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In re Miteff is an unpublished case from the Court of Appeals reversing the termination of a mother’s parental rights.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