Michigan Children's Law Blog

Federal Judge Rules Juveniles Sentenced to Life are Eligible for Parole

Inmates sentenced to life in prison for murder as juveniles are eligible for parole and must receive a “fair and meaningful” chance at leaving prison, a federal judge said Wednesday.

The order from U.S. District Judge John Corbett O’Meara comes six months after the U.S. Supreme Court struck down mandatory no-parole sentences for juveniles.  Juveniles sentenced to life in prison before the Supreme Court decision “will be eligible and considered for parole,” O’Meara wrote. “It remains to be determined how that process will work and what procedures should be in place to ensure that plaintiffs are fairly considered for parole.”

The web site for the Eastern District of Michigan was down when I checked it this evening. I will provide a copy of the opinion when I can access it.

In re Morrow – Reasonable Efforts

In this case, Father’s rights were terminated under MCL 712A.19b(3)(a)(ii) – desertion for 91 or more days – and MCL 712A.19b(3)(g).  The Father lived in Mississippi and had scant contact with the child.  Mother had custody of the child and was brought into the court’s jurisdiction based on allegations against Mother.  The plan was reunification with Mother.  Father was not active in the case because he wished for reunification to proceed with Mother.

At some point, Mother voluntarily terminated her parental rights.   DHS failed to provide the father a case service plan, a home visit, a referral for services, and in general made no other efforts at reunification until the mother’s rights were terminated.  By failing to look at possible reunification with father, despite his interest, there was a failure to make reasonable efforts toward reunification.

A failure to make reasonable efforts at reunification may prevent petitioner from establishing the statutory grounds for termination.  In re Newman, 189 Mich App 61 (1991).  The court also found termination on abandonment was premature because Father regularly spoke to and visited the child before the trial court suspended visitation.

Finally, the Court found that the trial court erred in its best interest’s finding.  The only evidence presented was 3 supervised visits, which went well.  The Court held that the trial court had an insufficient basis to find termination of Father’s parental rights was in the child’s best interests.

The Court remanded for further evaluation and services.

You can view or download the case here:  In re Morrow

Justice Corrigan to be appointed head of DHS

I am starting to see reports that Governor-elect Rick Snyder is expected to appoint Justice Maura Corrigan director of the Department of Human Services.  Tim Skubick is reporting this, so it is reliable information.  Justice Corrigan has an extensive background with foster care and adoptive services.  Of course, this also means that Snyder will be appointing a new Supreme Court Justice to fill Corrigan’s seat.

With Corrigan’s experience and leadership on child welfare issues in both the Court of Appeals and the Supreme Court, she is a natural pick.  Clearly, Snyder has done his homework and is making good on his promise to bring Michigan into compliance with the consent judgment.

In re Burnett – improvements by the parents since removal

I find this case interesting because it results from an appeal by the L-GAL on behalf of the minor child.  The child came into care on a temporary wardship petition due to allegations against mother and father.  The children were initially brought into care due to some pretty severe environmental neglect and mental health issues on the part of mother.  After the Court assumed jurisdiction, both parents showed evidence of improvement.  There was still an issue of the home’s cleanliness , but the parents had made significant improvements.

A supplemental petition was filed under MCL 712A.19b(3)(c)(i), (g) and (j).  The trial court determined that the evidence failed to show that the conditions that led to the adjudication continued to exist and that the parents had complied with the parent-agency agreement.  The trial court also returned the child to the parents following the denial of the petition to terminate their parental rights.

The Court of Appeals affirmed the trial court finding that there was no clear error in the Court’s determination that a statutory basis was not established.  The Court also determined that the court did not abuse its discretion in returning the children home.

At the end of the day, I think this case benefited from the trial court’s findings and the application of the clear error and abuse of discretion standards.  This allowed the Court to give a great deal of deference to the trial court’s decision.  The condition of the home was still poor despite the improvements made by the parents, but the trial court relied on the substantial improvement made by the parents against the previous condition of the home.  The argument that the parents need not completely remedy the circumstances that led to the removal, but that they need only make improvements such that the children could return home was successful in this case.

You can view or download the case here: In re Burnett

In re Beck – Supreme Court Opinion – Child Support

The Supreme Court affirmed the Court of Appeals and Trial Court’s finding that the child support obligation continues after termination of parental rights unless otherwise ordered.

The facts of the case are fairly straightforward.  Father’s parental rights were terminated.  At termination, the Trial Court ordered that Respondent father’s  child support obligation continue pursuant to the divorce judgment.

Father appealed.  The Court of Appeals affirmed.  Father filed an application for leave with the Supreme Court, which agreed to take up the case.

In a unanimous decision, the Supreme Court affirmed the Court of Appeals, but employed different reasoning.  The Supreme Court held, “the statutory structure indicates the Legislature’s determination that parental rights are distinct from parental obligations, and nothing in the statutory structure indicates that the loss of parental rights automatically results in the loss of parental obligations.  Rather, a parental obligation continues “unless a court of competent jurisdiction modifies or terminates the obligation . . . .”” citing MCL 722.3(1).

The opinion, written by Justice Young, initially dispenses with Father’s constitutional claim that his right to due process was violated by continuing his support obligation after his parental rights were terminated.  The Court found there is no auhtority “holding that a parent has either a state or federal constitutional entitlement to have his child support obligation suspended when his parental rights have been terminated.”

The opinion does a very nice job outlining the parental rights outlined by statute in MCL 722.1 through 722.6.  Parental obligations are outlined in MCL 722.3, including the obligation to support the child. The Court found that because rights under the statute are distinguished from obligations, an order terminating parental rights does not similarly terminate parental responsibilities.  The Court points out that MCL 712A.19b clearly states it only provides a mechanism for terminating parental rights.  In other words, the terminated parent loses any entitlement to the “custody, control, services and earnings of the minor . . . .” MCL 722.2.

While this opinion leaves the ultimate rule that the duty to continue to pay child support continues after a parent’s parental rights are terminated, it provides us with a much clearer legal analysis.

The case does leave us with some unanswered questions.  Does the trial court have the discretion to terminate child support when rights are terminated?  Does the termination of parental rights give the state, where the child is a state ward, standing to seek modifications of child support?  Where the child is in the custody of DHS, could DHS show cause a parent for non-payment or seek modification?  Must the Court re-direct support payments to the state where both parents’ rights are terminated?

I am sure we will see the answers to these questions soon.

You can read or download the opinion here: In re Beck

In re CW – Section 45 Hearings

I always image the MCI Superintendent like the Wizard of Oz – an all-powerful man behind the curtain.  The MCI Superintendent “has the power to make decisions on behalf of” children who are wards of the state, MCL 400.203(2), including the authority to consent to adoption. MCL 400.209(1).  If the superintendent denies a petitioner’s request for consent to adopt, the petitioner may file a motion with the court alleging that the superintendent’s decision was arbitrary and capricious. MCL 710.45(2).  The court must determine whether the petitioner has shown by clear and convincing evidence that the decision was arbitrary and capricious. MCL 710.45(7) & (8); In re Cotton, 208 Mich App 180, 185-187 (1994).  Because the MCI Superintendent has such broad discretion and the standard for review is so high, most Section 45 motions are denied and appellate courts  generally uphold that denial.

In In re CW, the children were placed in the care of the Martins for three years.  After the parents’ parental rights were terminated, the Martins began the process to adopt the children.  The adoption was cut short because of an incident in which it was alleged that a developmentally disabled adult that lived with the Martins abused one of the children.  Based on the allegations, the children were removed from the Martins’ care and placed with the Rabers.  Due to the allegations, the adoption was halted.  After approximately a year of administrative wrangling, it was ultimately determined that the abuse allegations were unfounded and the Martins did not fail to protect the child.

After the Martins were cleared of any abuse or neglect, the LGAL requested that the boys be returned to the Martins, but the boys remained with the Rabers and the MCI Superintendent had already granted consent for the Rabers to adopt them.  While it appeared he would reconsider his decision, he ultimately stuck with his decision to consent to adoption by the Rabers.  Essentially, the MCI Superintendent found “it was not in the children’s best interests to be removed from the Rabers’ home where they had lived and formed stable connections since June 2007,” among other reasons.

The Martins moved for court review of the Superintendent’s decision under MCL 710.45, arguing that his decision was based on inaccurate and incomplete information and alleging that he had blindly deferred to the recommendations of local DHS officials.  The Martins made an offer of proof outlining additional testimony that the Superintendent ignored significant evidence in their favor as well as evidence refuting his positive findings about the Rabers.  The trial court refused to admit the proffered evidence and dismissed the Martins’ petition for review.  The trial court opined that the court could not consider whether the Superintendent’s decision was right or wrong, or even whether it was based on “bad” information given to him. Rather, the court could only consider whether the decision seemed “reasoned.”

The Martins appealed.  The majority affirmed the trial court’s dismissal holding the proffered evidence “was insufficient for the trial court to have concluded that there were no good reasons for [the Superintendent] to have withheld consent.”  Judge Shapiro Dissented.  Judge Shapiro found that the court’s duty required it to evaluate whether the Superintendent’s articulated reasons were made with consideration for the children’s individual circumstances and thus whether his reasons were valid in light of the facts of the case.  Judge Shapiro further concluded that the excluded evidence could have changed the outcome.

The Martins filed an application for leave to appeal to the Supreme Court.  In lieu of granting leave to appeal, the Supreme Court issued an order reversing the trial court’s dismissal of the Martin’s motion, adopting Judge Shapiro’s dissenting opinion.   Justice Corrigan concurred in the Order, but wrote that the lower courts have misapplied the standard for reviewing the MCI Superintendent’s consent to an adoption under Section 45.  She held that courts have established an almost impossible burden.  She held that the accuracy and completeness of facts underlying a Superintendent’s decision are necessary for court review under MCL 750.145.

Based on this decision, it is appropriate to explore whether the MCI Superintendent’s determination was based on 1) a full and complete record regarding the facts and circumstances surrounding the child and 2) an accurate set of facts.  There appear to be some cracks in the nearly impossible standard at Section 45 hearings.

You can download the Supreme Court’s Order here: In re CW (Supreme Ct)

You can download the Court of Appeals’ majority opinion here: In re CW (Majority)

You can download the Court of Appeals dissenting opinion here: In re CW (Dissent)

In re Thomas

Well, well, well.  It appears I have caused a little bit of a stir among those who regularly practice in the area of child protection law.

On December 18, 2009, the Trial Court terminated mother’s parental rights to her one year old daughter. Her parental rights to five other children were previously terminated in 2004, and her parental rights to a sixth child were terminated in 2006. This most recent termination was her seventh.  Mother had made great strides since the most recent termination. I was appointed to represent Mother on appeal.

On December 7, 2010, the Court of Appeals issued an opinion reversing the trial court.  The Court wrote:

“Reviewing the evidence as a whole, we harbor serious doubts that the statutory grounds for termination were established by clear and convincing evidence as to (b)(ii), (g), and (j). A trial court may terminate parental rights pursuant to MCL 712A.19b(3)(i) where:

Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful.

Assuming, without deciding, that the above statutory basis was clearly and convincingly established, we nevertheless reverse because clear and convincing evidence did not establish that termination was in the child’s best interests.

What has most concerned about this opinion is the Court of Appeal’s application of the clear and convincing evidence standard to the best interest determination.  Both MCR 3.977 and MCL 712A.19b(5) are silent as to the burden of proof to be applied at best interests.  This case is significant because the Court of Appeals has interpreted the statute and the Court Rule to apply the clear and convincing evidence standard as opposed to preponderance of the evidence.  For those you that follow this blog, you know I have commented that there is some ambiguity in the statute and court rule as to the applicable burden of proof (see here).

What I think is the most important thing to take away from this case is that mother had made great strides to correct the conditions that led to the previous termination.  The Court noted “[mother] is [not] the same person that she was when her rights were terminated to the other children some years prior, and none of the prosecution’s witnesses testified that respondent’s parental rights should be terminated or that termination would be in the child’s best interests.”  Regardless of the burden of proof, Mother was in a position to be given a chance to reunify with her children.

Because I am the attorney on the case, I hesitate to comment too much on the matter until it reaches an ultimate resolution.  I promise to post more regarding the burden of proof at best interests in the future.

You can download or view the case here:  In re Thomas

DHS Contempt: on again/off again

The court-appointed monitor of the Department of Human Services’ 2008 reform agreement issued a report this week that found the department has failed to comply  with the court-ordered changes.  As a result, on Monday,  Children’s Rights threatened to file a motion to hold DHS in contempt and seek the appointment of a receiver to enact the required reforms.  According to the report, DHS is working hard to implement the changes required to protect children in foster care, but “their best efforts are often undone by poor planning and lack of adequate coordination.”  To use the language of child protection law, without regard to intent, DHS has failed provide the children in  its care with proper or necessary support, education, medical, surgical, or other care necessary for their health or morals.  In other words, if the state were a parent, the Court would have to take jurisdiction of these children.

Shortly after Children’s Rights indicated they were seeking a receiver, they apparently received a call from the Governor-elect Rick Snyder, who assured them that his incoming administration will make fixing DHS a priority.  Based on this, Children’s Rights signaled they were going to hold off on any such request.

I certainly hope Gov. Snyder can improve the state of foster care over at DHS, but I am doubtful.  Gov. Snyder ran on a platform of “streamlining” Michigan government.  This usually means cutting budgets and that philosophy does not mesh well with the harsh reality that any improvement in Michigan’s Foster Care system is going to cost money – and lots of it.  You cannot find “efficiencies” in foster care.  In a perfectly efficient world, all parents would adequately care for their children and no state intervention would be necessary.

Whether it is parents or the state paying the bill, every parent knows it costs money to raise a child.  The U.S.D.A. reports it now costs an average middle-income American family $222,360 to raise a child from birth to 18, for an average of $12, 353.33 per year.  The question one has to ask is whether the political will is there to properly fund Michigan’s foster care system.

You can read the third period monitoring report here.

OCBA Juvenile Brown Bag – State of the Law

For those of you interested, my husband, Ryan, is speaking at the Oakland County Bar Association Juvenile Brown Bag Lecture series today at noon.  The topic is the State of the Law.  He will be covering developments in Juvenile law over the past year.   There is quite a bit to cover.  Some of the material is from this web site, but there are additional written materials also.  I will try to post the additional stuff on here soon.  You can learn more about the OCBA Juvenile Brown Bag here: http://www.ocba.org/12-00-noon–Juvenile-Brown-Bag.id.1672.htm.  If you miss it, I believe the seminar is being taped.

In re D.M. Kleyla

The child initially came to the attention of DHS on allegations of neglect on the part of mother.  The initial petition seeking court jurisdiction alleged, inter alia, that the Respondent Father was unable to care properly for the child due to his current incarceration, legal troubles, lack of employment, unstable housing, lack of transportation and lack of consistent progress even though many services were intact for support.  In early November, 2007 a pretrial hearing was conducted and the CPS worker testified the father was in Jackson Correctional Facility awaiting a parole board violation hearing.  The petition was authorized and both parents were appointed counsel.

On February 14, 2008, the trial court took jurisdiction based on the mother’s plea to certain allegations in the petition.  The father remained incarcerated and no arrangements were made for his participation in the hearing.  Respondent’s counsel indicated his client knew of the hearing and was going to be incarcerated for the near to long-term future.  The CPS worker indicated he would develop a case service plan for the mother.  However, no one mentioned a plan for the father.  In addition, the respondent’s counsel did not even propose that respondent participate in future hearings by telephone.

At the next two statutory review hearings, no arrangements were made for the father to participate by phone.  The DHS worker indicated that no service plan was developed for the father “because he’s still incarcerated at this time.”

At the third review hearing, the court informed the respondent (who participated by phone) that “you understand . . . that we are not able to include you in any sort of plan, service plan, at this time because you are still incarcerated[,]”.  The father indicated that his outdate was October 3, 2009.  Yet at the September 2008 hearing (when the father again participated by phone) virtually no mention was made of him.  During the temporary jurisdiction phase, the father did not participate at the adjudication, disposition and the first three review hearings.

In November 2008, DHS filed a supplemental petition. At this time, Mother voluntarily relinquished her parental rights.

The trial court found that both MCL 712A.19(b)(3)(c)(i) and MCL 712A.19(b)(3)(h) had been proven and that it was in the child’s best interests to terminate his father’s rights.  First, the Court of Appeals indicated that because the prosecutor, court and respondent’s counsel failed to adhere to the procedures in MCR 2.004(B) and (C), Respondent was deprived of the opportunity to participate in all proceedings conducted from November 2007 to July 2008.  This, the Court of Appeals concluded, required a reversal of the order terminating the father’s parental rights.

Second, the Court held that DHS deliberately withheld service from the respondent with the approval of the trial court.  They focused on the mother and, in doing so, disregarded the father’s statutory rights.  Thus, like In re Mason, ___ Mich ___ (Docket #139795; decided 5/26/2010), the Court reversed and remanded the matter for DHS to provide services which they previously neglected to supply the father.

Finally, the Court indicated that the trial court proceeded to consider termination of the father’s rights based on different circumstances than those admitted by the mother, those proofs should have been established by legally admissible evidence.  The evidence introduced consisted largely of inadmissible hearsay including evidence that focused on an allegation the father had sexually abused his niece.  The father was never charged with this alleged act and he vehemently denied it.

You can view or download the case here: In re D.M. Kleyla