ACLU Report: Reclaiming Michigan’s Throwaway Kids: Students Trapped in the School-to-Prison Pipeline

Last week, the American Civil Liberties Union (ACLU) of Michigan released a report entitled “Reclaiming Michigan’s Throwaway Kids: Students Trapped in the School-to-Prison Pipeline,” which argues that there is trend among school districts to enforce disciplinary policies and practices that expel students from schools without regard for the long-term impact.  The report defines the “the school-to-prison pipeline” as a statistical correlation between students who are expelled or suspended from school and the likelihood they will be incarcerated as adults.

The ACLU argues that race also plays a factor in the findings.  Mark P. Fancher, ACLU of Michigan Racial Justice Project staff attorney and principal author of the report, said “we found that black kids are consistently suspended in numbers that are considerably disproportionate to their representation in the various student populations.”

The study found that one significant contributor in Michigan’s school-to-prison pipeline is a lack of “due process.”  Suspension and expulsion policies and procedures to remove students from Michigan’s public schools vary from district to district.  The ACLU argues that a uniform policy should be adopted for all school districts to follow statewide.

The study also blames Michigan’s zero tolerance expulsion law as contributing to the school-to-prison pipeline.  Michigan law  requires the expulsion of students who possess a “dangerous weapon.”  In many instances, well behaved, unsuspecting students have faced serious consequences for carrying items that do not necessarily reflect this definition.

Information within the report was obtained through Freedom of Information Act requests to school districts across the state, interviews with students, parents, and educators; information obtained while providing advocacy work to students facing discipline; scholarly reports and studies; legal analyses; and information collected while providing aggrieved students with legal representation.

The ACLU recommends amending Michigan’s expulsion law to conform more strictly to the scope of federal requirements by making only firearm offenses subject to mandatory automatic expulsions. In addition, school administrators should explore alternatives to suspension and expulsion, including restorative practices to correct the problem rather than punish the deed. Other ACLU recommendations address alternative education and offer guidelines on when to involve the criminal justice system with disciplinary matters.

While I am sympathetic to the points made by the ACLU, I think they go too far.  While I understand the notion that students who present discipline problems are entitled to an education, I would also argue that all students have a right to an education.  This education should be free from distraction, harassment and violence caused by other students.  The ACLU’s recommendation that only firearm offenses should be subject to automatic expulsions is absurd.  Under the ACLU’s position, students in school should feel safe from gun violence, but expulsion for a good old fashioned knife fight (ala West Side Story) is going too far.  The simple truth is students who are disruptive and violent should be removed from the classroom to give an opportunity for the rest of the students to have a quality education.  We should not hinder the entire student body’s education because of a few bad apples.

Further, many of these students would be removed by the juvenile justice system and not because of any action by the school district.  I feel compelled to point out that the prosecutor has the authority to prosecute juvenile offenses.  Thus, the school district has very little to say about whether the criminal justice system becomes involved.

If you would like to download and view the report, click here: Reclaiming Michigan’s Throwaway Kids: Students Trapped in the School-to-Prison Pipeline

In re McBride – Supreme Court Denies Application for Leave

The Supreme Court by a 5-2 order denied appeal in the McBride case after canceling the application argument. The two issues in this case were 1) a violation of respondent-father’s right to counsel and 2) the violation of respondent-father’s right to participate by telephone pursuant to MCR 2.004 in the termination of parental rights proceedings.  The trial court violated the incarcerated father’s right to counsel and right to participate by telephone.  The AG and the Solicitor General confessed error for DHS by recommending reversal in their amicus brief,  but the Bay County Prosecutor did not agree.  The trial court also disregarded attempts by the father’s family to participate and get placement.  Justice Corrigan wrote a well-reasoned decent that was joined by Justice Kelly.

Respondent is the father of three sons who were 8, 10, and 13 years old when child protection proceedings began against their mother in September 2006.  The allegations related to mother’s abuse of one of the children.  She pled guilty to the allegations. Respondent has been incarcerated with the Department of Corrections (DOC) since 2004 on charges of CSC 1st Degree and CSC 2nd Degree (both of which involved a minor).

Although respondent-father had a right to communicate with the court by telephone in order to participate in the child protective proceedings, he was not informed of this right.  He received notices concerning the hearings, but the DHS and the court failed to comply with MCR 2.004 (B) and (C), which require the DHS to move the court to arrange for telephonic communication with a respondent parent through the DOC.

Respondent-father’s sister was at the hearings and offered to care for the children.  While the trial court found her to be appropriate, it denied her request on the basis that she lived over an hour away and the DHS foster placement would allow the children to remain in their school district.  The trial court also denied a request for visitation with the father in prison, despite his sister’s offer to provide transportation for those visits.

After a year in care, respondent-mother had not rectified the conditions that led to the children coming into care and petitioners filed to terminate respondent-mother and respondent-father’s parental rights.  At the termination hearing, for the first time the DHS and the court arranged for respondent-father to participate by telephone.  He immediately invoked his right to counsel, but the court denied his request.

On November 7, 2007, the court issued an opinion and order terminating both parents’ rights to their sons.  Respondent-mother and respondent separately appealed, and the Court of Appeals affirmed in a split, unpublished opinion.   Dissenting Judge Gleicher would have reversed the order terminating respondent’s parental rights.  She opined that the DHS’s and the court’s failures to comply with MCR 2.004 and the complete denial of counsel required reversal because respondent’s procedural and substantive due process rights were violated and, therefore, the court’s resulting order “lack[ed] any inherent integrity . . . .”

Justice Corrigan wrote that the trial court’s refusal to allow respondent-father to appear by telephone was a violation of MCR 2.004 and reversal was mandated by MCR 2.004(F).  She did not reach the due process issue because reversal was mandated by MCR 2.004(F).  She wrote that the failure to follow MCR 2.004 was not harmless error as he could have been appointed an attorney and argued throughout the proceedings.

She also opined that termination was not inevitable under MCL 712A.19b(3)(h).  That statute does not automatically authorize termination merely because a parent will be imprisoned for more than two years. Rather, the statute permits termination if the

parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child’s proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age. [MCL 712A.19b(3)(h) (emphasis added).]

She wrote that the statute’s use of the word “and” clearly permits a parent to provide for the child’s proper care and custody although he is in prison; he need not personally care for the children.  In this case, respondent-father could have argued and arranged for placement with his sister.

You can read and download the order here: In re McBride

Bikes for Foster Care Kids

I like reporting positive stories regarding children in foster care.  On Friday, June 26, 250 brand new Huffy bikes will be given away at an event for children in foster care family preservation programs with Orchards Children’s Services.

The event will be held at the organization’s headquarters in Southfield from noon to 3 p.m., and will be a part of an annual Olympics event with a carnival, bounce house and games.

The bikes were purchased with help of corporate sponsors Lifetime Fitness and Kroger, individual donations, and many other key players, said Pamela Ayres, director of resource and fund development for Orchards Children’s Services.

50 volunteers helped put the bikes together last weekend.  The staff of Orchards chose the children who will be receiving the bikes. Each child receiving a bicycle also will receive a helmet and bike lock, as well as children’s books donated by DK Publishing.

More on the Doctrine of Anticipatory Neglect

There has been much discussion on the Michigan Bar Association’s Children’s Law Listserv regarding the holding in In re Miteff that anticipatory neglect may not be the sole basis upon which termination may be sought.  Eric Scott, an assistant prosecuting attorney in Sanilac county wrote:

The Doctrine of Anticipatory Neglect/Abuse is codified in the termination statute, and is by statute a basis for termination of parental rights.  Look at the language of MCL 712A.19b(3)(i), (l), & (m).  All of those have to do with a prior termination.  In fact, when there is a prior termination, that can be, by statutue, the sole basis for termination of parental rights.  What that means is that if the court gets jurisdiction, either by plea or by adjudication, is that in those cases where there is a prior termination, termination as far as the grounds go is irrefutable and the only saving grace for a parent in those cases is the best interest determination, which Gazella says, in dictum, will be a very hard standard to meet on a very young child.  The termination itself in these types of cases is based solely on the prior case ending in termination….we anticipate the neglect because the parent was neglectful in the past and saw their rights terminated…therefore we can terminate now.  I know many of you out there don’t agree with the law, and I think there are aspects of the law which are very troubling, but this is the state of the law at this point.  It’ll be interesting to see how this new case might play out in terms of the statute.   

In Re Miteff – Anticipatory Neglect Doctrine

In re Miteff is an unpublished case from the Court of Appeals reversing the termination of a mother’s parental rights.

As a result of a DHS investigation and previous child protective proceeding pertaining to respondent-father’s alleged emotional and verbal abuse of his teenage daughter, on September 5, 2006, DHS removed the 23-month old child who is the subject of this appeal from the home of respondent-mother and respondent-father.  The only allegation involving respondent-mother was a speech defect of the young son of both  parties.  One attorney represented both parents and both pled to the allegations in the petition regarding the speech delay and that the child at issue was present when the emotional and verbal abuse occurred.

Both parents parents completed all evaluations and assigned classes.  Nevertheless, trial court directed petition to terminate after determining it was unsafe for the young child to return home.  The trial court terminated respondent-mother’s parental rights, despite her benefiting from services offered, for failing to separate from respondent-father, secure employment or divorce, and the trial court’s finding that respondent-mother could not protect the child because she failed to intervene in one instance of verbal and  emotional abuse by respondent-father of his teenage daughter.

Respondent-mother appealed and the Court of Appeals held that the trial court failed to provide respondent-mother with an opportunity to succeed and  terminated primarily on her association with the child’s father.  The CoA recognized that the issue in the case was separating the behavior and level of culpability of each respondent.  Courts must make an objective analysis of each parent’s ability to care for the child.

The CoA ruled that jurisdiction over the mother was obtained by her plea based on legal advice  despite the factual insufficiency of the allegations in the petition.  There were insufficient allegations regarding respondent-mother for the trial court to acquire jurisdiction.

With reference to the allegations pertaining to the minor child’s speech delay, the CoA held those concerns were resolved before trial initiated termination proceedings.  Respondent-mother acknowledged her deficiencies and participated in all parenting classes required by DHS, which all witnesses agreed resulted in a benefit and affirmative development of her parenting skills.   Notably, compliance with a parent-agency agreement serves as evidence of a parent’s ability to provide appropriate care. In re JK, 468 Mich 202, 214; 661 NW2d 216 (2003).

The initial petition also raised the issue of danger from guns in the home.  However, there was no evidence presented that respondent-mother mishandled guns.

Respondent-mother lost her parental rights through guilt by association with respondent-father and the trial court placed mother in Catch 22.  It merely assumed that because of her failure to intervene in an argument  between her husband and his teenage daughter, she was incapable of  protecting her son.  Petitioner’s burden of proof was shifted to respondent-mother to prove she could defend her son from a speculative harm posed by another person (specifically, father).  The trial court misapplied anticipatory neglect.  The CoA remarked that the doctrine may be an appropriate basis of invoking jurisdiction, but can never be  the sole basis of terminating parental rights without a concurrent demonstration of parental unfitness.  Specifically, the Court wrote, “The speculative nature of this doctrine was not intended to serve as the sole basis for the termination of an individual’s  parental rights without a concurrent demonstration of parental unfitness.” A family court’s finding that there is no reasonable expectation that the  parent will be able to provide proper care and custody for a child in the future must rest on more than mere conjecture.

There has been much talk on the Children’s law listserv today regarding whether a request should be made that this case be published.  I would support such a request.

There was also some speculation regarding whether this case conflicts with In re Gazella and In re Dittrick, which allow the removal of a child based on anticipatory abuse and anticipatpatory neglect respectively.  I would submit that this matter in no way conflicts with those two decisions.  This case does not address removal per se, rather it addresses whether anticipatory neglect may be sufficient by itself as a basis to terminate parental rights.

For those of you unfamiliar with the term “anticipatory neglect,” here is a little summary of the doctrine.  The doctrine of anticipatory neglect permits an assumption that “[h]ow a parent treats one child is certainly probative of how that parent may treat other children.”  In re LaFlure, 48 Mich App 377, 392; 210 NW2d 482 (1973).  See also In re Dittrick, 80 Mich App 219, 222; 263 NW2d 37 (1978). Importantly, while this concept is probative, it is not dispositive.  In other words, you may use this as evidence that a child may be at risk of harm from a parent.

You can download and read the opinion here: In re Miteff

Mother who placed child in oven not guilty by reason of insanity

In January a mother of five children called the police to ask them to come and get her. In the call to 911 she said she was harming her children.

Reyna Valentino from Hamtramck Michigan has been found not guilty by reason of insanity of the abuse of two of her five children.

When the father went to pick up two boys from school Valentino took a heated nail or screw driver and burned the 4-year-old girl’s lower eyelid. She then put the little girl in the oven that had been turned on. Her back had sear lines on it from the rack. A five year-old said she had been hit with a crowbar.

The mother was facing charges of torture and child abuse.

According to Defense attorney Raymond Cassar the 40-year-old mother, Reyna Valentino, was found not guilty as part of an agreement with Wayne County prosecutors.

She will likely be treated in the Center for Forensic Psychiatry indefinitely.

According to Cassar Valentino has paranoid schizophrenia but stopped taking her medication because she couldn’t afford it. “She has had an over 12-year history of significant mental illness, which included numerous psychiatric hospital hospitalizations,” Wayne County Assistant Prosecutor Maria Miller said. Home alone with the girl, Valentino went to a neighbor’s home and asked her to call police after the incident.

There is a companion child protective proceeding in Wayne County in which both parents are respondents. The children are now in foster care.  Valentino’s husband, Randy Valentino, also lost custody of all three children for failing to protect them in light of their mother’s mental illness.  Permanent placement proceedings are pending for the three children.

In Re KCS – Adoption – MCL 710.37(1)(a)

The following case summary is from an unpublished opinion from the Court of Appeals issued June 2, 2009.

This matter was before the court on birth father’s appeal as of right from an order that terminated his parental rights to the minor child pursuant to MCL 710.37(1)(a) of the Adoption Code, which states:

(1) If the court has proof that the person whom it determines pursuant to section 36 to be the father of the child was timely served with a notice of intent to release or consent pursuant to section 34(1) or was served with or waived the notice of hearing required by section 36(3), the court may permanently terminate the rights of the putative father under any of the following circumstances:

(a) The putative father submits a verified affirmation of his paternity and a denial of his interest in custody of the child.

The birth mother, together with the adoptive parents, petitioned to identify the birth father and terminate his parental rights.  They submitted a SCAO form in which birth father expressly disclaimed any interest in the child. The file also contained a “Family Medical History Form” in which birth father stated that “[t]he decision to allow an adoption was relatively easy because I know that me and the mother would not have been able to give the child any kind of life and also I would never have been able to support the child fairly,” as well as paperwork from the Michigan Central Adoption Registry, in which the birth father indicated that he did not give consent to have his name or address released to the child.

Although the trial court mistakenly stated that notice of the petition had been served on birth father, it had not been, and he did not appear.  At the hearing, birth mother and a social worker from Catholic Social Services testified regarding the circumstances under which the SCAO form was executed and that birth father had read it.   Based on the file documents and this testimony, the trial court granted the petition and terminated the birth father’s parental rights.

The birth father filed a timely petition for rehearing pursuant to MCL 710.64(1) and MCR 3.806(B).  The birth father filed the petition himself and indicated that “[a]fter much soul searching I cannot live with giving my child up for adoption.” Vincent’s petition explained that, at the time he made his “foolish decision” to give up his parental rights, “I had not talked with my family about the matter” and that, “after informing my family of the situation we have come to the conclusion that we will be able to take care of” the child.

MCL 710.64(1) provides that upon the filing of a petition in court within 21 days after entry of any order under this chapter, and after due notice to all interested parties, the judge may grant a rehearing and may modify or set aside the order.  Rehearings under MCL 710.64(1) are governed by MCR 3.806, which states:

(A) Filing, Notice and Response. A party may seek rehearing under MCL 710.64(1) by timely filing a petition stating the basis for rehearing. Immediately upon filing the petition, the petitioner must give all interested parties notice of its filing in accordance with MCR 5.105. Any interested party may file a response within 7 days of the date of service of notice on the interested party.

(B) Procedure for Determining Whether to Grant a Rehearing. The court must base a decision on whether to grant a rehearing on the record, the pleading filed, or a hearing on the petition. The court may grant a rehearing only for good cause. The reasons for its decision must be in writing or stated on the record.

(C) Procedure if Rehearing Granted. If the court grants a rehearing, the court may, after notice, take new evidence on the record. It may affirm, modify, or vacate its prior decision in whole or in part. The court must state the reasons for its action in writing or on the record.

(D) Stay. Pending a ruling on the petition for rehearing, the court may stay any order, or enter another order in the best interest of the minor.

After he filed this petition, the birth father retained counsel and filed a brief in which he claimed that he was coerced into disclaiming his rights to the child by the birth mother under the threat that she would tell his Catholic family.  He claimed he had extreme reading comprehension difficulties despite being a student at the University of Michigan, where he attends under an athletic scholarship.  He claimed the SCAO form he signed was blank when he signed it.  Finally, he claimed he believed it would be an “open adoption” in which hw would be able to see the child.  The birth father argued that the above factors rendered the child custody statement invalid.  The trial court denied the petition for rehearing, concluding that the birth father had merely expressed a change of heart.

Under MCR 3.806(B), the trial court was only authorized to grant a rehearing upon good cause.  The Court of Appeals affirmed the trial court’s finding that the birth father had waived his right to notice of the proceedings by executing the Notice to Father and Custody Statement.  Thus, the fact that the birth father was not given notice of the hearing was not good cause.

The Court also held that the trial court did not abuse its discretion in concluding that Vincent had a change of heart and this was the real reason for requesting a rehearing.  A change of heart is not a sufficient grounds to warrant a rehearing. In re Koroly, 145 Mich App 79, 87; 377 NW2d 346 (1985).

Finally, the birth father made an equal protection argument because he was treated differently than the birth mother.  The Court points out that this argument was previously rejected in In re RFF, 242 Mich App 188, 210; 617 NW2d 745 (2000):

In short, mothers and fathers of children born out of wedlock are not similarly situated. There are several differences between mother and fathers of out of wedlock children, including the identity of the mother of the child born out of wedlock is rarely in question and that “only a father can by voluntary unilateral action make an illegitimate child legitimate.” Moreover, the mother of a child born out of wedlock has made the decision to give birth to the child rather than have an abortion and, as a result of that decision, has carried the child in her womb for nine months. Accordingly, the gender-based classification created by [section] 39 is substantially related to the achievement of the Adoption Code’s legitimate objective. Appellant’s equal protection claim is without merit. [Citations omitted.]

The Court of Appeals concluded with a nice summary of the case:

In sum, the record here demonstrates that [the birth father] and his family ultimately concluded that he should father the child. We have no reason to doubt that, as he claimed in his petition for rehearing, [the birth father] would be a good father. Nonetheless, while we sympathize with his situation, we cannot overlook the concerns and interests of the birth mother, the adoptive parents and, of course, the child. The statutory scheme that we apply here was established to fairly accommodate the interests of all involved interested parties, in a process that is orderly and predictable. That process cannot be undermined simply because, as the trial court correctly determined was the case here, one of the parents has a change of heart regarding a decision to terminate parental rights.

It was fairly obvious to the Court of Appeals, and it should be obvious to anyone reading this opinion, that the birth father told his Catholic parents about this child and the adoption and they freaked out.  He filed a petition and was honest in that pleading.  It was not until an attorney was retained that his story changed and he was somehow duped into signing the custody statement.  A word to any lay persons out there, hire the attorney before you file anything, sign anything or say anything in open court.  The attorney was left with a poor case because the client’s statements were all the courts needed to hear.

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

Oakland County Prosecutor Backs out of the Drug Treatment Court

In a letter to judges this week, newly elected Oakland County Prosecutor Jessica Cooper announced her office will stop participating in the county’s sobriety courts by September 30, 2009.  Treatment courts, also called drug courts or sobriety courts, provide an alternative to jail for nonviolent offenders who have committed alcohol- or drug-related crimes such as drunken driving or minor in possession.

State law requires the participation of a prosecutor, and some funding sources also require prosecutor participation. It is unclear whether the programs will be able to continue without the prosecutor’s office.

Oakland County Circuit Court’s Family-Focused Juvenile Drug Court and Adult Treatment Court started in 2001.  Cooper cites budget concerns as a basis for backing out of the program.  The courts cost more than $730,000 annually.

The Oakland Press wrote a pretty scathing article about Cooper’s decision.  You can read it here.  I think the Oakland Press is going a bit hard on Ms. Cooper (full disclosure:  I did serve on an Inns of Court team with Jessica Cooper when she was a Judge in the Court of Appeals), but I think it would be a shame to lose the drug treatment court.

There may still be hope for the program.  This could just be budget posturing by the prosecutor for an increase in her budget.  It is budget season after all.  Having been in the middle of it during the last budget, I know how brutal it can be.

Michigan radio’s article can be found here.

Pros & Cons: Juvenile Lifer Law

Yesterday’s Detroit Free Press featured two opinion columns regarding Michigan’s juvenile lifer law.  State Senator Liz Brater(D-Ann Arbor) has introduced a package of bills in the Michigan Senate (a similar, pared-down package has received hearings in the House) that would prohibit sentencing a juvenile to life without parole and allow those juveniles who were already sentenced to life in prison without parole to go before the Parole Board to have their case reviewed after 10 years.  She writes a very well researched opinion piece for the Free Press in support of her bills.

She takes the position that when dealing with juvenile delinquents, courts should focus on rehabilitating minors. She writes, “According to National Institute of Mental Health studies, the brain of an adolescent continues to develop through age 25. The area governing reasoning, advanced thought and impulse control matures last, often causing youths to make decisions based on impulse and emotion, rather than logic. The acknowledgement of this difference in maturity, understanding and logic is what led us to have a juvenile justice system to begin with.”

She argues that elected prosecutors, who typically run on “tough on crime” platforms, are not in the best position to determine whether a child should be charged as an adult or as a minor because of the political considerations involved.  She believes that this determination should be in the hands of the judge, a different elected official.  There is some appeal to this argument.  I have never seen a prosecutor use the words “soft” or “compassionate” in their campaign literature.  However, they are elected (just like judges) by a constituency.  Being tough on juvenile offenders may not be a reflection on the personal motivations of the prosecutor, but rather the will of the people.

Finally, Senator Brater argues that rehabilitation of minor offenders would be less costly than incarceration.  The “saving taxpayer dollars” argument is rare for a Democrat.  However, it is not entirely surprising.  Democrats will raise the cost-savings banner when talking about releasing prisoners, cutting military spending or in opposition to the death penalty; but that is about it.

Wayne County Prosecutor Kym Worthy presents the counter-point argument.  She argues that the ability to sentence juveniles to life in prison is necessary to protect society and for the victims of these violent criminals.  She also argues that parole boards are inappropriate to determine whether a juvenile offender should be released because they are unelected and therefore unaccountable to the people.  Kym Worthy’s argument is not surprising.  What is surprising is that it lacks the research of Sen. Brater’s piece.

All in all, I think the purpose of juvenile delinquency is to rehabilitate a minor.  The statute even says so.  Minors are not fully culpable for their actions.  They are still growing, developing and learning.  Kym Worthy is right: incarceration is about protecting the public from dangerous individuals.  However, the public does not need protection from a juvenile offender who is rehabilitated into a fully productive citizen.  Further, incarcerating minors along side seriously dangerous adult offenders will corrupt them into further criminal behavior.  If we incarcerate minors, we will be simply creating a better class of criminal.

Make no mistake, I have represented hundreds of juvenile delinquents and consider some of them more dangerous than many adult offenders.  However, I have to believe that children that are still maturing and developing reasoning, impuse control and decision-making ability should be rehabilitated, rather simply removed from society.

You can read Sen. Brater’s article here.

You can read Kym Worthy’s article here.

Sen. Brater’s bills are  SB 173, SB 174, SB 175 and SB 176.  You can view the bills and their status by clicking on the links.

I should also point out that there is a bill in the U.S. House of Representatives (HR 2289 – Juvenile Justice Accountability and Improvement Act of 2009), which would require states to grant parole hearings for juvenile offenders who are serving a life sentence during their first 15 years of incarceration and every three years thereafter. Any state that did not comply would be denied some federal anti-crime funding.  That bill is currently in hearings in committee.

Brooks v. Starr Commonwealth, et al.

This case deals with the liability of a private juvenile delinquent placement.  The basic facts are as follows: A juvenile delinquent was placed in Starr Commonwealth by Bridgeway Services.  The juvenile escaped and Starr did not notify law enforcement for 100 minutes although bed checks were done every 15 minutes.  MCL 803.306a requires a facility in which a juvenile delinquent is placed to immediately notify law enforcement.

Upon his escape, the juvenile stole a vehicle and caused an accidental death. The estate of the decedent initiated a wrongful death action against Starr and Bridgeway,  Trial court granted Starr’s motion for summary judgment, dismissing the case.  COA reversed and held it was a jury issue whether Starr’s late notification made Starr liable.

Plaintiff brought a common law negligence action against Starr and Bridgeway based on the Restatement of Torts, 2d, § 319. Under a common law tort action, the plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Henry v Dow Chem Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005). [Remember duty, breach, causation and damages from law school?] The Court of Appeals held that the common law tort action was properly dismissed in light of the fact that there is no general duty to prevent the criminal acts of third parties. Brown v Brown, 478 Mich 545, 553-554; 739 NW2d 313 (2007).

Plaintiff also brought a statutory negligence claim based a violation of MCL 803.306a, that provides:

(1) If a public ward described in subjection (2) escapes from a facility or residence in which he or she has been placed, other than his or her own home or the home of his or her parent or guardian, the individual at that facility or residence responsible for maintaining custody of the public ward at the time of the escape shall immediately notify 1 of the following of the escape or cause 1 of the following to be immediately notified of the escape:

(a) If the escape occurs in a city, village, or township that has a police department, that police department.

(b) If subdivision (a) does not apply, 1 of the following:

(i) The sheriff department of the county in which the escape occurs.

(ii) The department of state police post having jurisdiction over the area in which the escape occurs.

***

(3) A police agency that receives notification of an escape under subsection (1) shall enter that notification into the law enforcement information network without undue delay.

(4) As used in this section, “escape” means to leave without lawful authority or to fail to return to custody when required.

The use of a statutory violation to establish negligence is a matter of judicial discretion, and evidence of a violation of a penal statute creates a rebuttable presumption of negligence.  Klanseck v Anderson Sales & Service, Inc, 426 Mich 78, 86-87; 393 NW2d 356 (1986). The same rules apply when a party is alleged to have violated a safety statute. Id. That is, the trial court must examine the statute to determine if it was intended to protect against the result of the violation, if the plaintiff was within the class intended to be protected, and if the evidence would support a finding that the violation was a proximate contributing cause of the event. Id. at 87.

The mere fact that a defendant’s conduct may have violated a statute does not demonstrate that a plaintiff owed a duty of care. Cipri v Bellingham Frozen Foods, Inc, 235 Mich App 1, 16; 596 NW2d 620 (1999).  Rather, once a duty is found, the violation of the statute may demonstrate prima facie evidence of negligence. Thus, the plaintiff’s use of a statute to impose a duty of care upon the defendant is contingent upon the statute’s purpose and the class of persons it was designed to protect. Id.

Once evidence of a statutory violation is presented, this presumption of negligence may be rebutted by evidence of a legally sufficient excuse for the statutory violation. Klanseck, supra at 86. In the absence of evidence to support such an excuse, the jury may infer negligence on the basis of the violation. Id. “It is then for the jury to determine whether violation of the statute was a proximate cause.” Id.

The Court of Appeals found that the juvenile had a history of repeated escapes from the Starr facility and a history of assaultive behavior.  Prior to his adjudication, he was involved in gang activity.  Despite this history, Starr housed the juvenile in an unlocked cottage.  Starr violated the statute’s requirement that they immediately report an escape to law enforcement by not reporting the escape for 100 minutes, despite 15 minute bed checks.   The immediacy requirement was designed to prevent harm to the public from an escaped juvenile and plaintiff was within the class of people the statute was enacted to protect.  Thus, there existed a rebuttable presumption of negligence on the part of Starr, which should have been heard by the jury.

Bridgeway has a contract with Wayne County for the “clinical treatment and risk management” of adjudicated juveniles under the county’s supervision. Starr and Bridgeway have a contract under which Starr agrees to accept offenders assigned by Bridgeway for participation in its program, which is a program in compliance with the Bridgeway-Wayne County contract.  Bridgeway sought indemnification from Starr, based on an indemnification provision in the contract between Starr and Bridgeway.  Plaintiff alleged that Bridgeway owed a duty separate from Starr and breached that duty.  The Court of Appeals held that plaintiff’s claims involved active negligence and were independent from those alleged against Starr and that the indemnification provision did not cover acts of Bridgeway’s own negligence.  Bridgeway was required to defend against these claims regardless of Starr’s liability.

Ultimately, a case like this is going to increase the costs of housing juvenile defenders because it has increased the liability and costs to the placement and treatment providers.

Click here to view or download the file: Brooks v. Starr Commonwealth, et al.