Report calls for sweeping changes to child welfare system

I just found this article on the Detroit News website.  I will post more details as they become available.

UPDATE: I found a copy of the Child Welfare Task Force’s report online.  I am posting it on this site at the link below.  The entire report is over 180 pages long, so I doubt I will read it all.  The task force was made up of some parents, children in the child welfare system, purchase of service contractors, legislators, DHS representatives, etc.  Curiously, attorneys for parents and L-GALs were unrepresented.

Click here to download or view a  copy of the report: Child Welfare Task Force Report

Report calls for sweeping changes to child welfare system

Catherine Jun / The Detroit News

Detroit — A state-appointed task force today called for sweeping reforms in Michigan’s child welfare system with the goal of cutting the number of children placed outside the home by half.

The 143-page report makes detailed recommendations on how to improve children’s chances at permanent placement, garner more funding for preventative programs, and reduce worker caseloads and increase their training.

Pat Babcock, co-chair of the Michigan Child Welfare Improvement Task Force, said the goal was to reduce the number of children in out-of-home placements, particularly in foster care, by 50 percent by next year. The report also calls for dramatically reducing the ratio of case workers to children by hiring more employees. It also calls for expanding training for case workers to include cultural sensitivity training toward various ethnic groups, such as Native American families.

“We want to implement the overwhelming majority of this,” said Ismael Ahmed, director of the state Department of Human Services, at a press conference at the Skillman Foundation in Detroit. Ahmed said progress was under way on many of the recommendations.

But implementation of several of the recommendations will depend on increased state funding, specifically for prevention and early-intervention programs. Such requests could be met with resistance, however, especially at a time when state officials are sifting through possible emergency spending cuts in the face of a nearly $800 million deficit.

Still, task force members said that they will push Gov. Jennifer Granholm to prioritize spending on such programs. They will also continue to press for a proposed 5-cent-a-bottle increase in the tax on beer to raise revenue that could be used to combat child abuse and neglect. Legislators have so far been lukewarm to the idea.

“It’s going to save a lot of families and a lot of kids from falling through the cracks,” said Babcock, who is also former director of the Michigan Department of Human Services.

The report, titled “Improving Michigan’s Child Welfare System: Our Children. Our Future. Our Responsibility,” is the culmination of a year-long investigation by the task force, which included 85 lawmakers, child welfare advocates, university officials and families who had gone through the system.

Many of the changes, such as reducing case worker loads and increasing training, are mandated by a court order. They are terms to which the state agreed in a class action lawsuit settlement late last fall, filed by the New York-based advocacy group Children’s Rights. The group charged that the state’s welfare system was endangering the well-being of children too often. To meet the settlement’s conditions, the department is undergoing a five-year overhaul of its operations.

The report detailed many systemic problems, including the state’s over-reliance on out-of-home placement of children, a lack of uniform screening of children and families for treatment, and a lack of collaboration among agencies that often results in an interruption of help to families.

Court Rule Amendments

On April 14, 2009, the Michigan Supreme Court issued an order (ADM 2008-29) amending MCRs 3.901, 3.903, 3.921, 3.965, 3.975, 3.976, 3.977, and 3.978, and adopting new MCR 3.979, effective July 1, 2009. The amendments reflect the recent enactment of 2008 PA 199-203.  On July 11, 2008, a series of bills with immediate effect were signed into law by Governor Granholm, whcih made sweeping changes to child protective law in Michigan. Since these laws went into effect, the Court Rules were unchanged and reflected the old statutory scheme.  These amendments implement those statutory changes.

As is the usual practice on this site, the administrative order has been uploaded to the site and there is a link below.  Here is a brief summary of some of the “high” points of these Court Rule amendments:

• The Court Rules are amended to include provisions for juvenile guardians under MCL 712A.19a and MCL 712A.19c. Under the new law, at a permanency planning hearing, the court may determine that neither termination of parental rights nor returning the child home is appropriate and may order an “alternative placement option.”  One of those options is the appointment of a guardian of the child.  The Act grants the guardian the same powers and duties of a guardian appointed under the Estates and Protected Individuals Code (EPIC), MCL 700.5215, but the guardian is under the jurisdiction of the family division of the circuit court, rather than the probate court. Guardians under this Act are called “Juvenile Guardians.” 3.903 (A)(13)
• MCR 3.921 (C) is amended to define the persons entitled to notice in juvenile guardianship proceedings.
• MCR 3.978 adds a provision to appoint a juvenile guardian at post-termination review hearings.
• MCR 3.979 was added to include provisions for governing the juvenile guardianship process.
• MCR 3.965 was amended to allow the Court to consider concurrent planning at the preliminary hearing.  MCR 3.975 was amended to allow for the consideration of concurrent planing at post-dispositional hearings while the child is in foster care.
• The hearing procedures at permanency planning hearings under MCR 3.976 was changed to provide that the court shall obtain the child’s views regaring the permanent plan.MCR 3.976(D)(3).
• The following provision was added to MCR 3.976(E):
  

  In the case of a child who will not be returned home, the court shall consider in-state and out-of-state placement options. In the case of a child placed out of state, the court shall determine whether the out-of-state placement continues to be appropriate and in the child’s best interests. The court shall ensure that the agency is providing appropriate services to assist a child who will transition from foster care to independent living.

• MCR 3.976(E)(3) was amended to provide that a court may order DHS to initiate a supplemental petition to termiante parental rights (eliminating the mandatory “must” language) under the following circumstances:
  

  Except as otherwise provided in this subsection, if the child has been in foster care under the responsibility of the state for 15 of the most recent 22 months, the court shall order the agency to initiate proceedings to terminate parental rights. If the court orders the agency to initiate proceedings to terminate parental rights, the order must specify the date, or the time within which the petition must be filed. In either case, the petition must be filed no later than 28 days after the date the permanency planning hearing is concluded. The court is not required to order the agency to initiate proceedings to terminate parental rights if one or more of the following apply:

  (a) The child is being cared for by relatives.

  (b) The case service plan documents a compelling reason for determining that filing a petition to terminate parental rights would not be in the best interests of the child. A compelling reason not to file a petition to terminate parental rights includes, but is not limited
  to, any of the following:

  (i) Adoption is not the appropriate permanency goal for the child.

  (ii) No grounds to file a petition to terminate parental rights exist.

  (iii) The child is an unaccompanied refugee minor as defined in 45 CFR 400.111.

  (iv) There are international legal obligations or compelling foreign policy reasons that preclude terminating parental rights.

  (c) The state has not provided the child’s family, during the period set in the case service plan, with the services the state considers necessary for the child’s safe return to his or her home, if reasonable efforts to reunify the family are required.

• MCR 3.977(D) was amended to provide that the court may suspend parenting time when a petition for termination of parental rights is filed. This eliminates the mandatory suspension under the old court rules. The new court rule does not provide any standard for the court to apply in determining whether to suspend parenting time, so this author can only conclude it is simply in the court’s discretion.
• Finally MCR 3.977 (E) and (F) were amended to comport with the amended MCL 712A.19b(5) to indicate that after the court finds a statutory basis to terminate parental rights, the court may terminate a parent’s parental rights upon a finding that “termination of parental rights is in the child’s best interests.”  Under the previous rule, the standard for the best interest finding was “clear and convincing evidence.”  The new court rule does not state any standard of proof required for the best interest findings.  Most courts will probably continue to apply the clear and convincing standard.

Click here to download the order:  Administrative order 2008-29

Get Updates by Email

You can now sign up to receive updates from this site by Email.  Just click on the icon “Subscribe via eMail” in the sidebar on the right, fill in the form and you are on your way to receiving an email each time this site is updated.  The email feed is provided by Feedburner by Google.

In re Pugh

In this recent Court of Appeals decision, the court reversed a trial court’s findings under MCL 712A.19b(3)(a)(ii), which states:

(3) The court may terminate a parent’s parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:

(a) The child has been deserted under any of the following circumstances:

***

(ii) The child’s parent has deserted the child for 91 or more days and has not sought custody of the child during that period.

In this case, Respondent Mother had no contact with anyone in the foster care agency and failed to participate in services from March 3, 2008, through mid-June 2008, while her children were placed in foster care. She also failed to visit the children after February 29, 2008.  Therefore, there was a period of just over 91 days when Respondent Mother made no efforts toward reunification and had no contact with the children.  However, the court held subsection (3)(a)(ii) requires more than just a finding that a respondent deserted the child for 91 or more days. It also requires a finding that the respondent failed to seek custody of the child during that 91-day period of desertion. In this case, Respondent’s attorney continued to represent her, and there was no indication that respondent intended to stop pursuing reunification.  The Court of Appeals concluded that the trial court clearly erred in basing termination of respondent’s parental rights based on § 19b(3)(a)(ii).  However, the court also found that such error was harmless because the trial court properly based termination of respondent’s parental rights to the children on other statutory grounds.

This case highlights the important role that attorneys for the respondents play at review hearings.  In this case, Respondent Mother disappeared for a period of time while the child was in foster care.  The attorney continued to appear and continued to argue on behalf of his or her client that she desired to reunify with the children.  This case indicates that the representation of the attorney in an effort to reunify can be attributed to the parent.

For a variety of reasons, a parent sometimes disappears while a child is in foster care as a court ward.  In this case, it appears Respondent Mother had serious issues with drug addiction, which may have accounted for her absence.  I have also seen cases in which the respondent’s absence is due to mental health issues.  This case illustrates why, in these circumstances, the respondent’s attorney should continue to assert his or her client’s desire to reunify with the child (if that is in fact the case) and continue to strongly advocate for the client at post-dispositional hearings.

Click here to view the case: In re Pugh

In re Rood

In a rare move, the Michigan Supreme Court has weighed in on a termination of parental rights case.  Even more surprising, they reversed the termination of a father’s parental rights.

In this case, Mother and Respondent Father were never married.  Their relationship ended about a year after the child (hereinafter, “A”) was born.  Following the break-up, Respondent Father  only had sporadic contact with the child.  In fact, Respondent Father’s last visit to Mother’s home resulted in a domestic violence charge against him.  After that, he no longer saw A because he was ordered not to have contact with Mother.

On March 21, 2006, DHS removed A from Mother’s home after confirming reports that she had not been caring for A and had left all three of her children with friends without making provisions for their care. Her whereabouts were unknown.  The CPS worker knew that Respondent Father was A’s father and was aware that he was in jail for the domestic violence against Mother on the day the DHS removed A.

Following his release from jail, Respondent Father notified the CPS worker of his release and his desire to have A placed with him.  When he was informed that the plan was to reunify A with Mother, Respondent Father indicated that he did not wish to set up visits as he did not want to subject the child to the turmoil between Mother and Respondent Father following reunification.  He testified that CPS did not notify him that DHS would create a case service plan for reunification.  At that time, Respondent Father notified her of his contact information.

An ISP was prepared for Mother, which outlined the steps required of Mother for reunification.  The ISP listed Respondent Father’s whereabouts as unknown.  Most of the notices for the hearings were erroneously sent to an incorrect address for Respondent Father.

Later, the situation with Mother deteriorated and the permanent plan changed to termination and a petition was filed seeking to terminate Mother and Respondent Father’s parental rights.  Shortly before the trial on the termination petition, Respondent Father notified DHS of his desire to be considered a placement for A. Notice was sent to the correct address and Respondent Father appeared for trial.  Mother did not participate in the proceedings.  Instead, she voluntarily relinquished her parental rights.

The trial court terminated Respondent Father’s parental rights pursuant to MCL 712A.19b(3)(g) and (j). The trial court  found “a failure to demonstrate proper motivation on behalf of [respondent] in making attempts to see his [child].”  The court added: “[T]here has to be a responsibility and a burden of a parent to step forward. And, it’s not the department’s responsibility to . . . search him out in the way that’s been suggested by counsel.”

The Supreme Court determined that service pursuant to the statute, court rules, and federal regulations “was sorely lacking” in this case, the court concluded “the state deprived respondent of even minimal procedural due process by failing to adequately notify him of proceedings affecting his parental rights and then terminating his rights on the basis of his lack of participation without attempting to remedy the failure of notice.”  DHS was aware of his status as the child’s  father, his correct address, his release from jail, and his interest in obtaining custody of A, yet it did not make reasonable efforts to inform him of the ongoing proceedings after learning most of its attempts at notice and contact had failed. In fact, despite being informed numerous times of his correct address, the Court continued to serve him at an incorrect address.  While Respondent Father had “bare notice” of the proceedings, and the DHS was pursuing reunification with the mother he did not receive sufficient information to meaningfully participate (or decline to participate) in the pre-termination proceedings. “The failures of notice deprived respondent of his right to procedural due process when the state then terminated his parental rights in part as a result of circumstances and missing information directly attributable to” his lack of meaningful prior participation. He was denied due process because the proceedings lacked “fundamental fairness,” which is required before parental rights can be terminated.

When the permanent plan changed from reunification with mother to termination of her parental rights, they did not look at placement with Respondent Father.  The Court also held the state failed to fulfill statutory mandates, which facilitate a parent’s fundamental right of access to his child, to place a child with his or her parent if possible. Specifically, the Court held this was a violation of the requirement under MCL 712A.13a(10) to place the child in the most family-like setting.

The lead opinion goes into a lengthy discussion of the funding provisions of Title IV-E.  It points out that Michigan statutes and court rules mirror the provisions of Title IV-E so Michigan may receive Federal funding for foster care wards. The Court held that the State violated Title IV-E by failing to plan for Respondent Father or look to him as a placement.  In perhaps the most controversial part of the Court’s decision, the majority held that a respondent may “claim procedural error in an action brought by the state to terminate this right if the state fails to comply with the required procedures and its failure may be said to have affected the outcome of the case.”

Justice Cavanagh concurred in the result reached by the lead opinion, concluding the trial court’s decision to terminate respondent’s parental rights should be reversed because the DHS and the trial court failed to make reasonable efforts to reunite him with A and in light of this failure, the trial court clearly erred in finding the DHS had shown the statutory grounds for termination were established. However, contrary to the lead opinion, the justice did not think it was necessary for the court to determine whether the state’s actions also violated respondent’s due process rights.

Justice Weaver agreed only with the result of the lead opinion, specifically the Court of Appeals correctly remanded the case to give respondent “a fair opportunity to participate.” The justice agreed with Justice Young because the case was resolved both procedurally and substantively on the basis of Michigan law, the lead opinion “unnecessarily attempts to resolve federal questions concerning Title IV-E of the Social Security Act.”

Justice Young also concurred in the lead opinion’s result, but on a narrow ground.  In light of the failed and inadequate attempts to provide respondent notice, the trial court clearly erred in using his failure to participate in the proceedings against the mother as grounds for terminating his parental rights. The justice found “insupportable” the lead opinion’s “attempt to create substantive rights in a parent from federal statutes that do nothing more than impose a duty on the state.” He also disagreed with its reliance on the current version of the CFF, and its consideration of the potential constitutional implications of the trial court’s and DHS’s statutory and court rule violations. Those violations, and the trial court’s use of its own violations as grounds for terminating respondent’s parental rights, were sufficient to require appellate relief.

This summary attempts to do justice to the 65 pages of opinions and concurring opinions.  I am not sure that it does, but the full text is below for your reading pleasure.

This is a case of bad facts making good law.  There is not too much positive one can say about this father.  He had only sporadic contact with his child after the break up with Mother and the last time he had contact with the child, he commits domestic violence against mother.  After the child is removed from Respondent Mother, he does not request to visit the child.  He is not the most sympathetic guy.

This case addresses issues of which most of us practicing in this area have long been aware.  First, we have unwed parents with and absentee father.  This is not Ozzie and Harriet.  There is some serious dysfunction here.  Nevertheless, the Supreme Court held that legal fathers, even the absent ones, have a right to participate in the reunification process.  Second, courts must dot the “i”s and cross the “t”s.  At a minimum, they must properly serve all parents.  Third, the Constitution is still alive and well.  One of the most fundamental rights we have is to raise our children in the way that we see fit.  Most parents are not perfect, but when does a lack of perfection justify termination of parental rights?  Many times, DHS and the courts are quick to move to adoption in an effort to provide children with a “better” life.   The rights of the natural parents are often cast aside in the rush to move toward permanance.  In Rood, the Supreme Court reminds us that the procedural notice and reunification requirements are more than just motions through which the court must go in order to clear the way for adoption.  Rather, they are vital to advance the important public policy goal of reuniting families.

Click here to download the case: In re Rood.

Link to case on Google Scholar.

In re McEwen

D was removed from respondents’ care based in large part on the father’s drug use, criminal history, and mental instability. Before D was even adjudicated a temporary ward, the father was arrested and convicted of drug possession/distribution and felony-firearm. He was sentenced to a prison term of 6 to 20 years.  It was clearly established, the father was imprisoned for such a period D would have been deprived of a normal home for a period exceeding two years, and the father failed to provide for her proper care and custody. Because of his incarceration, it was impossible for the father to participate in any meaningful services. He was unable to provide D with proper care and custody while in prison. In addition, given the father’s admitted extensive drug problems and history of criminal conduct, it was clear his lifestyle would have placed D at risk of harm if she were returned to his care.

What is interesting about this case is the termination of Respondent Mother’s parental rights.   The CoA found there was a lack of clear and convincing evidence in the record substantiating a statutory ground for termination. Respondent Mother’s rights were terminated pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j).

One of the reasons the initial petition seeking temporary custody of D was filed was because respondent mother had been repeatedly warned that Respondent Father should not be near D because of his instability. Additionally, protective services workers wanted Respondent Mother to keep D away from Respondent Father until he could be assessed, but she failed to do so. Workers were concerned about Respondent Mother’s emotional stability.

All of the PAA’s requirements were successfully completed, though in a tardy manner. Substance abuse was not an issue for Respondent Mother. As for housing, respondent mother was living with her fiancé, Thomas Schweniger, in a twobedroom townhouse in Harbor Beach, Michigan at the time of the termination trial. The home was childproofed and the second bedroom was equipped with a crib, toys, and a walk-in closet full of clothes for D. By all accounts, Schweniger was a stable and supportive individual and active in respondent mother’s endeavors to reunite with D. Housing, therefore, was no longer an issue. Respondent Mother also successfully completed parenting classes and numerous other job training and resource management classes. Respondent Mother’s emotional stability was what needed the most attention. Baker admitted that Respondent Mother had substantially complied with the PAA and that Respondent Mother appeared to have benefited from parenting classes and was more emotionally stable. A parent’s compliance with the PAA is evidence of her ability to provide proper care and custody for her child. In re JK, 468 Mich 202, 214; 661 NW2d 216 (2003).

The Court also found that the trial court relied too heavily on the bonding assessments of Dr. Wayne Simmons. The CoA believed that the assessment of Dr. Simmons was heavily influenced by the statements of the foster mother, who described difficulty with the child’s behavior after and before visits. A third bonding assessment was performed by Dr. Robert Plummer. Dr. Plummer was provided with the journals of the foster parents, but his assessment relied more heavily on his observations of Respondent Mother’s visits with the child. During the assessment, Dr. Plummer noted that Respondent Mother was attentive, interactive, and caring. Respondent Mother interceded at times to make sure that D would not get hurt. D did not appear to fear respondent mother, and she did not try to get away from Respondent Mother. Dr. Plummer noted, “I did not observe any evidence of any lack of attachment.” The CoA clearly felt Dr. Simmons was overly influenced by the foster parents. The CoA wrote:

The foster mother denied that thoughts of adoption played a role in her testimony and statements, but it is obvious that she formed a strong
attachment to Dakota. In making its decision, it appears as if the trial court performed a best interests analysis before determining whether there was a statutory ground for termination, and determined that Dakota would be better off with her foster family than with respondent mother. Such a factor could not be considered in the initial determination of whether respondent mother was neglectful. In re Mathers, 371 Mich 516, 530; 124 NW2d 878 (1963). As our Supreme
Court has stated:

“It is totally inappropriate to weigh the advantages of a foster home against the home of the natural and legal parents. Their fitness as parents and question of neglect of their children must be measured by statutory standards without reference to any particular alternative home which may be offered to the [child].”
[In Re JK, 468 Mich 202, 215 n 21; 661 NW2d 216 (2003), quoting Fritts v Krugh, 354 Mich 97, 115; 92 NW2d 604 (1958), overruled on other grounds, In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993).]

The CoA reversed and remanded the termination of Respondent Mother’s parental rights, but affirmed the termination of Respondent Father’s parental rights.

This case seemed to turn on two things 1) Respondent Mother’s substantial compliance with the parent-agency agreement and 2) the Trial Court’s reliance on Dr. Simmons’ testimony.  Clearly, the CoA was convinced that the foster parents were attempting to sabotage Respondent Mother.

Click here to view the opinion: In re McEwen