Everything is supported with documentation which has been submitted into evidence.
The Court of Appeals denied Ms. Bruns application as “moot.” Ms. Bruns has now petitioned the Michigan Supreme Court which ultimately denied Ms. Bruns application for leave to appeal, because it was “not persuaded that the questions presented should be reviewed.”
Ms. Bruns reconsideration is warranted, because there was no adjudication on the merits when no state court had discussed the merits of the claims and the Michigan Court of Appeals denied leave to appeal in orders of one word “moot”
Moreover, the COA was not considering the appropriate standard of review to readdress custody, considering the November 11, 2007 Ex Parte petition did not contain a legal assertion that probable cause or a change of circumstances existed to terminated Ms. Bruns custody. Considering all allegations, abuse, neglect and mental harm were recanted, and unsubstantiated to seek a modification of custody, it must be determined the existence of proper cause and if a change of circumstances by clear and convincing evidence, limit its decision on events occurring after entry of the November 9, 2004 order. The conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed. [259 Mich App at 511, 513 (emphasis added except for “significant” which appears in the original).]: (Exh. 1). Corporan v Henton, 282 Mich App 599, 603-604; 766 NW2d 903 (2009).
It has been repeatedly alleged Ms. Bruns “caused the children to be fearful of their father and made them refuse to visit with or telephone him” The facts were concealed that it was the father Kim Bruns- not Ms. Bruns- who had abused the children on January 19, 2001, and December 8, 2006 and abandoned his parental role on November 9, 2004. The COA may have various reasons for denying an application for leave to appeal “ moot” Ms. Bruns cannot discern from that language alone whether that decision was based on the merits of the case, Ms. Bruns cannot conclude that it was an “adjudication on the merits” Accordingly, de novo review is appropriate.
QUESTIONS PRESENTED:
1) Did the COA ruling July 1, 2010 allow the trial court’s December 2, 2008 ruling to stand which terminated Ms. Bruns sole, legal, physical custody on November 9, 2004 based on the merits that fraud and perjury existed in the original petition were recanted and unsubstantiated on September 8, 2008, (ex. 24) and supported by December 11, 2008 order (Ex.25)?
2) Did the COA July 1, 2010 ruling allow the December 2, 2008 ruling to stand specifically considering in Michigan to seek a modification of custody, it must be determined the existence of proper cause and a change of circumstances by clear and convincing evidence when CPS Nyela Bolden’s original allegations neglect, abuse and mental harm were recanted and unsubstantiated on September 8, 2008 the November 11, 2007 (Ex. 21) and Oliver’s Affidavit (Ex 26) Ex Parte petition did not contain a legal assertion that probable cause or a change of circumstances existed to terminated Ms. Bruns custody?
3) Did the COA July 1, 2010 ruling allow the December 2, 2008 order of the trial court to stand, despite the fact that the trial Judge failed to appoint the minor children (Oliver and Alida) legal representation, which is mandated pursuant to the Child Abuse Prevention Act “requires the state to provide GAL for all children in abuse and neglect cases” violating the minor children’s statutory and constitutional right to counsel pursuant to MCL 722.630, MCL 712A.17c (7) and MCR 3.915(B)(2), and public policy supports a child’s right to counsel – and knowingly suppressing the child’s wishes and the best interest of the child? See (Ex 40), Alida’s affidavit that clearly express her wishes, which stem from the father having abandoned the family for two years and her memories of being molested by father (Exhibit 1).
4) Did the COA July 1, 2010 ruling allow the trial court ruling to stand realizing Judge Carpenter did not report to the proper authorities the fraud and perjury that robbed the court of jurisdiction by Attorney Joan Irons, Kim Bruns and Kent County Child Protective Services Nyela Bolden? pursuant to MCR 2.612(C)(1) and MCR 2.611 (B) "a party may be granted relief from a final judgment"? 1) “mistake, inadvertent, surprise, or excusable neglect”, 2) “Newly acquired evidence, which by due diligence could not have been discovered in time to move for a new trial under MCR 2.611(B)”,3) “Fraud (intrinsic or extrinsic), misrepresentation, or their misconduct by an adverse party”.
4) “The judgment is void”.
Since the beginning Ms. Bruns has been forced to defend herself, her right to parent her children without governmental interference against a pattern and practice of false allegations of child abuse, violations of due process rights and Ms. Bruns pro se rights have been violated and those of her minor children as Ms. Bruns’ original lawyers took her money and sold her out, and failed to submit to the Court that Ms. Bruns has been investigated 26 times and found to be a good parent who has injured no one and broken no law, The lower court did not have jurisdiction to entertain a change of custody when there was no emergency and did not have probable cause that any “emergency” existed. The Michigan Court of Appeals and the US Supreme Court have ruled repeatedly that “when jurisdiction is challenged” the merits of the case are to be halted and jurisdiction addressed before continuing “on the merits.
In the instant case, a party’s right to due process presents a question of constitutional law, which is reviewed de novo. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009). Ms. Bruns argues that her Appeals Attorney Mikhail Albuseiri he was coerced into not raising the issues of fraud and perjury that robbed the court of jurisdiction. The issues asserting the children’s right to counsel was violated and all abuse allegations were recanted and unsubstantiated; therefore these issues were not preserved claims for reconsideration constitutes cause for denovo review. The Michigan Court reviews unpreserved issues for plain error affecting a party’s substantial rights. Wolford v Duncan, 279 Mich App 631, 637; 760 NW2d 253 (2008).
The facts are being pled with particularity as required by Federal Rule 26. The December 11, 2007 Ex Parte Motion “Emergency” Petition for a change of custody. At the September 8, 2002 evidentary hearing, in connection with these allegations CPS Bolden testified her allegations were erred and unsubstantiated based on her testimony Ms. Bruns was found not guilty of each and every allegation contained in the ex parte motion and her report. (Exhibit 21)
It is clearly establishes according to the State of Michigan Governors Task Force on Children’s Justice and Department of Human Services-Forensic Child Abuse or Neglect children have been removed from a parent’s home and parental rights have been terminated because a parent has failed to protect the children from an abusive spouse.
The COA up held the trial court’s December 2, 2008 ruling terminating Ms. Bruns custodial rights ignoring the facts: Mr. Bruns was substantiated for child abuse 1/19/01, 12/8/06 and on October 2004 amended on November 9, 2004 as a result, it was clearly established Mr. Bruns abandoned his parental role, failed to provide adequate housing or care for his children from 2002-2004.
CONSTITUTIONAL RIGHT TO LEGAL COUNSEL
Pursuant to Child Abuse Prevention and Treatment Act (CAPTA): Requires that states provide guardians ad litem (GAL) for all children, (Oliver and Alida) in child abuse and neglect proceedings.
Failure to appoint legal representation for Oliver and Alida violates and deprives them of due process and public policy supports a child’s right to counsel: pursuant to MCL 722.630, MCL 712A.17c (7) and MCR 3.915(B)(2) and a meaningful relationship with their mother.
Specifically, on November 21, 2007 CPS Bolen reported “I met with Oliver and interview him utilizing the Forensic Interviewing Method at his friend’s house in Grandville. Also, present was his father Kim Bruns and Step mother Sandy Bruns.” (Exhibit 21)
A) A CPS worker or other professional who interviews a child while a parent or policeman who is in uniform is present, will have violated the Forensic Interviewing Protocol because having a parent or a person of such obvious authority in the room the suspicion that the child’s responses to questions are not reliable. The child may be answering the way he thinks the parent (who may be encouraging the child to say bad things about the other parent) or the policeman wants him to answer.
C) It is well known that children like to please their parents, teachers, policemen, and others that their parents have encouraged them to trust.
B) The interviewer is supposed to talk to the child in a manner that will not put words into the child’s mouth that can substantiate abuse that really did not occur. (EX 26)
CPS Bolden a professional interviewed Oliver while Mr. Bruns and his wife were present, violated the Forensic Interviewing Protocol in a manner that put words into his mouth that substantiated abuse that really did not occur. The violation of the Forensic Interviewing Protocol creates the suspicion that the Oliver’s responses to questions were not reliable.
On July, 28, 2009 Oliver Bruns retracted his allegations of abuse and further reported the “CPS exaggerated and pushed the situation far beyond a point of reason.” (Exhibit 26)
The September 8, 2008 testimony recantation of the allegations in the original report could not be substantiated as a result, therefore the November 11, 2007 petition to was absent legal assertion and the December 2, 2008 custody order is void and should be reversed.
In support of CPS Bolden’s September 8, 2008 testimony, Administrative Law Judge Jones on December 11, 2008 reviewed of the evidence and determined: “The evidence on the record does not show child abuse or neglect or evidence or actual harm, negligent treatment or that Ms. Bruns placed Alida in an unreasonable risk and the great weight of evidence there was not threatened harm.
Petitioner’s (Ms. Bruns) dispute was resolved by the time CPS Bolden’s investigation. Alida reported no neglect or abuse (although in regular conflict with her father); she wanted to continue living with “Petitioner.” (Ms. Bruns) (Exhibit 25) The Department was ordered to amend the record, report and entry on Central Registry to reflect the “Petitioner” (Ms. Bruns) did not commit child abuse or neglect of Alida within 10 days.
In defiance of the evidence there has to be some showing along the way that Ms. Bruns is not a fit mother or something else which could be recognized to invoke a legal change of circumstances.
On September 8, 2008 CPS Bolden testified (original transcript pg 12,ln 19)
“Mr. Bruns has been twice substantiated for child abuse? Yes, I was aware.”
Pursuant to MCL 722.638 requires DHS to file a petition when DHS determines a preponderance of evidence of child abuse or neglect of a child or a sibling includes one or more of the following: Grounds for Termination of Parental Rights in Michigan specific grounds for termination of parental rights include the following: (a) Desertion. The child has been deserted or abandoned under any of the following circumstances (EX 1)
(b) Parent Harmed Child or Sibling. The child or a sibling of the child has suffered physical injury or physical or sexual abuse under one or more of the following circumstances:
(i) The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent's home. (Ex 1-8)
VICTIMS’ RIGHTS AMENDMENT (C) Section 71.004 for the U.S. Constitution:” the court shall not appoint as sole managing conservator a party who has a history of committing family violence.”
MICHIGAN SUPREME COURT CUSTODY ACT: “There is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child
Therefore, the December 2, 2008 custody order is void and should be reversed.
Ms. Bruns finds fault with the COA failure to not specifically and explicitly state the findings of facts, in accordance with the mandates set forth in MCL 722.27 (1)(c), failure to do so is reversible err.
Ms. Bruns finds faults the COA opinion to affirm the December 2, 2008 modification of custody, without finding that an established custodial environment existed. According to MCL 722.27 (1) (c), The custodial environment was established upon the entry of the Consent Judgment, November 19, 2002 (Exhibit 20).
The change of circumstances was limited to events occurring after entry of the October 13 and November 9, 2004 orders: (Exh. 1). “The defendant (Ms. Bruns) shall have sole legal and physical custody of the parties minor children, because the court finds that the Plaintiff has abandoned his role as a parent.” as the father did not attempt to contact the children until the defendant filed her petition); Corporan v Henton, 282 Mich App 599, 603-604; 766 NW2d 903 (2009), Quinn v Mouw-Quinn, 552 NW2d 843 (SD, 1996) (Exh. 4)
Specifically considering the orders entered previously by the trial court all the parties minor children naturally looked to Ms. Bruns for guidance, discipline, the necessities of life, and parental comfort considering she was the sole parent that kept the family together during the two years the father Kim Bruns abandoned his parental role.
The definitions of a change in circumstances and proper cause found in
Vodvarka, by their terms, are specifically limited to application a change in a child’s custodial situation. The Michigan COA has previously concluded that in context, proper cause means one or more appropriate grounds that have or could have a significant effect on the child’s life.
Specifically, Kim Bruns testimony was allowed to remain on the record and Ms. Bruns was denied cross examination a violation of Ms. Bruns Sixth Amendment right to confront her accuser and to provide an accurate record to be adequately considered.
September 8, 2008 transcript Pg 51, ln 3 Attorney Irons: Your Honor, I object. This is a custody hearing, and only things admissible since the last custody order are to be heard.
Ln 6: Judge Carpenter: “I think, Miss Appel, that’s true. If we start going back at length we could reiterated the entire marital history. And what I believe is most relevant is any changes since the last custody order which placed the children in the care of Plaintiff (Kim Bruns). I’m still not real clear on the date of that, but it was not that long ago.
Now in this matter that is being referred to today there must be a change in circumstances or sufficient cause to change, that is rather recent, “what had changed” since the October 13 and November 9, 2004 custody order: (Exhibit 1) to make the existing custody order parenting time schedule modification. Just alleging Ms. Bruns abused, neglected and mental harmed Alida is not enough for the court to change custody.
I. Material Facts and Proceedings
The material facts of this case are not in dispute. Ms. Bruns married Kim Bruns, November 7, 1987. The marriage produced three children, Josiah (1/14/89), Oliver 7/21/90), Alida (5/27/97) and Kim Bruns adopted LaRae (10/07/77).
All the children had a close relationship and their strongest bond with Ms. Bruns. (Ex. 20) On January 19, 2001, Kent County Child Protective Services investigation substantiated the father (Kim Bruns) of child abuse to the minor child Oliver Bruns, DOB 7/21/90. Clarke v Wayne Circuit Judge, 193 Mich 33; 159 NW 387 (1916).
The facts are being pled with particularity as required by Federal Rule 26. On December 8, 2006, Kent County Child Protective Services again investigated and substantiated the father (Kim Bruns) of child abuse to the minor child Josiah, DOB 1/14/89. (See Ex. 1-8)
The facts are being pled with particularity as required by Federal Rule 26. On November 21, 2001 the trial court appointed Guardian Ad Litem-Attorney Mary Benedict. (Exhibit 9) for Josiah Bruns DOB 1/14/89, Oliver Bruns DOB 7/21/90 and Alida Bruns DOB 5/27/97.
On December 14, 2001, GAL-Attorney Benedict “Emergency” Petition unlawfully detaining Ms. Bruns Children alleging Ms. Bruns was “mentally abusive “and “a threat to the minor children.” Just alleging mental abuse was not enough for the court to detain the children or change custody. (Ex 19)
The GAL-Attorney Benedict did not complete or produce the children’s court ordered psychological evaluations by Dr. Steven Griffioen to support her allegations. (Ex.12)
The Judgment of divorced was entered on July 12, 2002 awarding the father custody. The parties entered: On November 19, 2002 a Consent Judgment the parties consent judgment changed custody. Ms. Bruns (defendant) was always the primary caretaker of the children and support would be awarded to neither party. (Ex. 20)
The trial court entered: Custody on October 13 and November 9, 2004: (Ex. 1) “The defendant (Ms. Bruns) shall have sole legal and physical custody of the parties minor children, because the court finds that the Plaintiff has abandoned his role as a parent.” as the father did not attempt to contact the children until the defendant filed her petition); Quinn v Mouw-Quinn, 552 NW2d 843 (SD, 1996) (Ex. 4)
Michigan COA Repeated and Elaborated False Allegations
Bolden and the Agency “documented” the tale told on December 11, 2007. (Exh.21) They alleged the 26 closed and unsubstantiated reports to the Agency were used to place Ms. Bruns on a central registry as a category II high risk for future abuse. This was a lie, Bolden and the Agency knew it. It has been repeatedly alleged Ms. Bruns “caused the children to be fearful of their father and made them refuse to visit with or telephone him” The facts were concealed that it was the father Kim Bruns- not Ms. Bruns- who had abused the children on January 19, 2001, and December 8, 2008 and abandoned his parental role on November 9, 2004.
The COA Inaccurately characterized Ms. Bruns and Summarize Facts Unfairly
In violation of established precepts, COA recites only the allegations without evidence prior to the November 9, 2004 custody order, ignoring the overwhelming contrary evidence. This case was not brought to decide whether Ms. Bruns daughter was abused or whether she coached, or exercised undue influence over her. Nor was this case brought to decide custody of her child, or whether custody was properly assigned in a family court proceeding.
This case was brought because Kent County CPS Social Worker Bolden, the Agency, Attorney Joan Irons and Kim Bruns lied, fabricated evidence, and suppressed exculpatory evidence all of which “triggered” the removal and continued detention of Ms. Bruns daughter.
COA Apply Incorrect Standards of Review
Without authority or analysis, Ms. Bruns characterized alleged errors on evidentiary rulings as reviewed under a denovo standard when the abuse of discretion standard clearly applies. Moreover, the COA failed to adequately identify purported errors at trial. Lastly Appellants failed to provide adequate record to demonstrate error, not to mention prejudicial error.
STATEMENT of FACTS
Ms. Bruns and the children were repeatedly denied assistance of counsel, and the right to a trial within 56 days pursuant to MCR 3.912 or 3.913.31and her 6th amendment right to face her accusers.
The CPS Agency knew there was no evidence to support their allegations against Ms. Bruns. They also know Ms. Bruns was a fit and proper parent. The evidence showed Ms. Bruns protected her children who were a priority in her life.
Indeed, Ms. Bruns Presented three psychological evaluations, the findings all confirmed Ms. Bruns could properly parent the children. (Ex. 27 & 28) On September 8, 2008 Dr. Makedonski, expert witness and the Josiah, Oliver and Alida’s therapist testified it would be detrimental for Alida not to return to Ms. Bruns care. (Ex. 30)
In Bolden’s report on November 21, 2007, she failed to disclose the conflict, was resolved before she arrived thus elevating the need for Alida’s removal.
The social worker understood her position of power and trust with the court, and that it was her word against Ms. Bruns. Since November 9, 2004 Ms. Bruns has complied with her obligation to produce the children for visits (and visitation in general since the court reinstated visitation after Kim Bruns had abandoned his parental role from 2002-2004).
Bolden testified at the September 8, 2008 Evidentiary hearing the children were in no danger remaining in Ms. Bruns custody due to the fact that her report was erred and the claims of abuse, neglect and mental harm could not be substantiated. Bolden admitted she failed to disclose that Ms. Bruns protected and properly supervised all her children (Josiah, Oliver and Alida).
Based on Bolden’s fabricated report and suppression of facts, the trial court witnessed the retraction of the abuse allegations at the September 8, 2008 evidentary hearing and proceeded with the removal of Alida and changed custody all without legal representation. At this point then the Court failed to dismiss the custody hearing because there was not clear and convincing evidence, Mr. Bruns did not meet the burden of proof, proper or sufficient basis for a hearing, nor has there been a sufficient change in circumstances since November 9, 2004.
PROLONGED DETENTION AND EXCALATING PROBLEMS
In this custody dispute, Ms. Bruns appeals an order granting legal and physical custody of the parties’ minor child (DOB 5/27/97). Because the trial court erred in awarding custody without determining a change in circumstances, probable cause, the existence of an established custodial environment and without considering the best interest factors, Ms. Bruns petitions for reversal of the December 2, 2008 order is void and must be reversed.
II. Analysis
In Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000), the COA set three
Standards of review applicable in custody appeals:
1) The great weight of the evidence standard applies to all findings of fact.
a) September 8, 2008 CPS Bolden recanted her original allegations her report was erred, “In fact there are NO substantiations for Ms. Bruns”. (Ex. 24)
b) The existence of an established custodial environment. Pursuant to MCL 722.27(1) (c), the father abandoned his parental role. (Exhibit 20)
b) November 9, 2004: (Exhibit 1) “the court finds that the Plaintiff has abandoned his role as a parent” (Ex. 4)
c) The father was substantiated for abuse of the minor child Oliver on 1/19/01 and again of the minor child Josiah on 12/9/06. (See Transcript)
The age of the child, the physical environment, and the child as to permanency of the relationship shall also be considered.” 726, 730; 418 NW2d 924 (1988). Even in fairness to the parties this standard cannot be abrogated. Soumis v Soumis, 218 Mich App 27, 34; 553 NW2d 619 (1996). These initial steps to changing custody—finding a "change of circumstance or proper cause" and not changing an "established custodial environment" without clear and convincing evidence—(recognizing the Legislature's intent in enacting the Child Custody Act. It is vitally important for the protection of the fundamental rights of the parties involved to have some indicia on the record showing that the court has satisfied itself that its custody determination was in the child’s best interests.
The COA deprived Ms. Bruns of the opportunity to inform the court of these facts by denying her petition for reconsideration because she was one day late.
In addition to the procedural problems existing in this case, Ms. Bruns submitted evidence that: (1) There are no substantiations against Ms. Bruns, (2) Oliver and Alida were deprived legal representation; (3) Kim Bruns had been twice substantiated for child abuse; (4) Kim Bruns abandoned his parental role and lost custody on November 9, 2004; (5) Kim Bruns exhibiting inappropriate behavior toward Ms. Bruns; and (6) Kim Bruns has repeatedly attempting to prohibit Ms. Bruns from visiting the child. Based on false allegations of child abuse the evidence presented demonstrates Kim Bruns has serious problems with parenting children, Given these serious allegations, each of which was essentially undisputed and directly related to Kim Bruns parenting skills, the Michigan Supreme Court is obligated to review the best interest factors and determine which parent should be the child's primary caregiver.
RELIEF SOUGHT III. Conclusion
In light of the foregoing, Ms. Bruns prays the December 2, 2008 custody order is void and reversed. Pursuant to MCR 2.612(C) (1), a party may be granted relief from a final judgment.
Dated this 25,Day of October, 2010. Respectfully Submitted,
Denise M. Bruns,
Pro Se Litigant
