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Rollo v. Guerreso8/25/2005
UNPUBLISHED
Before: Wilder, P.J., and Fitzgerald and Kelly, JJ.
Plaintiff appeals as of right an order granting defendants' motions for summary disposition pursuant to MCR 2.116(C)(7), (C)(8) and (C)(10). For the following reasons, we affirm.
I.
This action arises from the alcohol-abuse induced death of plaintiff's former wife, Donna Rollo, on January 2, 2002, while she was the primary caretaker of their severely handicapped adopted daughter, Amanda Rollo. Plaintiff and Donna married in 1971 and divorced in 1998. In 1987, plaintiff and Donna adopted Amanda, a severely disabled fifteen-month-old child. Amanda is legally blind and non-verbal. She is unable to walk and has the mental abilities of a nine-month-old child. Donna Rollo ceased her employment as a registered nurse to care for Amanda full-time. In the mid-1990's Donna developed an alcohol abuse problem but never sought treatment. The couple's divorce decree provided they share joint legal custody and Donna retain physical custody of Amanda. On November 13, 2000, Donna contacted Macomb Oakland Regional Center (MORC) to seek respite care for Amanda. MORC arranged respite care for Amanda, several hours a week, through a short-term facility, beginning in March 2001. Amanda also attended school five days a week.
On May 11, 2001, Elaine Rork, R.N., a neighbor of Donna's, contacted Oakland County Child Protective Services (CPS) complaining of neglect and/or abuse of Amanda by Donna. The matter was assigned to defendant Sally Keys, an intake coordinator. Under CPS procedures, an intake coordinator has thirty days from the date of the referral to make a final determination or file a petition for removal, contingent on whether a preponderance of the evidence substantiates a complaint. Before CPS may petition for removal of a child from a home, both parents must be charged with neglect and all reasonable efforts to keep the child in the home have failed. After conducting a home visit and interviews with family, friends, and school personnel, Keys assessed Rork's complaint as a non-emergency.
Three days after Rork filed her complaint with CPS, plaintiff contacted MORC requesting group placement for Amanda. Little or no action was taken by MORC regarding plaintiff's concerns in deference to Donna's previously documented wishes as the custodial parent to continue Amanda's care in her present enviromenent. Plaintiff did not immediately pursue the matter.
On December 8, 2001 and December 11, 2001, Rork and Meaghan Korzeniewski, the Rollos' eldest daughter, visited Donna in her home. Rork and Korzeniewski believed Donna appeared weak and jaundiced, and on December 12, 2001, they convinced her to go to the hospital. At the hospital, she refused medical treatment and, against medical advice, left the facility that same evening.
Around this same time, plaintiff contacted MORC on December 14, 2001, seeking in-home assistance for Donna and Amanda. Meanwhile, Rork had filed a second complaint with CPS regarding Donna's alcohol abuse. CPS forwarded the complaint to Keys for further investigation.
Keys contacted plaintiff, who assured her that the family was meeting Amanda's needs and he was making efforts to arrange for additional services via MORC, but his status as the non-custodial parent hindered his efforts. Keys advised plaintiff of potential ways to obtain custody, but plaintiff expressed no interest in obtaining custody of Amanda, explaining that he was physically incapable of caring for her.
Keys also spoke with school officials and was informed that Amanda had missed school nineteen times between October 8, 2001, and December 13, 2001,
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