. Intervener, defendant, Haueter, and the c hild drove to where Abbie was. It was Intervener’s idea that the child accompany the family to confront this individual. Abbie was trying to convince the indivi dual to return her brother’s i tems when defendant became upset and chased the individual into the house. Defendant knocked on the door and knocked on a window so hard that his hand went through it. The child was si tting on Haueter’s lap inside the family’s van. The child was upset because she thought defendan t was going to die since he cut his arm. An ambulance was called and police questioned defenda nt at the hospital.

Haueter testified that the child was present when Intervener and defendant discussed plaintiff. They described plain tiff to the child as “someone t hat she never really knew.” They said that plaintiff “was a druggie and that she would never cha nge because she has mental issues and that she doesn’t know [the c hild] and she doesn’t have the right to know [the child].”

Fifteen-year old Abbie Weddingt on described the child as her l ittle sister and favorite person in the world. Abbie did not observe any domestic violen ce in Intervener’s home. If there was yelling, she, Intervener, and the child would leave. Abbie observed verbal fights between defendant and Haueter, but not as frequently as when defendant and plaintiff used to fight. Abbie saw defendant push past Haueter once when Haueter refused to leave him alone. Abbie never saw Intervener or defenda nt try and keep plaintiff from l eaving the home.

The day Haueter left, Abbie was home sick from school with the flu. Abbie called her mom, who arrived as Haueter was packing her things. Abbie deni ed that Intervener did anything to keep Haueter from leaving, though she acknowledged that Haue ter pulled the shade off of the window. Abbie denied that the po lice were involved. Abbie and Intervener now lived in a different house from defendant. Abbie denied that the move was prompted by anything other than wanting more space and because defendant was older. She d enied that the child was afraid of defendant. Abbie never hear d any negative comments about pl aintiff.

In the middle of the proceedings, plaintiff filed a motion to modify temporary custody after it was revealed that the child placed calls to plaintiff and others in an attempt to recant what she previously told her therapist – that she had witnessed defe ndant’s domestic abuse. Abbie was there when the child called plaintiff after being confronte d about statements she made to Pancost. Intervener explained that defendant had been at the h ouse and returned a few minutes later after speaking with plaintiff on the phone. Apparently p laintiff let defendant know that the child had revealed that there was domestic abuse in the home to her therapist. Defendant returned to the home to see if it was true. Defendant was upse t when he questioned the child about it. Intervener asked Abbie to take the chil d to her room . Intervener told defendant that the child did not reveal any abuse. Instead, plaintiff “was contin uing to push his buttons, and that he needed to calm down and to think about the situation, and that was about it, and then he left.” Intervener did not realize that the child had called plaintiff. The trial court later ordered that defendant have no contact with the child pending resolution of the case. It declined plaintiff’s motion to change temporary custody, even as the GAL noted: “Th is child is being told things,-14- and this – this case is being discussed with her. She is being put in the middle of this. She is being pitted against her mother by calling her. This is harmin g this child.”

On June 6, 2014, the matter was adjourned because the child’s half-sister, A, had become ill and was in the hospital. The trial court ordered that plai ntiff’s summer parenting time be accelerated and ordered that plaintiff could pick up the child from school at the end of the day to begin parenting time or, alter natively, if the child was with h er sibling at the hospital, plaintiff was to begin summer parenting time at noon the next day. Inter vener picked up the child from school that day. Staff informed h er that plaintiff had called and said she was bringing paperwork that would allow her to take the child home. Intervener left b efore plaintiff arri ved, explaining “I didn’t have time to worry about it” in light of the fact that s he was on her way to the hospital in Grand Rapids to see A. Because the child was not allowed to ha ve contact with defendant, Intervener dropped the child off at her friend’s home. Plainti ff went to the hospital, looking for the child but Intervener told plaintiff that the child was not with her and that she had no way of contacting the child. Intervene r did not know the address for her friend, whom she had known for 15 years. Intervener did not provide the phone number beca use “I wasn’t asked for it.” “She [plaintiff] tried to hand me a piece of paper when she first go t there, but I was already walking out.” Intervener admitted she had spoken with her own attorney an hour before seeing plaintiff at the hospital.

Intervener testified that the child calls her “Mimi” and never referred to her as “grandma.” Intervener denied doing anything to negatively impa ct the relationship between plaintiff and the child – “The mother has done that all by hers elf.”

Intervener testified to the number of times plaintiff was abse nt from the child’s life, including when she was in the hos pital for a week when the chil d was six months old after attempting suicide. Plaintiff left for Arizona on two separate occasions. Intervener had flown plaintiff and defendant home for Christmas and Intervener expec ted plaintiff would stay, but she decided to go back with defendant. While Intervener believed p laintiff abandoned the child, she did not believe defendant ha d abandoned the child.

Intervener denied ever trying to keep plaintiff or Haueter fro m leaving her home. In fact, she “wanted them out, both of the girls” after she “saw what th ey had become and what they were doing.” Intervene r claimed that she was actually helping Haueter carry her things out to the car, but also acknowledged that the police were there. Interve ner denied that there was any domestic violence between defendant and plaintiff. “There was yelling, absolutely, throughout the course of their relationship. But I’m not sure of a relati onship that doesn’t have yelling. But I never saw any physical violence.” Intervener denied there wa s ever any domestic violence against her. “In the past, when my son was 14 or 15, he got ou t of hand with me and I called the police and had him arrested. Has he raised his voice at me? Y es, he has. Do I put up with it? No.” Intervener always makes sure Abbie and the child are away from the house when defendant is upset. Intervener at tributed her black eye in January 2013 to a fall on the ice. She denied that they had to move because of an incident at Abbie’s school with defendant. She explained that defendant arriv ed at the school upset, though sh e could not remember why, “that’s how trivial it was.” Intervener did not see any reason why the child would be afraid of defendant.-15- Regarding the home invasion inci dent, Intervener testified tha t defendant “went to keep someone for the police, keep someone from leaving the state unt il the police got there when someone broke into the shed.” Intervener was the one that call ed the police on their way there. “It was not supposed to be any physical altercation, whatsoever .” The child was in the car playing for the hour it took police to arrive on the scene. Sh e did not witness defendant getting hurt. “There were no safety issues at all.” “I didn’t put [th e child] in that situation. [The child] was just in the vehicle.”

Intervener denied knowing anything about the road rage inciden t or speaking to officers. Defendant told her that someone had cut him off and that his sh irt got caught on the windshield wiper. 6

Regarding the high speed chase, Intervener testified that plai ntiff “ran off” with someone and came back a week later to take the child. The child was no t home. Plaintiff and Connie Falconer waited until Intervener and defendant left the house a nd then “began to chase us.” The police ordered plaintiff to stop and leave them alone. Plainti ff moved back in with Intervener a week later.

Intervener admitted to sitting in the hallway and the bathroom , but believed prior testimony was “embellished” and that “Ms. Stack was very combat ive with me the entire time . . .” Intervener only lived a few minutes from where the two-hour visits were taking place, but decided to stay in order to read the Bible. She did not th ink she should have to spend money on gas to go back and forth.

Intervener testified that she was cooperative with CPS and it was the CPS workers who refused to return her phone calls. She denied changing any app ointments. Intervener still remained uncertain as to what CPS’s concerns were. Intervener did not believe the child needed protection from defendant. “I don ’t agree that [defendant] wou ld ever do anything to hurt his daughter, absolutely not.” She added “I never failed to prote ct [the child] from anybody . . .That’s what I’m trying to do now.”

6 This was in stark contrast to Officer Tonya Wilt’s testimony. Wilt testified that she responded to an incident on February 9, 2013, involving the malicious des truction of property to a vehicle. The victim provided a license plate number that led Wilt to Int ervener’s home. Intervener described the incident to Wilt and indicated that the other dri ver stopped abruptly and almost killed them. She told Wilt that the other driver spat on defen dant and threatened him with a gun. The windshield wiper was torn o ff when defendant’s jacket got c aught on it. Intervener led Wilt to believe that she had no way of contacting defendant. She of fered to pay the damages. Wilt testified that contact with Int ervener was “odd”: “just, you know, her changing of statements and stuff like that. Changing from Mr. Meyers being her son . . .to not knowing him, to him being a juvenile, when originally she had advised that he was i n his twenties, I believe. I don’t – didn’t remember all of that, you know, offhand, but I – like I said, I just remember them being odd.” Wilt had considered referring Intervener to the prosecut or for giving false information.-16- Intervener had followed the orde r that prohibited defendant fr om having contact with the child though she did not see the child at risk with defendant. Prior to that, the child saw defendant at least three or four times a week. Intervener beli eved defendant was fit to raise the child, but then clarified that there was a difference between “ fit” and “ready” and defendant was not ready. This was in contrast to a letter she filed in the p robate court, begging the court for help in finding out how defendant could apply for custody of th e child without an attorney.

Intervener testified that plaintiff was not ready to take care of the child but did not deny there was the potential for plaintiff to provide care and custo dy in the future. She believed plaintiff still needed to learn “how to tell the truth, learnin g right from wrong, learning not how to be manipulated by other people. ” Intervener added that plai ntiff continued to use drugs. Although Intervener was confronted that there was no proof of p laintiff’s alleged continued drug use, Intervener testified “no, but I – somebody will – it will get testified to. Some person who has proof will testify to it before the day is over, sir.”

Intervener denied influencing the child. “[The child] knows these proceedings are going on. As everybody has told you, she is an extremely intelligentchild. Have I dwelled on or told her her mother was a bad mother, absolutely not.” All that Int ervener told the child was that plaintiff believed she was capable of taking care of the child and “wanted the child to come live with her.” Intervener denied i nterfering with plaintiff’s atte mpt to have a relationship with the child. Intervener talked to th e child about the importance of having her parents in her life. The child reported that plaintiff would yell at her. “And you know , we talk about different kinds of parenting skills and – and, you that possibly – hopefully Krist en will be getting more help with her parenting skills, you know. A nd that as long as she felt s afe, that you know, people have different types of parentings s kills.” Intervener testified th at claims that she was attempting to sabotage the relationship was “jus t not the truth.” “I have be en there since day one for all of them – all of them; these two i ncluded, and would love nothing better than to have a peaceful relationship with all of them.”

Upon questioning from the child’s GAL:

Q . How have you fostered a relationship between Ms. Falconer an d [the child]?

A . [The child] and I have had talks about both of her parents g etting sober and that they are continuing t o get the help they need.

Q . That’s how you foster that relationship?

A . By talking to her? Yes, we talked about it all – yes.

Q . I – I

A . And that she’s making an effort –

Q . You . . .

A . . . .to try to be a better parent.-17- Q . Okay.

A

. And maybe one day she will be.

When confronted by the GAL’s que stioning regarding why Interven er would have left the child in plaintiff’s care when Intervener knew she was using drugs, I ntervener lashed out: “I shouldn’t have left her with her mother? Yes, that was a bad decision to let he r mother try to be a mother. And I’m trying not to make that decisi on again and I’m hopi ng the Court won’t. ” And during another exchange with the GAL:

Q . You’re not going to cooperate with Ms. Falconer about anythi ng are you?

A . What are you talking about?

Q . Her simply trying to hand you a piece of paper, you’re not g oing to cooperate with that, are you?

A . How about me getting my Father’s Day visit, is she going to cooperate with me?

Q . And – and . . .

A . Yes, absolutely, I would love to cooperate with Ms. Falconer if she could quit telling lies long enough to cooperate.

Intervener denied ever being evicted since caring for the chil d, even in the face of documents to the contrary. She testified that she never saw th e documents or that the claims had been “taken care of.” Interven er also downplayed an arrest for retail fraud at Meijer regarding a prescription. She denied posting to Facebook that plaintiff “w ho has some serious mental issues” was “trying to legallyremove her from my home . . .”

Although Intervener testified th at she had no objection to hav ing her psychological evaluation released, it never was.

Defendant testified that he and plaintiff were “off and on” du ring the proceedings and spent nights together. They stopped speaking in June 2014. De fendant last used heroin in April with plaintiff; they had used heroin together at least six time s in 2014. Defendant admitted that his relationship with plaintiff was a “cat and mouse game.” He knew she had used heroin and could use that against her, while she was in a position to caus e trouble with Haueter, with whom he was seeking to reconcile. Defendant’s last contact with pla intiff was “when she decided that when my five-month-old was just waking up out of surgery that s he needed to come up to her room to cause a commoti on over a court paper.”

Defendant denied any domestic violence with plaintiff: “We’ve had our horrible fights, just like I would assume any other couple has had. But I’ve ne ver sat there and just, I mean, Mohammad Ali went crazy on her or anything like that.” Defend ant denied seeing Intervener coach the child.-18- Defendant was combative and hostile during cross. Defendant d enied receiving any of the pleadings in the guardianship proceeding. He supported his mother in her resistance to terminating the guardianship and did not see a reason to be inv olved. Even now, he did not fight for custody because he was “not fit at this time” and wanted to allow “someone that I have seen raise [the child] her entire lif e continue to raise her until I am ready or Kristen is ready.” He admitted to a 2009 conviction for interfering with a communicat ion with Intervener; he claimed that the phone just died. Defendant was charged with assault a nd malicious destruction of property for a November 18, 2012 in cident with plaintiff’s frie nd, but that was “dropped” when no one appeared at court. Defenda nt constantly indicated that he did not remember things, adding “I’m sorry, I have a lot going on right now if you haven ’t noticed.” Defendant claimed he did not remember the road rage incident. He had also “block ed out” the home invasion incident.

During closing arguments, plaintiff’s attorney noted that Inte rvener was attempting to sabotage plaintiff’s relationship with the child. Counsel adde d that Intervener “does not have an independent right to grandpare nting time. She – . . .there’s a . . .claim in which she could file to seek that, but it’s not this. Thi s is a custody case.” The G AL likewise noted: “I would recommend that any parenting time with the grandmother be at th e mother’s discretion.” The GAL further noted that the trial court should not even bother w ith an in camera interview of the child, in light of the grooming. T he trial court nevertheless interviewed the child.

D. THE TRIAL COURT’S DECISION

The trial court first commented on the witnesses’ testimony. It found that plaintiff was not entirely forthcoming in that plaintiff initially denied see ing defendant during t he proceedings. The trial court found that Intervener lied about some things, b ut nevertheless accepted some of Intervener’s testimony as credible. Regarding defendant, the trial court noted: “listening to his testimony, or lack thereof, as well as considering his demeanor . . ., the Court totally discounts and rejects his entire tes timony. . .based upon the testimony a nd his actions, the Court believes that in fact there just was no truthfulness in this testimony a nd I completely reject it.” The trial court admonished plaintiff that further contact with defendant “could prove to be disastrous to you.”

The trial court cited MCL 722.25(1), Heltzel v Heltzel , 248 Mich App 1; 638 NW2d 123 (2001), and Hunter v Hunter , 484 Mich 247; 771 NW2d 694 (2009)

, for the notion that there is a presumption that placement with the natural parent is in the ch ild’s best interest absent clear and convincing evidence otherwise. It also cited Troxel v Granville , 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000) for the notion that a natural parent has a fu ndamental liberty interest in caring for her child. The trial court concluded, therefore, that Inte rvener had the burden of showing by clear and convincing evidence that the child should be placed w ith Intervener. It then proceeded to analyze the best interest factors in MCL 722.23(3) of the CC A.

The trial court found the parties on equal footing as it relat ed to factor (a) -- the love, affection and emotional ties th e child had with the parties.

As for factor (b) – the capacity and disposition of the partie s to give the child love, affection, and guidance, the trial court noted that the factor favored plaintiff :-19- As it relates to guidance, the – Ms. Weddington had allowed he r son and the Plaintiff in her home to engage in sexual relations during the time that they were minors resulting in the birth of this child. She’s allowe d them in both – in her house as well when they were both engaging in drug use, whe n she knew that, when she had in essence two mi nor children in the household.

Additionally, Ms. Weddington took [the child] when this – whenMr. Asher was being confronted [during the home invasion incident]. And basically, when she was questioned extens ively . . . she showed a total l ack of judgment as to how this could have been a dange rous situation for [the chil d].

As a result – and for other reasons as well – the Court will f ind that this factor . . .does favor the Plaintiff Mother.

As to factor (c) – the capacity and disposition of the parties to provide the child with food, clothing, medical and other remedial care – the trial cou rt concluded that Intervener’s insistence on continuing to help defendant with his rent impact ed her ability to provide for the child and, as such, there was a “s light” advantage to plaintiff

. As for factor (d) – the length of time the child has lived in a stable satisfactory environment and the desirability of maintaining that environmen t – the trial court concluded that Intervener’s many moves and the lack of safety caused it to “sl ightly” favor plaintiff.

As for factor (e) – the permanency as a family unit of the exi sting and proposed homes – the trial court found the factor equal (Tr IV, p 140).

As for factor (f) – the moral f itness of the parties – the tri al court noted that “neither party has an exemplary history as it relates to this factor.” It not ed, however, that Intervener’s behavior of pandering to or condoning defendant’s behavior caus ed it to “slightly” favor plaintiff.

As for factor (g) – the mental and physical health of the part ies – the trial court found that the factor “slightly ” favored plaintiff.

As for factor (h) – the home, school, community – the trial co urt found that the factor favored plaintiff.

As for factor (i) – reasonable preference of the child – the trial court noted that it spoke to the child, who was clearly impacted by the proceedings. “And s ometimes kids of that age come in and are just simply maybe somewhat apprehensive of the – of the Judge, or not knowing what’s going to happen, but you could see that [the child] was impacted by these proceedings. But she was very pleasant, very thoughtful, and she did express a preference, and the Court is considering that preference i n this particular matter.”

As for factor (j) –willingness and ability to facilitate and e ncourage a close and continued relationship – the trial court had a lot to say:-20- In this particular matter, t he testimony was that Ms. Weddingt on, when the Plaintiff went to the doctor’s office, that Ms. Weddington told her to wait in the lobby. Ms. Weddington told the Plaintiff that --- when she was at school that she was not welcome at school. She told her she wouldn’t be able t o – she wouldn’t be able to get a report card without a court order, and she – M s. Weddington objected to having the maternal gr andparents supe rvise any pare nting time.

And the Court, likewise, believes as it relates to this issue of the car chase, there was this car chase in which she basically characterizes i t a car chase, the Court doesn’t – believes that they were followed, but the Court doesn’t believe that it was a car chase in this particular matter. And I think that the way that Ms. Weddington has approached a number of th ings in this matte r have in fact impacted the way that [the child] views her mother in this particular case.

Ms. Haueter testified that Ms. Weddington and the Defendant di scussed the Plaintiff in front of [the child] and the – basically the only reason for such conduct would be to alienate the child from the parent

. Ms. Weddington is likewise – has a – a Facebook post that she admitted to, stating that [the child] was living with a stranger and at a stranger’s home and feeling so sad. In this particular case, at some point, the ch ild would be able to view that and see that, and that is not conducive to esta blishing a parent/child relationship.

Additionally, when Ms. Weddingt on was questioned by Mr. Clore back on June 18 th as to whether she credited Plaintiff with any improvement, Ms. Weddington would not acknowledge that she had improved her life in any way. She wouldn’t even acknowledge the improved housing, the stable job, and she wouldn’t acknowledge that the Plaintiff had in fact gained cont rol of her drug issues; notwithstanding the fact t hat she had had a number [of] negative drug
tests.

These statements and conduct belie any ability on behalf of Ms. Weddington to establish and continue a parent/child relationship between [the child] and the Plaintiff mother.

So as a result, the Court will find that that factor does favo r the Plaintiff mother.

As for factor (h) – domestic vi olence – the trial court noted that there was no evidence that plaintiff had been involved in any domestic violence where as “there was voluminous testimony” that defendant had. The trial court concluded that the factor favored plaintiff:

I would state that Ms. Weddingt on did not commit any domestic violence, but she had allowed that to con tinue in the home, and notwithst anding the fact that she would take the child and have the child removed by her own statements and by the statements of Abbie Weddington, the testimony of Ms. Haueter was-21- that [the child] would cry and hide during these bouts when the y occurred in the home.

And finally, as for factor (i) – any other factors the court d eems relevant—the trial court noted:

In this case, when grandmother was asked about Mr. Stamps, she acknowledged that he gets angry, he has a temper, that there’s a history of bad decisions concern – and I state based on what I’ve seen, there’ s a history of bad decisions concerning her son – th at she’s simply blinded to his faults, his bad behavior, and his conduct.

And the Court is also concerned about Ms. Weddington’s total a nd complete lack of objectivity when i t comes to her son in this m atter . . .

Intervener having failed to meet her burden by clear and convi ncing evidence, the trial court ruled that plaintiff w ould have custody of the child.

The trial court did not end its inquiry, however. It indicate d that “there are other issues the Court has to decide. Those other issues concern grandparen t visitation.” It addressed the factors in MCL 722.27b(6)(a)-(j).

The trial court concluded that factor (a) – the love, affectio n, other emotional ties existing between the grandparent and the c hild – favored grandparent vis itation.

The trial court also concluded that factor (b) – the prior rel ationship between the grandparent and the chil d – also favored visitation.

The trial court found that factors (c) and (d) – the grandpare nt’s moral, physical and mental fitness –favored against visitation.

The trial court considered the child’s reasonable preferences under factor (e).

As for factor (f) – the effect on the child of hostility betwe en the grandparent and the parent – the trial court noted:

It does appear that the parties have been able to in fact get a long somewhat as it relates to the exchanges, et cetera, and as a result the Court will find that in fact, hopefully, the parties can get past any animosity they have whe n this case is concluded, but the Court will fi nd that that factor does favor grandparenting time.

As for factor (g) – willingness of grandparent to encourage a relationship with the parent – the trial court concluded that , for the same reasons set fort h under the custody factor, the factor did not favor visitation.

As for factor (h) – allegations of abuse – the trial court did not give the factor weight even though Intervener had been s ubstantiated for neglect.-22- As for whether plaintiff’s decision to deny parenting time was motivated by something other than the child’s best inte rests under factor (i), the tri al court concluded that it did not feel that plaintiff acted out of ill wi ll “but the Court does find that in fact it would a dversely affect the minor child if this contact was cut off.”

Finally, the trial court considered “substantially” factor (j) , which was “any other factor relevant to the physical and psychological well-being of the ch ild.” The trial court noted that the child had come to depend upon Intervener. The trial court conc luded that “the grandmother has met the burden by a preponderance of the evidence that in fact it would be a – the child would be placed at substantial risk of harm to the child’s mental, physi cal, and emotional health if in fact that contact is cut off.”

On August 11, 2014, the trial court entered the final order fo r child custody. The order granted plaintiff sole physical and legal custody of the child. Defendant’s parenting time remained suspended and Intervener was granted standard parentin g time for a noncustodial parent. The trial court denied plaintiff’s motion for reconsid eration. Plaintiff now appeals as of right.

II. ANALYSIS

A. STANDARD OF REVIEW

Orders concerning grandparenting time must be affirmed on appe al unless the trial court’s findings of fact were against the great weigh t of the evidence, the court committed a palpable abuse of discretion, or the court ma de a clear legal error on a major issue. Issues of statutory interpretation are questions of law. Questions of law are reviewed forclear legal error. Clear lega l error occurs when the trial court errs in its choi ce, interpretation, or applicat ion of the existing law. [ Varran ex rel Varran v Granneman , ___ Mich App ___; ___ NW2d ___ (Docket No. 321866, decided October 13, 2015) , slip op, p 12 (internal quotation marks and citations omitted).]

B. PROCEDURAL ERROR

This case is a custody dispute between plaintiff, who is the c hild’s biological mother, and Intervener, who is the child’s paternal grandmother. Intervene r had provided the child with an established custodial environmen t for a number of years before the custody hearing. Generally, a “court shall not modify or amend its previous judgments or orde rs or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the chil d.” MCL 722.27(1)(c). However, a natural parent has a fundamental liberty interest in the care a nd custody of her child. Hunter
, 484 Mich at 257. To that end, MCL 722.25(1) provides:

If a child custody dispute is bet ween the parents, between agen cies, or between third persons, the best interest s of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awar ding custody to the-23- parent or parents, unless the c ontrary is established by clear and convincing evidence.

Our Supreme Court has held that the parental presumption in MC L 722.25(1) in child custody disputes controls over the conflicting presumption favo ring an established custodial environment in MCL 722.27(1)(c). Hunter, 484 Mich 263-264; see also Heltzel v Heltzel, 248 Mich App 1, 26-27; 638 NW2d 123 (2001). This is because “the p arental presumption has some constitutional provenance, where as the custodial environment pr esumption has none.” Hunter
, 484 Mich 272. The Court explained:

The importance of the family and the essential, basic, and pre cious right of parents to raise their children are well established in United States Supreme Court jurisprudence. This right is not easily relinquished. The funda mental liberty interest of natural parents in the care, custody, and managemen t of their child does not evaporate simply because they have not been model pare nts or have lost temporary custody of their child to the State. Therefore, to sa tisfy constitutional due process standards, the state “must provide the parents withfundamentally fair procedures. [ Id. at 257 (internal quotation marks and footnotes omitted).]

The Court further explained:

Troxelexplicitly requires courts to give some deference to a parent’ s decision to pursue custody because it is inherently central to the parent’s control over his or her child.

By contrast, unlike the parental presumption in MCL 722.25(1), no constitutional protections for t hird persons underlie the estab lished custodial environment presumption in MCL 722.27(1)(c). This Court has hel d that no constitutional or statutory basi s exists for third parties to h ave standing to seek child custody solely because they have an established custodial relationship with the child. [ Id. at 263.]

Absent a statutory requirement to the contrary, the parental p resumption does not even require a threshold determination of parental fitness. Id. at 268. That is because “a natural parent’s fitness is an intrinsic component of a trial court’s e valuation of the best interest factors in MCL 722.23.” Id. at 270. The best interest factors that require a trial court t o consider a parent’s “moral fitness” and “m ental and physical health” “refl ect the legislative determination that concerns about parental fitness are of paramount importanc e in custody determinations.” Id. at 270-271. Therefore, in a custo dy dispute between a natural parent and a third party, it is presumed that the child’s best interests are served by being pl aced with the natural parent unless the third party can demonstrate otherwise by clear and convinci ng evidence. A custody proceeding necessarily involves an inquiry as to the fitness of the competing parties, utilizing the best interests standard s set forth in MCL 722.23.

An action for grandparenting time, unlike custody, is simply a different cause of action altogether. Here, in granting plaintiff full physical and lega l custody, the trial court methodically considered the child’s best in terests in MCL 722.23 and conclud ed that Intervener failed to meet-24- her burden of showing by clear an d convincing evidence that the child’s best interests would have been served by placing the child in Intervener’s care. Ne cessarily included in that decision was the trial court’s tacit finding that plaintiff was a “fit” parent. Whereas a custody case involves an inquiry as to parental fitness, a proceeding under the grandparent visitation statute
presumes parental fitness. Abs ent a challenge to the trial court’s cus tody decision, it is presumed that plaintiff is a fit parent and “there is a presumption that fit parents act in the best interests of their children.” Troxel , 530 US at 68.

The United States Supreme Court has declared that “the decisio n whether such an intergenerational relationship would be beneficial in any speci fic case is for the parent to make in the first instance. And, if a fit parent’s decision of the kin d at issue here becomes subject to judicial review, the court must accord at least some special we ight to the parent’s own determination.” Id. at 70. Troxel struck as unconstitutional a Washington statute that permitted
any person to at any time to seek visits with a child if such visits were in the ch ild’s best interests because a fit parent’s decision was accorded no deference. Id. at 67. Similarly, in DeRose v DeRose , 469 Mich 320, 333-334; 666 NW2d 636 (2003), our Michigan Supr eme Court struck as infirm the prior version of MCL 722.27b because “[t]here is no indication that the statute requires deference of any sort be paid by a trial court to the decisions fit parents make for their children” and “fails to require that a trial court accord defer ence to the decisions of fit parents regarding grandparent visitation.”

Our current grandparenting time statute now affords such defer ence. A child’s grandparent may seek a grandparenting time order where, as here , “[i]n the year preceding the commencement of an action under subsection (3) for grandparenti ng time, the grandparent provided an established custodial environment for the child as described in section 7, whether or not the grandparent had custody under a court order.” MCL 722. 27b(1)(f) (footnote omitted). The grandparenting statute also s ets forth the procedure for br inging the issue of grandparenting time before the court. Where, as here, the “circuit court has continuing jurisdiction over the child” because of the custody proceeding, “the child's grandpar ent shallseek a grandparenting time order by filing a motion with the circuit court in the county where the court has continuing jurisdiction.” MCL 722.27b(3)(a) (emphasis added). Additional ly, the motion “shall be accompanied by an affidavit setting forth facts supporting the requested order” which, in turn, allows the party having legal custody to file an opposing affid avit. “A hearing shall be held by the court on its own motion or i f a party requests a hearing. A t the hearing, parties submitting affidavits shall be allowed a n opportunity to be heard.” MCL 7 22.27b(4)(a).

However, because “[a] parent has a fundamental right, one thatis protected by the Due Process Clause of the Fourteenth Amendment, to make decisions c oncerning the care, custody, and control of his or her chil d . . .[i]t cannot be disputed th at a grandparenting time order interferes with a parent’s fundamental right to make decisions concerning the care, custody, and control of a child.” Varran , slip op, p 6 (internal citations omitted). Therefore, our le gislature has provided that:

(b) In order to give deference to the decisions of fit parents, it is presumed in a proceeding under this subsection that a fit parent’s decision t o deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health. To rebut the presumption created in this-25- subdivision, a grandparent filing a complaint or motion under t his section must prove by a preponderance of the evidence that the parent’s deci sion to deny grandparenting time creates a substantial risk of harm to the c hild’s mental, physical, or emotional health. If the grandparent does not over come the presumption, the court shall dismiss the complaint or deny the motion. [MCL 722.27b(4)(b).]

Our Court has recently upheld a constitutional challenge to thi s statute, holding that the statute “does not allow a trial court to grant grandparenting time simp ly because it disagrees with the parent’s decision” and “thus abides by the Troxel deference requirement.” Varran , slip op, p 9. The Court further held that, because fit parents are provided w ith a presumption of fitness, “the requirement that grandparents, inorder to rebut the presumptio n given to a fit parent’s decision, prove by a preponderance of the e vidence that the parent’s deci sion to deny grandparenting time creates a substantial risk of harm to the child is sufficient t o protect the fundamental rights of parents.” Id. at 11.

Here, the trial court conflated these two separate and distinc t actions. It first concluded that plaintiff was entitled to custody of the child based on In tervener’s failure to show by clear and convincing evidence that the child’s best inte rests were no t served by placing the child with plaintiff. However, the trial co urt sua sponte continued that “there are other issues the Court has to decide. Those other issues concern grandparent visitation.” It then plowed ahead and addressed the factors inMCL 722.27b(6), which provides:

(6) If the court finds that a grandparent has met the standard for rebutting the presumption described in subsection (4) , the court shall consider whether it is in the best interests of the chil d to enter an order for grandpare nting time. If the court finds by a preponderance of the evidence that it is in the best interests of the child to enter a grandparenting time order, the court shall enter an order providing for reasonable grandparenting time of the child by the grandparent by general or specific terms and conditions. In determining the best interest s of the child under this subsection, the court shall consider all of the following:

(a) The love, affection, and othe r emotional ties existing betw een the grandparent and the child.

(b) The length and quality of the prior relationship between th e child and the grandparent, the role performed by the grandparent, and the exi sting emotional ties of the child t o the grandparent.

(c) The grandparent ’s moral fitness.

(d) The grandparent’s men tal and physical health.

(e) The child’s reasonable preference, if the court considers the child to be of sufficient age to express a preference.

(f) The effect on the child of hostility between the grandparen t and the parent of the child.-26- (g) The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child.

(h) Any history of physical, emotional, or sexual abuse or negl ect of any child by the grandparent.

(i) Whether the parent’s decision to deny, or lack of an offer of, grandparenting time is related to the child’s w ell-being or is for some other unrelated reason.

(j) Any other factor relevant to the physical and psychological well-being of the child. [Emphasis added.]

While the trial court carefully considered the best interest f actors under the grandparenting visitation statute, MCL 722.27b(6), separately f rom its previous best interests determination on custody, MCL 722.23, it nevertheless committed error by even considering the issue of grandparent visitation. I mportantly, plaintiff receiv ed custody of the child just moments before the trial court’s decisi on on grandparenting time and, t herefore, plaintiff had not “denied” Intervener grandparenting time. The trial court, in rendering an opinion on grandparent visitation absent a request to do so, effectively jumped the gu n and presumed that plaintiff would unreasonably deny Intervener grandparenting time. But plaintif f testified that she was amenable to visitation as long a s Intervener did not hing to sabotage pla intiff’s relationship with the child.

Additionally, “[b]ecause a grandparenting time order overrides a parent’s legal decision to deny grandparenting time, a grandparenting time order interf eres with a parent’s fundamental right to make decisions concerning the care, custody, and contr ol of his or her child.” Varran
, slip op, p 6. As previously stated, the primary issue in a cus tody proceeding is markedly different from the primary issue in a grandparent visitation pr oceeding. In the former, the trial court must determine the relativ e fitness of the parties and th e child’s best interest. In the latter, the parent’s fitness is presumed and it is incumbent on the grandparent to show by a preponderance of the evidence th at the parent’s decision to den y grandparenting time creates a substantial risk of harm to the child’s mental, physical, or em otional health. The trial court, in granting Intervener grandparenting time absent a request to do so, deprived plaintiff of the opportunity to argue that Intervener failed to rebut the presum ption. In fact, the trial court failed to indicate that it was even taking the presumption into consid eration. Plaintiff was also denied the opportunity to address the best interest factors set forth in the statute. “[T]he Due Process Clause does not permit a State to infringe on the fundamental r ight of parents to make child rearing decisions simply because a state judge believes a ‘bett er’ decision could be made.” Troxel , 530 US at 72-73.

Also of critical importance wa s the fact that the custody proc eeding was not conducted in such a way as to elicit whether the child would suffer mental, physical, or emotional harm if grandparent visitation was denied. Instead, the focus was on t he child’s physical placement. True, there was testimony that the child, who had lived with In tervener her entire life, was strongly bonded to Intervener and that a total denial of contac t with Intervener would be potentially harmful. But the evi dence also clearly demonstrate d that the child’s transition from Intervener’s home to plaintiff’s home was made unnecessarily di fficult as a result of Intervener’s-27- behavior. Thus, even assuming that Intervener could successful ly rebut the presumption, the record would need to be developed to determine just exactly howgrandparent visitation (or lack thereof) would impact the child. By the same token, assuming that continued visits would be permissible after such an inqui ry, the parties should at least have some input into exactly what “reasonable grandparenting time” should be.

Contrary to the trial court’s approach, a request for grandpar enting time is not automatically included in a third-party request for custody. W e, therefore, vacate that portion of the trial court’s order that granted Intervener grandparenting time where the issue of grandparent visitation was not properly be fore the trial court.

While this would generally end our inquiry, considering the nu merous errors below, we make additional observations in th e event Intervener brings a p roper motion before the trial
court.

C. INTERVENER’S FAILURE TO OVERCOME THE PRESUMPTION

Assuming that the matter was properly before it, the trial court nevertheless erred in permitting grandparenting time where Intervener failed to overc ome the presumption that plaintiff’s “decision” to deny gr andparenting time did not crea te a substantial risk of harm to the child’s physical, mental or emotional well-being.

Because grandparenting time was not an issue at the custody he aring, the presumption was never discussed. While it may be possible that Intervener could prove that failure to allow visits would create a risk of ha rm to the child at some future proceeding, the record, in its present form, does not support the trial court’s actions. The record r eveals that although there is support for the child having continued contact with Intervener, with wh om she had lived her entire life, there is also evidence that Inte rvener’s continued involvement in the child’s life was potentially detrimental to the child’s transition to plaintiff’s home and, therefore, the child’s overall wellbeing.

Intervener’s disapproval of pla intiff exercising her parental rights was obvious, even as far back as the probate proceeding. Intervener’s first two annual court reports revealed that the child and plaintiff loved one another and saw each other freque ntly. It was only after plaintiff moved to terminate the guardianship and a court structured plan was in place that Intervener suddenly changed the tone of he r annual report: “[The child] l oves being with her dad! She grows more fond every day. She is completely not interested/re luctant to see her mother. She cries every time!” Intervener reported that while “mother atte nds 2 hour meeting/visit once a week with [the child], [the child] does NOT enjoy, is very sad + disheartened by each visit. [The child] should not be forced to have a relationship with her mot her (illegible)! [The child] should continue counseling + perhaps Miss Falconer could begin attendi ng. [The child] has been abandoned by her mother 5 times + she is reluctant and afraid.” Intervener requested that the guardianship continue because “the father would like to file fo r full custody but does not yet have funds to hire attorney.” By all accounts except for her o wn, Intervener made visits as difficult as possible, objecting to DHHS’s designee for supervi sed visits and canceling or rescheduling appointments. She would sit outside the visitatio n room or camp out in the bathroom down the hall. Even when advised that her actions wer e interfering with the child’s-28- visits, Intervener refused to comply with requests that she lea ve the area and only left after security guards got involved.

Intervener’s behavior was such that Candace Stack noted:

[The child’s] emotional well-being is being jeopardized living with Donna Weddington. Ms. Weddington has th warted any and all efforts of reunification between the child and her mother. It is believed that Ms. Wedd ington is feeding negative thoughts to [the child] about her mother, Kristen Falc oner, instead of being supportive of the relations hip. It is a travesty that th is reunification period has not been more successful, but it is this worker’s opinion t his is solely due to Ms. Weddington’s attitudes and actions. This worker does not anticipate that Ms. Weddington will ever support the reunification of [the child] a nd her mother.

Similarly, the child’s GAL in the probate proceeding noted in a report:

It is this writer’s opinion that Donna Weddington is so desper ately afraid of losing custody of [the child] that she grasps at any straw i n the attempt to prevent termination of the guardianship. It is further my bel ief that Donna Weddington continues to attempt to undermine this process by co aching the minor.

The lack of cooperation continue d (and actually got worse) onc e CPS opened a case against Intervener and defendant in January 2013. The case was originally opened due to defendant’s criminality and domestic violence, as well as Intervener’s failure to protect the child. Workers were concerned that Intervener took the child with her when she and defendant went to confront one of defendant’s “fri ends” over some stolen items. Defendant was badly injured during the incident when he br oke through a glass window. The child was present and was upset. Intervener failed to see that such behavior placed the child at risk. There was also evidence that Intervener allowed the child to be exposed to def endant’s domestic violence. Intervener excused defendant’s behavior. Intervener’s “enablin g” behavior caused the GAL to
note:

Unfortunately, Ms. Weddington – she loves her son, obviously, and she’s going to protect him, and she’s been there for him. But she’s been there for him too much. She needs to stop prot ecting him and lying for him. And hopefully, she will find a way to do that, but she is enabling him, and it ’s a concern of mine.

If this child were to continue t o be placed in the custody of Ms. Weddington, I, as the Guardian Ad Litem would find it necessaryto file a neglect petition myself. I – I fee l that strongly about it.

At the time of the custody trial, Intervener expressed confusi on as to why the workers were concerned for the child. Intervener did not believe the c hild needed protection from defendant. “I don’t agree that [defendant] would ever do anyth ing to hurt his daughter, absolutely not.” She added, “I never failed to protect [the ch ild] from anybody . . .That’s what I’m trying to do now,” implying that the child needed protectio n from plaintiff in spite of the-29- probate court’s order that the guardianship be terminated and t he child be returned to plaintiff’s

care.
The child’s therapist, Sheri Pa ncost, opined that the child wa s capable of making a healthy adjustment to living with plaintiff. The child reveale d that she was afraid that plaintiff would “leave her again.” Pancost indicated that this fear stemmed mostly from lack of interaction with the great gra ndparents up to that point, but a lso from the “car chase.” The child, who was an infant at the time of the alleged chase, could not h ave possibly remembered the incident. Pancost definitely believed that if someone was sayi ng negative things about plaintiff, that would be a problem for the child’s adjustment. Pancost no ted that the child “has a strong bond with [Intervener]. She feels really close to her and comf ortable with her.” Pancost believed it would be traumatic for the child to lose all contac t with Intervener, who was the stable force in her life, but “[i ]f she had visitations or some thing like that still, it might lessen that impact.” Pancost’s testimony falls far short of opining that p laintiff’s “decision” to deny grandparenting time 7 created a substantial risk of harm to the child’s physical, me ntal or emotional well-being.

Dr. Randall Haugen testified that the child had clearly been g roomed, either intentionally or unintentionally. Haugen noted that the child’s interpretati on of events “seemed to be what she felt that grandma perceived also.” Haugen warned that if the n egative feelings continued, it would impact the child’s functi on. He testified that “[c]hildr en in these situations over a long period of time are really prone to develop emotionally behavior al difficulties” and negative statements create “a lot of anxiety and apprehensiveness just a bout her basic sense of stability, who she is, where she’s going to be in the future.” Haugen not ed that the child perceived Intervener as “her psychological parent at this time,” who met her needs but that the child had a more conflicted relationship with plaintiff because she perceiv ed plaintiff as having abandoned her and as someone who “has a lot of problems and is really bad .” The child told Haugen that she did not believe that plaintiff’s love for her was true love ; she believed that the love she received at home was “real” love. The child said “mommy is pre tending.” Haugen opined that Intervener’s statements to the child that plaintiff was the chi ld’s biological mom but not her real mom were “undermining.” Again, Haugen fell far short of opinin g that plaintiff’s “decision” to deny grandparenting time created a substantial risk of harm to the child’s physical, mental or emotional well-being.

It is clear beyond the shadow of a doubt that the child is wel l bonded to Intervener and has looked to her for care for many years. However, it is just as clear that the lower courts have ordered that plaintiff receive custody of the child, having now adequately reformed her life so that she is a fit parent. Given the presumption that a fit par ent’s decision to deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health, it was incumbent upon Intervener to show by a preponder ance of the evidence that plaintiff made a decision that created a substantial risk of ha rm to the child’s mental, physical, or

7 Again, because grandparent visitation was not an issue at the custody trial, there was no “decision” to deny parenting time.-30- emotional health. Instead of receiving evidence on this issue, the trial court appears to have trumped plaintiff’s discretion as a fit parent. Again, “the Du e Process Clause does not permit a State to infringe on the fundament al right of parents to make c hild rearing decisions simply because a state judge believes a ‘better’ decision could be mad e.” Troxel , 530 US at 72-73.

Plaintiff points to this Court’s decision in Hollis v Miller, unpublished opinion of the Court of Appeals, entered December 6, 2012 (Docket No 306090). While not precedentially binding, MCR 7.215(C), we agree with the Court’s observation:

Plaintiff’s entire argument was that a child needs a loving gr andparent and some access to the maternal side of the family. However, if tha t were sufficient to overcome the presumption in favor of the defendant’s decision, it is hard to imagine a case when the presumption would not be overcome. This would not be consistent with the Legislature’s decision to set up a presumpt ion that denial of grandparenting time by a fit parent does not create a substanti al risk of harm. A trial court may not merely conc lude that “grandparenting is goo d, therefore it should occur.” [ Hollis , slip op, p 4, quoting Keenan v Dawson , 275 Mich App 671, 682;739 NW2d 681 (2007).]

D. THE AMOUNT OF GRANDPARENTING TIME ORDERED WAS EXCESSIVE

MCL 722.27b(6) provides: “If the court finds by a preponderanc e of the evidence that it is in the best interests of the child to enter a grandparenting time order, the court shall enter an order providing for reasonable grandparenting time of the child by the gra ndparent by general or specific terms and conditions.” (Emphasis added). Once again, because grandparenting time was not an issue at the custody hearing, the issue of what was “reasonable” under MCL 722.27b(6) was never discussed at the custody hearing. The rec ord reveals that although there is support for the child having cont inued contact with Intervener, with whom she had lived her entire life, there is also evidence that Intervener’s continued involvement in the child’s life was potentially detrimental to the ch ild’s transition to plaintiff’ s home and, therefore, the child’s overall well-being.

We decline plaintiff’s invitation to declare that only “occasi onal, temporary” visitation is contemplated under the grandparenting time statute. Where, as here, the grandparent’s involvement in a child’s life exceeds the “traditional” role of a grandparent, one could envision a visitation schedule that resembl es that of a non-custodial pare nt. In re Visitation of L-ADW , 38 NE3d 993, 1000 (Ind 2015), is an ex ample of such a situation. In that case, as here, the maternal grandparents played a significant role in the child’s upbringin g. They lived with the parents and the child on two separate occasions to allow the parents an opp ortunity to pursue their highly demanding careers and then later to help with the child as the mother was dying of cancer. Feeling that they were being cut out of the child’s life after the mother’s death, the maternal grandparents sought visitation unde r Indiana’s Grandparent Visi tation Act. Id. at 995. The trial court ordered structured and unsupervised grandparenting time, which included weekly overnight visits. Id. at 996 n 4. Indiana’s intermedia te court determined that, whil e grandparenting time was certainlyin the child’s best interests (even in light of the presumption that the father was a fit parent ), the trial court abused its d iscretion in the amount of grandparenting time it ordered. Id. at 997. Indiana’s highest court affirmed the decision to grant-31- grandparenting time, but disagreed that the amount awarded was excessive. Id. at 999. The high court noted:

In the present case, the trial court considered the extensive role that Grandparents played in L–A’s life from the time she was born, w hich far exceeded the “traditional” role of a grandparent. While living in Mother and Father’s home, Grandparents largely carried out parental duties , such as cooking meals, doing L–A’s laundry, taking L–A to and from school, help ing with homework, reading to L–A before she went to sleep, and attendin g L–A’s extracurricular activities. All on a daily basis. After Mother’ s death, Grandparents still never missed L–A’s extracurricular activities. Now, Grand parents also serve as one of L–A’s only connections to her deceased Mother. Even though it is not disputed that since Mother’s death, Father has spent more time with L–A and developed a closer relationship with her, Grandparents were hea vily involved in raising L–A up until that point. Thus, it is reasonable that th e trial court would view a more involved visitation schedule as appropriate for thi s family. [ Id. at 1000.]

However, of great significance (and totally absent in the case at bar), is the fact that there was extensive record evidence in t he form of expert testimony suppo rting the trial court’s decision:

Right before Mother’s passing, Laura Ellsworth, MA, a licensed mental health counselor, had been contac ted by Father to assist the fa mily in developing a parenting time schedule that would be in the best interest of L –A. After Mother’s death, Ellsworth continued consulting with the family to help L –A transition from staying with Grandparents on a re gular basis to being cared for primarily by Father. Ellsworth conducted multiple interviews with Father, Gr andparents, and L–A to determine what was in L–A’s best interest. Some intervie ws were conducted individually and some were conducted as group session s. Ellsworth concluded that due to L–A’s close relationship with Grandparent s throughout her life, it would be in her best interest to have regularly schedu led time with Grandparents. She also found it “disturbing” that Grandparents had only three overnights and one at-home visitation with L–A in the five months following Mother’s death. Despite an apparent agreement that Father would comply with the recommended schedule, the schedule was not followed.

Grandparents also hired a menta l health expert, Dr. Rebecca Lu zio, in order to provide a recommendation regarding what type of visita tion was in the best interest of L–A. Ellsworth and Dr. Luzio frequently consul ted with one another regarding their observations. Ultimately, both testifie d at the visitation hearing that Father was a fit parent and that grandparent visit ation was in L–A’s best interest. The experts disagreed only on whether it was nec essary for there to be court-ordered visitation. Ellsworth believed that Father sho uld be allowed to determine a visitation schedule, while Dr. Luzio was of the opi nion that courtordered visitation was necessary t o ensure that L–A maintained a meaningful and regular relationship with Grandparents. [ Id. at 995-996 (internal footnotes omitted).]-32- While Ellsworth believed that the father should be allowed to d etermine a visitation schedule, her recommended schedule nearly mirrored the trial court’s ulti mate schedule. Id. at 995 n 3. This Indiana case is in no way controlling, but does support th e idea that, in some very unusual circumstances, extensive grandparenting time may be appropriate . Where, as here, the child has looked to Intervener for her care her entire life, we do not be lieve that grandparenting visitation should necessarily be limited to only “occasional” visits. Rat her, what is “reasonable” grandparenting time must be determined on a case-by-case basis, keeping the child’s best interests in mind.

However, we agree with plaintiff’s statement that the “design of MCL 722.27b(4)(b) and MCL 722.27b(6) is to balance the parent’s fundamental Constitut ional right to manage his or her child against the goal of eliminating the risk of harm to the c hild.” The trial court made no attempt to balance these competing interests. Unlike the India na case, there was absolutely no testimony in this case regarding what amount of contact with In tervener, if any, was in the child’s best interests. As plaintiff aptly notes, the amount o f grandparenting time should have been whatever amount would have e liminated the risk of harm to the child. So, while the experts may have subtly opined that grand parent visitation was in the c hild’s best interests given the particular history of this case, the experts offered no opinionas to the amount of grandparenting time necessary to eliminate the risk of harm to the child.

Additionally, as plaintiff appropriately notes, there is evide nce that Intervener failed to follow court-ordered visitation, which would likely have an eff ect on the type of visitation ordered. There were a number of relevant post-trial events tha t took place that warrant discussion. On July 14, 2014, plaintiff filed a motion to show cause, alleging that Intervener failed to return the child after her week-long visit with Intervener. Attached to plaintiff’s motion were copies of texts that went b ack and forth between plaintiff and Intervener. In those messages, Intervener steadfastly refused to reveal where the ch ild was and also insisted that because the upcoming weekend was Intervener’s scheduled visitat ion time, the vacation was really “seven days plus two”, meaning that Intervener did not h ave to return the child on Sunday, but would return her on Tuesday. Intervener also refused to ha ve the child call plaintiff unless she wanted and would not answer the phone when plaintiff tried calling the child. Plaintiff further argued that, based on In tervener’s use of the plural “k ids” in a Facebook page, that Intervener was allowing the child to have contact with defendan t. Intervener had also posted the following message on Facebook: “Thinking about Megan Reynolds, Michael Khlor [sic], Candace Stack, Christian Giggy, Kathleen Keeter [sic], Megan Wi lder and a few others. I hope you are having a wonderful summer so far!!” 8

A hearing was held on July 28, 2014. The trial court found th at plaintiff’s inquiries about the child’s whereabouts were neith er harassing nor unreasonable and that plaintiff should not have to guess where the child was. It concluded that Intervene r’s keeping the child beyond the one-week period was contempt of court and remedied that by redu cing Intervener’s August visit

8 During the proceedings, these individuals were critical of dif ferent aspects of Intervener’s behavior.-33- by two days. The trial court found that Intervener’s Facebook posting naming individuals involved in this case was passive-aggressive behavior but was n ot a technical violation of its previous order. The trial court noted: “I think it’s clear th at – and the Court would simply reiterate that Mr. Stamps is not to be around the child. And h opefully, in view of the contempt as it relates to the week, that Ms. Weddington will not push . . . the limits of that particular order . . .because the Court will in fact deal with that much more seriously if the issue of contempt comes back before the Court.”

On September 26, 2014, plaintiff filed another motion to show cause. Plaintiff claimed that Alaura Haueter’s mother, Randie Haueter (Randie) revealed that Intervener and defendant were in flagrant violation of the court’s order that defendant not have contact with the child. In an affidavit, Randie averred that she had a falling out with he r daughter after her daughter obtained an order preventing defe ndant from being at the hospit al with A. Randie believed that defendant should have been allowed to see A. Because Randie wa s separated from her husband, Intervener offered to let Randi e stay with her. It was obvious to Randie that defendant continued to live with Intervener and that he had contact with the child during Intervener’s visits. Randie also noted that defendant continued to do drugs. The trial cou rt granted plaintiff’s request that Intervener’s grandparenting time be suspended until further ord er of the court.

Intervener filed a pro per response on October 14, 2014, dismi ssing Randie’s affidavit as an attempt to get back into Haueter’s good graces so that Randi e could visit her sick grandchild. Intervener denied that she allowed defendant to have contact wi th the child and further denied that defendant lived with her or was still using drugs.

The parties appeared before the trial court to argue the motio n on October 13, 2014, but the court concluded that an evid entiary hearing was necessary. It continued the order suspending grandparent visitation until the c onclusion of the evidentiary hearing. It declined Intervener’s request to have at least supervised visits.

The hearing was held on November 7, 2014. Randie testified ab out what she had observed while living with Intervener. Intervener offered witn esses who testified that Randie was not worthy of belief. Interve ner testified as well. She d enied ever leaving plaintiff a voicemail recording wherein the caller indicates that “as much as you don’t want him involved in your life, he’s going to be involved. It’s [the child’s] daddy and she loves him dearly, as she does her grandmother and her aunt and her cousins.” Intervener denied trying to have contact with the child in spite of the court order suspending visits. Intervener admitted that she wrote to the child and that Abbie delivered the letter and a Halloween b asket to the child on the street outside of the child’s school. Defendant stayed with Intervene r during the week, but she explained that was so that she co uld make sure he was complying with services.

The trial court noted that Intervener lacked credibility and t hat she was evasive. It specifically noted that it recogni zed Intervener’s voice on the voicemail in spite of her denials. The trial court was “miffed” a bout the denial because it called into question Inte rvener’s overall credibility. The trial court concluded:

And the Court does believe that the testimony does show in tha t particular matter that you did allow [the c hild] to be around her father, Mr. Stamps. And-34- based upon the testimony as a whole, the Court is going to find that you did in fact violate the court order . You are in contempt of court as a result.

***

I do believe that she has a substantial relationship with grandmother and with her Aunt Abbie in this particular cas e, and as a result, in decidin g the remedy, the Court doesn’t believe that it is in her best interest that all contact be suspended or eliminated in this matter.

But what the Court will do, in view of the violation of this o rder – and the order is put in place to protect [the child] – and what happens , if you’re not going to protect her, this Cour t will protect her.

What I’m going to do is I am going to order supervised grandpa rent time that will occur on alternating w eekends starting November 15, 2 014, or alternating Saturdays from twelve o’clock noon until four o’clo ck p.m., and alternating holidays, with Ms. Weddington to receive Thanksgivi ng, again, from twelve o’clock noon to four o’clock p.m.

The trial court was amenable to adjusting the grandparenting t ime schedule based on Intervener’s behavior but, in so doing, the trial court showed the folly of its original order granting Intervener such liberal grandparenting time without fi rst considering expert testimony as to what would be appropriate under the circumstances. The d evelopments that occurred after the initial order give crede nce to plaintiff’s fears.

E. BEST INTEREST FACTORS

Finally, the trial court’s decision to award Intervener grandp arent visitation was against the great weight of the evidence, at least as far as the record existed at the time of the custody trial.

The trial court considered the best interests factors in MCL 7 22.27b(6).

1. (a) the love, affection, and ot her emotional ties existing between the grandpare nt and the child

The trial court noted: “I’ve al ready addressed that as it rel ates to the custody issue of the Child Custody Act, and as the Court found that that factor was equal as to the parties in this particular case, the Court does find that in fact that factor w ould favor grandparent visitation at this time.” Plaintiff does not challenge this finding.

2. (b) the length and quality of the prior relationship betwee n the child and the grandparent, the role performed by the grandparent , and the existing emotional t ies of the child to the grandparent

The trial court noted that this factor favored visitation with out discussion. Plaintiff complains that the trial court failed to consider the fact that the relationship was not healthy for the child. Absent an explanation from the trial court, we agre e. When it analyzed factor (b)-35- under the CCA – the capacity and disposition of the parties to give the child love, affection, and guidance – the trial court noted:

As it relates to guidance, the – Ms. Weddington had allowed he r son and the Plaintiff in her home to engage in sexual relations during the time that they were minors resulting in the birth of this child. She’s allowe d them in both – in her house as well when they were both engaging in drug use, whe n she knew that, when she had in essence two mi nor children in the household.

Additionally, Ms. Weddington took [the child] when this – whenMr. Asher was being confronted [during the home invasion incident]. And basically, when she was questioned extens ively . . . she showed a total l ack of judgment as to how this could have been a dange rous situation for [the chil d].

There was significant domestic violence in Intervener’s home pe rpetrated by defendant, whom Intervener constantly enabled. The child was placed in danger when Intervener decided to take her along on a confrontation defendant had with a friend, which is part of the reason she was substantiated for neglect. There was evidence that, even when forbidden to do so, Intervener allowed defendant to have contact with the child. Moreover, th e child had clearly been coached. Haugen testified that such coachi ng damaged the child’s emotion al well-being.

Additionally, when looking at fact or (d) under the CCA best in terest factors– the length of time the child has lived in a stable satisfactory environmen t and the desirability of maintaining that environment – the trial cour t concluded that Intervener’s many moves and the lack of safety caused it to “slightly” favor plaintiff.

3. (c) the grandparent’s moral fitness and

(d) the grandparent’s men tal and physical health

The trial court found that factors (c) and (d) weighed against visitation for the same reason it found against Intervener in the custody analysis. In its custody analysis, the trial court had noted that “neither party has an exemplary history as it re lates to [moral fitness].” It also noted, however, that Intervener’s behavior of pandering to or c ondoning defendant’s behavior caused it to “slightly” favor plaintiff. On appeal, plaintiff complains that the trial court did not give sufficient weight to this f actor, pointing out that the tr ial court had found that Intervener had intentionally lied while testif ying, lied to police to prevent defendant from being arrested, excused her son’s bad behavior, and intentionally alienated the child from plaintiff. Again, absent a more detailed finding, we are inclined to believe that the trial court failed to give this particular factor proper weight.

4. (e) the child’s reasonable pref erence, if the court conside rs the child to be of sufficient age to express a preference

The trial court considered the c hild’s reasonable preferences. As the plaintiff correctly notes, there was little value in interviewing the child where t he evidence at trial clearly revealed that she had been coached.-36- 5. (f) the effect on the child of hostility between the grandp arent and the parent of the child

The trial court noted:

It does appear that the parties have been able to in fact get a long somewhat as it relates to the exchanges, et cetera, and as a result the Court will find that in fact, hopefully, the parties can get past any animosity they have whe n this case is concluded, but the Court will fi nd that that factor does favor grandparenting time.

In fact, hostility permeated these proceedings. Intervener tri ed to prevent plaintiff from attending a doctor’s appointment for the child or visiting the child’s school. Intervener was twice held in contempt of court for failing to follow court ord ers regarding grandparenting time. Intervener made Facebook postings in which plaintiff was descri bed as mentally ill and a stranger to the child. Both Pancost and Haugen testified that the child’s emotional well-being was in peril when Intervener made negative comments about plain tiff. The trial court erred in finding that the factor favor ed grandparenting time.

6. (g) the willingness of the gra ndparent, except in the case of abuse or neglect, to encourage a close relationship between the c hild and the parent or parents of the child

The trial court concluded that, for the same reasons set forth under the custody factor (j) (willingness and ability to facilitate and encourage a close an d continued relationship), the factor did not favor visitation. In analy zing factor (j), the trial c ourt had concluded:

In this particular matter, t he testimony was that Ms. Weddingt on, when the Plaintiff went to the doctor’s office, that Ms. Weddington told her to wait in the lobby. Ms. Weddington told the Plaintiff that --- when she was at school that she was not welcome at school. She told her she wouldn’t be able t o – she wouldn’t be able to get a report card without a court order, and she – M s. Weddington objected to having the maternal gr andparents supe rvise any pare nting time.

And the Court, likewise, believes as it relates to this issue of the car chase, there was this car chase in which she basically characterizes i t a car chase, the Court doesn’t – believes that they were followed, but the Court doesn’t believe that it was a car chase in this particular matter. And I think that the way that Ms. Weddington has approached a number of th ings in this matte r have in fact impacted the way that [the child] views her mother in this particular case

. Ms. Haueter testified that Ms. Weddington and the Defendant di scussed the Plaintiff in front of [the child] and the – basically the only reason for such conduct would be to alienate the child from the parent

. Ms. Weddington is likewise – has a – a Facebook post that she admitted to, stating that [the child] was living with a stranger and at a stranger’s home and feeling so sad. In this particular case, at some point, the ch ild would be able to view that and see that, and that is not conducive to esta blishing a parent/child relationship.-37- Additionally, when Ms. Weddingt on was questioned by Mr. Clore back on June 18 th as to whether she credited Plaintiff with any improvement, Ms. Weddington would not acknowledge that she had improved her life in any way. She wouldn’t even acknowledge the improved housing, the stable job, and she wouldn’t acknowledge that the Plaintiff had in fact gained cont rol of her drug issues; notwithstanding the fact t hat she had had a number [of] negative drug
tests.

These statements and conduct belie any ability on behalf of Ms. Weddington to establish and continue a parent/child relationship between [the child] and the Plaintiff mother

. So as a result, the Court will find that that factor does favo r the Plaintiff mother. [Emphasis added.]

On appeal, plaintiff complains that the trial court did not gi ve sufficient weight to this factor. We are inclined to agree.

7. (h) any history of physical, emo tional, or sexual abuse or neglect of any child by the grandparent

The trial court did not give the factor weight even though Int ervener had been substantiated for neglect. Incr edibly, the trial court noted that it was “mindful of the CPS investigation in this particular case, and the Court will consi der that, but the Court feels that to be minimal in this particular matter on that particular action, so I’m not giving a lot of – of weight in this particular case.” CPS s ubstantiated Intervener for her failure to protect the child from defendant’s criminal and violen t behavior. That was perhaps the theme of the entire custody debate – whether and if Intervener was capable of protecting th e child. It was error for the court to minimize this factor, especially when it should have conside red that, not only was Intervener substantiated, but she was completely uncooperative.

8. (i) whether the parent’s decision to deny, or lack of an of fer of, grandparenting time is related to the child’s well-be ing or is for some ot her unrelated reason

The trial court concluded that it did not feel that plaintiff acted out of ill will “but the Court does find that in fact it would adversely affect the mino r child if this contact was cut off.” Again, “the Due Process Clause does not permit a State to infri nge on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Troxel , 530 US at 72-73. Plaintiff was determined to be a fit parent and the trial court found that plaintiff’s “decision” to disallow grand parenting time was not motivated by ill will. The trial court simpl y substituted its judgment for plaintiff’s.

9. (j) any other factor relevan t to the physical and psycholog ical well-being of the child

Finally, the trial court noted that the child had come to depe nd upon Intervener and, therefore, the factor favored grandparenting time. Once again, absent any expert testimony on this direct issue, the trial court appears to have given this f actor undue weight.-38- After weighing all of these factors, the trial court concluded that “the grandmother has met the burden by a preponderance of the evidence that in fact it would be a – the child would be placed at substantial risk of harm to the child’s mental, physi cal, and emotional health if in fact that contact is cut off.”

We once again note that the issue of grandparenting visitation was not properly before the court. We also agree with plaintiff that when taken as a whole , and on this record, the factors “strongly predominate agains t any grant of vi sitation.”

That portion of the trial court’s order granting grandparentin g visitation is vacated. The custody order is otherwise affirmed. The trial court is furthe r directed not to revisit the issue of grandparenting time unless Intervener brings a proper motion un der MCL 722.27b(3). As the prevailing party, plainti ff may tax costs. MCR 7.219.

/s/ Kirsten Frank Kelly /s/ Michael F. Gadola /s/ Karen M. Fort Hood