Posted on June 26th, 2009 No comments
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