Posted on April 16th, 2009 No comments
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.