Posted on July 29th, 2009 No comments
The annual Kids Count survey was released on Tuesday and it should come as no surprise that the state of Michigan’s economy is negatively impacting Michigan’s children. Michigan ranked 27th among the states the 2009 report on child well-being. Rapidly rising poverty and unemployment were the most troubling trends in the report, but the state performed well in reducing the rates of teen deaths and high school dropouts.
The state-by-state report by the Annie E. Casey Foundation looks at 10 indicators of child well-being and ranks the states, with No. 1 the best. Michigan’s overall rank of 27 puts it behind a majority of other states.
Michigan’s worst ranking (41) was for the percent of children living in families where no parent has full-time, year-round employment. In Michigan in 2007, 36 percent of children lived in those families, compared with 33 percent nationally.
The state ranked No. 34 for the percent of children living in poverty (income below about $21,000 for two adults and two children in 2007). Nearly one out of every five of Michigan’s 2.4 million children lived in poverty in 2007. That rate has jumped by 36 percent since 2000.
Other highlights from Kids Count survey:
- A 4% drop in the child death rate from 22% in 2000 to 18% in 2006.
- No change in the percentage of children living in single-parent families.
- a 14% improvement among the teen death rate and a 50% improvement in the percent of teens, ages 16-19, who are dropouts.
You can view the full report here: 2009 Kids Count Survey
Posted on July 28th, 2009 1 comment
Last week, the Court of Appeals (CoA) issued a published opinion in a child protection matter. The case is the first to address the best interest scheme after MCL 712A.19b(5) was amended on July 11, 2008.
The facts of the case are pretty simple. Respondent Father was incarcerated at the time the child came into care. At the time the supplemental petition for termination of parental rights was filed, he still had 12 years remaining on his minimum sentence. The trial court terminated parental rights under MCL 712A.19b(3)(c)(i) because the conditions leading to the adjudication continued to exist and there was no reasonable likelihood they would be rectified within a reasonable time and under MCL 712A.19b(3)(h) because the child will be deprived of a normal home with him for a period far exceeding 2 years, where his earliest release date is not until 2021, when she will be at least 13 years old.
The CoA did not find that the trial court erred with respect to the statutory basis. However, the CoA found the trial court erred in not making an affirmative best interest finding. Before MCL 712A.19b(5) was amended, a trial court was not required to make specific findings on the question of best interests under In re Gazella, 264 Mich App 668, 677; 692 NW2d 708 (2005).
With the amendment to MCL 712A.19b(5), it appears Gazella is no longer good law. As amended, termination of parental rights may only occur if the court finds a statutory ground for termination and that the termination of parental rights is in the child’s best interest. If the court so finds, termination is mandatory and not permissive (“the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.” MCL 712A.19b(5)). Thus, the trial court must make specific best interests findings following a finding that a statutory basis for termination of parental rights exists. The CoA found that while the trial court erred in appying the wrong best interests tests, the error was harmless because ample evidence existed on the record to support a finding that termination of parental rights was in the best interests of the child.
There is nothing too groundbreaking about this case, but it is the first to interpret the amended MCL 712A.19b(5). It is a fairly straightforward interpretation of the statute. I assume In re Trejo is also no longer good law. Now, if only the appeals courts would give us a definition for best interests. But I dream.
You can view or download the case here: In re Hansen
Posted on July 25th, 2009 No comments
At the request of the Michigan DHS, the Center for the Study of Social Policy, designed and implemented a qualitative Race Equity Review to examine the research question: “How does it come about that, after substantiation of child abuse or neglect, African American children are more likely to be removed from their homes?” NPR summarized the study’s findings this way:
Roughly half a million children throughout the U.S. are in foster care. But a recent findings by the Center for the Study of Social Policy shows that African-American youngsters are more likely to be steered into foster care at disproportionate rates than whites, and are often “negatively characterized and labeled” by child welfare workers.
Kristen Weber, co-author of the recent study; Bernadette Blount, of the Child Welfare Organizing Project in New York, and psychologist Toni Heinemen, creator and executive director of A Home Within, discuss how a child’s race can influence his or her chance at finding a loving home.
National data show that African American children and families are disproportionately represented in almost all child protective systems in the United States. Once involved with these systems, African American children are more likely to be removed from their homes, spend longer periods of time in out-of-home care, and often times their families have less access to relevant and helpful social services. According to the report, Michigan fares pretty poorly. For the Michigan study, reviewers spent spent spring and fall of 2007 in Saginaw and Wayne Counties observing. The findings of the report are not surprising for anyone who has practiced in this area and the recommendations are pretty weak. Basically, the report finds that DHS is in need of some racial sensitivity training. There is nothing remarkable about this report, but I figured it is worth reporting.
You can download or view a copy of the report here: A Home Within
Posted on July 24th, 2009 No comments
This case was posted to the Children’s Law Listserv by Jody Latuszek, an active contributor to that listserv. Had she not posted it, I would have missed this case because it is outside of my radar. I would like to thank her for bringing this to the attention of the Children’s Law Section members of the Michigan State Bar.
This case addresses the civil liability of mandatory reporters. The facts are as follows: a doctor failed to report suspected child abuse where the child, who had a history of abuse, exhibited bruising during examination. Essentially, the doctor didn’t report because the explanation of the foster mother seemed sincere and she seemed genuinely concerned. A short time later, the child is murdered in foster care after 11 blows to the head from foster dad. The PR of the child’s estate sues the doctor and hospital under vicarious liability. Plaintiff sued the doctor under ordinary negligence for failure to follow the mandatory reporting statute. The trial court grants summary disposition in favor of defendants arguing that Plaintiff should have brought a malpractice claim.
The CoA ruled that the doctor is liable as a mandatory reporter under the statute (MCL 722.623 and 722.633) and a claim can be brought under ordinary negligence. Identifying suspected child abuse does not require expert medical knowledge as the statute specifically identifies non-medical mandatory reporters. Additionally, imposing civil liability on doctors is consistent with purpose of the child welfare law as it encourages medical professionals to be vigilant and take an active role in reporting suspected abuse. CoA also held that the hospital could be vicariously liable because the common-law doctrine of vicarious liability is not abrogated simply because the statute imposes liability on the non-reporter. The Court noted, “such a doctrine cannot be abolished by implication.”
The dissent, written by Judge O’Connell, takes issue with subjecting the doctors to a common law negligence claim. The concern is that this “strips doctors of the protections inherent in a medical-malpractice cause of action, which would hold a doctor to the standard of care in his profession when determining whether a “reasonable cause to suspect abuse” exists.” Judge O’Connell is concerned this places an undue burden on physicians.
In her post, Ms. Latuszek predicts that this is not the last we will hear from the appeals courts on this issue. I must agree with her.
Posted on July 23rd, 2009 No comments
Apparently, even the “happiest place on earth” is not immune from child neglect. Yesterday’s Detroit Free Press reported this story:
Couple facing child neglect charges
A Holly couple was arrested Friday, accused of child neglect in Florida after police say they left two young foster children in a hotel room while they went to the pool.
According to the Orange County Sheriff’s Office, Kimberly and Stephen Simmons left the children, ages 2 and 4, unattended at Disney’s Caribbean Beach Resort for more than two hours. They returned after being asked to do so by resort staff. A housekeeper found the children uninjured. Kimberly Simmons, a school counselor in Michigan, told police she had taken a six-year old nephew swimming and was “aware the two children were alone in her hotel room.” The couple didn’t seem to be concerned about leaving the children alone and said they had done it before.
Carrie Hoeppner, spokeswoman for Florida’s Department of Children and Families, said protective services officials from Michigan picked up the children Monday.
Kimberly Simmons, 41, and Stephen Simmons, 49, each posted $2,000 bond and were released from jail, said Allen Moore, a spokesman for the Orange County Corrections Department. The couple has not yet been arraigned on charges.
Posted on July 16th, 2009 No comments
The Michigan Supreme Court (MSC) issued an opinion this week regarding the Indian Child Welfare Act (ICWA). The specific issue involved was whether 25 USC 1912(d) of ICWA requires DHS to provide current active efforts in the form of remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proved unsuccessful. The MSC held that ICWA requires DHS to undertake a thorough, contemporaneous assessment of the services provided to the parent in the past and if it does not appear that the provision of additional services is likely to prevent the need for termination, they may proceed to seek a termination of parental rights.
Respondent Mother and her son JL were both members of the Sault Ste. Marie Tribe of Chippewa Indians. She had four other children, who whom her parental rights had been previously terminated.
JL was born in 1999 when Respondent Mother was 16 years old and living in foster care. CPS began working with Respondent Mother in 1998, before she had children. JL was first removed from Respondent Mother’s care in September 2000. In March 2002, the Sault Ste. Marie Tribe of Chippewa Indians Tribal Court assumed jurisdiction over the case. JL was released from that Court’s jurisdiction in August 2002, when he was placed in a limited guardianship. The children were removed again from Respondent Mother’s care in 2004 as wards of the tribal court. Respondent Mother’s case was closed again in 2005, the worker had provided all the services she could offer “without staying there 24/7.” The worker was of the opinion that Respondent Mother had not made significant improvement.
In July 2007, the DHS petitioned to terminate Respondent Mother’s parental rights to JL on the basis of her “childrens protective service history, beginning on September 12, 2000, and specifically cited the termination of her parental rights to her other four children. At trial, her previous caseworkers described the extensive services they and their agencies provided to Respondent Mother from 1999 to 2005. They testified that despite these services, she failed to become an adequate parent. Testifying as an Indian expert under 25 USC 1912(f), one of her tribal caseworkers stated that she was satisfied that active and reasonable efforts had been provided to prevent the termination of parental rights and that Respondent Mother’s custody of JL would result in serious emotional or physical damage to him. The Trial Court found that DHS had established grounds for termination of parental rights under MCL 712A.19b(3)(i), due to the previous terminations in the tribal court. The trial court also found beyond a reasonable doubt that her continued custody of the minor was likely to result in serious emotional or physical damage to the child under 25 USC 1912(f) and MCR 3.980(D) and terminated her parental rights.
Respondent Mother appealed and the Court of Appeals affirmed. Judge Gleicher dissented indicating that Congress’ use of the term “active efforts” in 25 USC 1912(d) required that DHS provide current rehabilitative efforts designed to reunite the Indian parent and child. Respondent Mother asked the MSC to adopt Judge Gleisher’s dissent and the Court agreed to take up the matter.
25 USC 1912(d) reads as follows:(d) Remedial services and rehabilitative programs; preventive measuresAny party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.The majority opinion (Corrigan, Young, Markman, Hathaway) held that current efforts are not necessary if past efforts have been unsuccessful and it would be futile to provide additional services. The majority found that further efforts would have been futile in this case and affirmed the trial court and the Court of Appeals. Justice Weaver concurred in the opinion. Justices Cavanagh and Kelly dissented. They agreed with the majority’s interpretation of 25 USC 1912(d), but disagreed with the majority’s application. They state that in order to meet this standard, the party seeking termination must present evidence of the parent’s current circumstances and ability to parent the child that is the subject of the proceeding and the court must assess the relevance of the past efforts to the family’s current circumstances and needs. They found this was absent in this case. They also found that the evidence was insufficient to meet the beyond a reasonable doubt standard that her continued custody of the minor was likely to result in serious emotional or physical damage to the child.There are other minor aspects of this opinion that I have not addressed here, but I think I hit the important ones. I recommend that everyone read this opinion because it provides a good overview of some of the requirements of ICWA. There are also some good links to online resources on ICWA in the footnotes, which I will be adding to this site on the links page.I think this is another one of those cases where the facts may have contributed to the outcome. Mother had been provided services over a span of over 7 years prior to termination. With that many services, it was unlikely that any additional services would have rectified the issues involved. Frankly, this child lingered in the system too long and remand would have only prolonged it.
You can read and download the opinion here: In re JL
Posted on July 11th, 2009 No comments
The Wayne County Circuit Court has cut its contract with the Legal Aid and Defender Association of Detroit (LADA), the association that provides legal representation to indigent children in juvenile court proceedings. The association has represented juveniles in Wayne County for over 30 years. The contract was worth $2.4 million. The court had demanded a 20% reduction in the contract and the addition of three lawyers in the program to counteract a $55 million budget deficit for circuit court. The association offered a 12.5% reduction and no new lawyers, prompting the court to terminate the contract. The juvenile court plans to appoint individual lawyers to handle LADA’s 3,800 cases. LADA had requested that the Supreme Court intervene, but the court declined to take up the matter.
It is truly a sad day for juvenile representation in Michigan. I have long advocated public defender offices for indigent juvenile respondents. This move puts Wayne County three steps back. These types of cuts to indigent representation will bring Michigan back to the days before In re Gault, [387 U.S. 1 (1967)] the landmark U.S. Supreme Court decision which established that under the Fourteenth Amendment, juveniles accused of crimes in a delinquency proceeding must be accorded many of the same due process rights as adults such as the right to timely notification of charges, the right to confront witnesses, the right against self-incrimination, and the right to counsel.
As court budgets throughout the state are increasingly strained due to the current economic climate, watch for more cuts to indigent representation, including GALs for incapacitated adults, representation for parents and children in child abuse and neglect matters and criminal defense. Cutting indigent representation is a much easier way for a court to meet its budget task than laying off court staff. It is much more difficult to look at someone you have worked with for years and tell them not to come into work tomorrow than to simply cut a contract. While I understand how difficult these choices can be, these children have a right under the United States Constitution to competent legal counsel and that costs money. If courts continue in this direction, I smell a lawsuit brewing similar to the case recently settled by Michigan DHS brought on behalf of foster children.