In Re Hall

In an order in lieu of granting leave to appeal, the Supreme Court reversed the Court of Appeals opinion and reinstated the May 15, 2008 order of the trial court terminating the respondent-mother’s parental rights to the minor children.  The Supreme Court ruled that the Court of Appeals misapplied the “clear error” standard by substituting its judgment for that of the trial court, and rendered a decision contrary to the clear and convincing evidence supporting termination of the respondent’s parental rights pursuant to §§ 19b(3)(b)(ii) and (j). The Court remanded the case to the trial court for further proceedings consistent with the Court’s order.

Click here to view or download the Supreme Court’s order: In re Hall (Supreme Court)

The Court of Appeals opinion was issued before this blog was started, so we do not have a previous article related to this case.  Here is a summary of the Court of Appeals opinion:

The child protective proceedings began after respondent mother reported to the police her husband, F, had sexually abused her oldest daughter B.  DHS filed a petition seeking termination of respondent mother’s parental rights to her three children and also sought to terminate the parental rights of the children’s fathers.  The allegations in the petition included, inter alia, respondent told the police that B told her three weeks earlier that F had “touched her privates,” respondent mother confronted him, he said he was sorry, and cried.  F left the home and a short time later returned and told respondent mother he would slow down on his drinking.  Respondent mother stayed in the home with the children until the time she went to the police after she discovered F very intoxicated and alone with B.  When confronted, F apparently admitted to also touching B two years earlier.  In January 2008, he pleaded guilty to CSC IV.

Both fathers voluntarily relinquished their parental rights.  The trial court terminated respondent mother’s parental rights after a trial pursuant to MCL 712A.19b(3)(b)(ii) [the parent who had the opportunity to prevent the physical or sexual abuse of a child failed to do so and a reasonable likelihood exists that the child will suffer injury or abuse in the foreseeable future if placed in the parent’s home], and (j) [given the parent’s conduct or capacity, the children likely would suffer harm if returned to the parent’s custody].  The trial court held respondent mother had the opportunity to prevent the sexual abuse of B, failed to do so, and the children would likely suffer injury or abuse if returned to her care. The CoA concluded the trial court clearly erred in finding clear and convincing evidence the children would likely suffer harm if returned to her care and entirely disregarded the testimony of the only witness who had first-hand information as to mother’s relationship with her children and her ability to parent them. The CoA noted the trial court expressed “strong opinions” in rejecting the witness’s testimony, had preconceived notions about the case, and ordered the case reassigned to a different judge.

In lieu of granting leave to appeal the Supreme Court issued an order reversing the Court of Appeals, noting only that the court substituted its own judgment for that of the trial court and rendered a decision contrary to evidence supporting termination.  The Court of Appeals offered a 16 page opinion detailing its findings.  The Supreme Court order does not explain exactly where the Court of Appeals substituted its own judgment and exactly what portions of its opinions are not suppored by the record below.  Thus, there is not much we can learn from this case.

Click here to view or download the Opinion: In re Hall (Court of Appeals)

Juvenile Guardianships

Juvenile Guardianships are coming to a court near you.  As I have reported here, in July 2008, legislation was enacted by the legislature and signed into law by the governor with immediate effect establishing juvenile guardianships as an alternative permanent plan in child protection proceedings.  I attended the SCAO-CWS & DHS Juvenile Guardianship Webcast today and found it quite informative.  I am posting the Power Point materials on this site below.

Here are some interesting bits of information I picked up that is not in the materials:

• Upon the appointment of a juvenile guardian, the L-GAL is released, but may be re-appointed by the Court.
• Upon the appointment of a juvenile guardian, the child protection proceeding is closed.
• The juvenile guardianship requires an annual review.  The court may appoint an L-GAL, court staff or anyone to investigate for the annual review.
• Upon a petition to terminate the guardianship, the court must appoint DHS to investigate.
• The court may place limits on the juvenile guardian’s powers in the letters of authority.
• A petition to terminate the guardianship may be filed by the juvenile guardian or  “other interested persons.”  The term “other interested persons” is undefined in the Court Rule MCR 3.979.  Courts may interpret parents, whose rights have not been terminated, as other interested persons entitled to file a petition to terminate the juvenile guardianship if the conditions that led the children into care have been corrected and that they are fit.
• If the juvenile guardian and the child live in another county, the case may be transferred to that county under the regular change of venue rule (MCR 3.926).  However, if the guardianship is revoked, the Court places the child with DHS and reinstates the previous NA case, which may be in the transferring county.  So, it goes back.  There is no guidance on what do do in this situation, but I would assume the transferring court would just change venue of the NA case to the court that handled the guardianship.

There was also a whole segment of the seminar that discussed providing funds to assist juvenile guardians.  There are mechanisms for Federal funds through Title IV-E and State funds.  With the current state of Michigan’s economy and the State’s budget, it is uncertain whether there will be any state funding for juvenile guardians.  In order to receive the Federal money, the juvenile guardian must be or become a licensed foster parent.  This will represent a significant barrier to many juvenile guardians receiving those Federal Funds.

I also understand that SCAO is still working on the forms for juvenile guardianships and should have them available to the courts soon.

All in all, it is important to note that these juvenile guardianships are an entirely new concept and the courts are going to have a great deal of difficulty initially with them.  They require new case codes, captions, forms and procedures.  I assume that if you are considering recommending a juvenile guardianship as a permanent plan in one of your cases, be ready to get more than a few quizzical looks from the Court and/or the clerks.  Juvenile guardianships share many of the characteristics of guardianships under EPIC, but they are in the circuit court.  The circuit court clerks are not accustomed these types of proceedings like the probate court.

Here are the Power Point materials from the presentation:

• Tobin Miller’s “EPIC Minor Guardianships & Juvenile Guardianships
• Kelly Howard’s “Juvenile Guardianship FAQ”
• Anita Peters’ “DHS Process”

Foster rules eased for relatives – now relatives won’t have to be licensed

DHS has eased the requirement that relatives become licensed foster care providers in order to have a child placed with them.   In October, a policy was implemented requiring foster home licensing for all family members who take custody of children who are relatives.  Apparently, this policy did not go over very well with relative caregivers.  Of the 1,521 relatives contacted before Dec. 19, only 53 percent said they were interested in becoming licensed, according to a letter recently written by Ismael Ahmed, director of Michigan’s human services department, to state legislators.

Apparently, family members who step in to care for children that have been removed from their parents due to abuse or neglect are a little wary of government oversight.  One can hardly blame them.  The requirements for licensing include foster parent training, fingerprinting of all adults in the home, and minimums on square footage of bedrooms in the house.

In a formal memorandum issued in March, Terry Salacina, DHS’ acting director of field operations, instructed county and local welfare directors to allow placement of children with relatives who refused licensing, as long as safety checks were completed, the child’s interest was met and relatives signed a waiver saying they were informed of their options but declined.

Licensing still has its privileges.  Licensed foster homes receive monthly foster care payments between $399 and $493 a month, plus allowances for clothing and holidays.

The Detroit News published a nice article on this story.  Click here to read the article.

Quick Fact:  Of the 20,142 children in out-of-home placements, 7118 are in relative placements.  That’s 35.3%.