In re Abdullah – Delinquncy – CSC

Respondent, a 16 year old juvenile, appealed from an adjudication of CSC 3rd degree and placed in a juvenile facility.  The only charge against the respondent was one count of first-degree criminal sexual conduct, MCL 750.520b(1)(g) (CSC I). The complainant, who was six days shy of her twenty-first birthday on the date of the incident, testified that she passed out in the basement of respondent’s family’s apartment following a night of heavy drinking, and awoke in the morning to find respondent sexually penetrating her.  She could not recall the events between 3 a.m. and 10 a.m. and had only minor abrasions and bruising.  No medical testimony was presented regarding the injuries.  Respondent’s testimony was simply that the two  drank heavily and had sex.

During closing arguments the prosecutor asked the Court (it does not appear the matter was tried by a jury) to also consider, in the alternative, CSC III.  Respondent did not object.  The trial court found the complainant was drunk and unable to give consent.  The trial court did not find CSC I for injury to an incapacitated victim because there was no medical testimony to support a finding that an injury occurred.  The trial court did find the respondent guilty of CSC III for engaging in sexual penetration accomplished by force or coercion.

On appeal, respondent did not argue that CSC III is not a necessary lesser included offense of CSC I.  On its own motion, the Court of Appeals held that in this case CSC III was a cognate lesser offense, rather than a necessarily included lesser offense.   They ruled that the the trial court erred by considering the lesser cognate offense of CSC III because it violated the respondent’s due process right to notice that he faced a charge of CSC III.  Consequently, the Court vacated the adjudication and remanded for an order of discharge.

Please note that neither the trial attorney or the appellate attorney (they may have been the same person) raised the issue of the lesser included offense.  The lesson here: know your lesser included offenses.

You can read the CSC I and CSC III statutes here: CSC I, CSC III

You can view or download the opinion here: In re Abdullah

New Link: Calhoun County Juvenile Review

I added a new link to the Links page today.  The Calhoun County Juvenile Review is a review and summary of recently decided juvenile cases which have significant impact on the law.  The reviews are provided by Berrien County Probate Judge Thomas E. Nelson and Cass County Probate Judge Susan L. Dobrich.  They are very well-done and a very useful resource.  Ryan uses them as a reference for his state of the law seminar each year.

From detnews.com: Young sex offenders strain Berrien County budget

I found this little article on detnews.com off the AP wire today.  Apparently, treatment for juvenile sex offenders may not even be spared from the budget axe.

Officials say the cost of treating juvenile sex offenders could push Berrien County Trial Court’s 2010 budget over the targeted amount by $677,000.

Total court spending is estimated at $22.2 million, while the budget target is $21.54 million. A hearing before the county board’s finance committee is scheduled for Sept. 8.

Elvin Gonzalez, administrator of the trial court’s Family Division, says the county currently has 33 juveniles requiring costly out-of-home placement. He says that includes 12 sex offenders needing placement in specialized treatment programs at a cost of $100,000 per year, the average stay required for an effective outcome.

Asked by Commissioner Gloria Gillespie whether the county could provide expanded, less expensive foster care for young sex offenders, Gonzalez said such youths often can’t live in the community.

Juvenile sex offenses have always been difficult for me.  On the one hand, a child who commits a sex offense is in serious need of treatment.  On the other hand , the application of SORA and other aspects of an adjudication, make the impact of an adjudication draconian for the minor.  I believe there must be a public policy decision made regarding whether a juvenile who commits a sex offense can be rehabilitated.  If so, he or she should not be forced to register as a sex offender once successfully released from the Court’s jurisdiction.  It does not serve the public good or the minor to make him or her register as a sex offender if they are not a risk to the community.  If it is not possible to rehabilitate a juvenile sex offender, alter the system to treat juvenile sex offenses in the same manner as adults, where the goal is to protect society from these dangerous individuals and eliminate the pretext of attempting to help them.

In re Handorf – A Guardian’s Authority to Consent to Adoption

The Court of Appeals recently released a published opinion regarding the authority of guardians to consent to an adoption.  Petitioners are the guardians of the minor child at issue.  They petitioned the probate court for authority as guardians to consent to their own adoption of the child.  Dad consented to the adoption.  Mother did not.  The trial court ruled that it could only grant their request if the child’s parents’ parental rights were first terminated and, unless the parents’ consented, it lacked authority under the guardianship code to allow the guardians to consent to adoption if parental rights are intact.  Petitioners appealed the trial court’s ruling.

Citing the adoption code, the court wrote: “a child shall not be placed in a home for the purpose of adoption until an order terminating parental rights has been entered pursuant to [the Michigan Adoption Code] or [the Michigan Juvenile Code] and the court has formally approved the placement under [MCL 710.51].”  MCL 710.41(1).  Unless there is parental consent to the adoption, an adoption petition must be accompanied by, among other things, “a copy of each release or order terminating parenal rights over the child having a bearing upon the authority of a person to execute the consent to adoption.” MCL 710.26(1)(a).  The Court concluded that the first prerequisite for adoption is termination of the parents’ parental rights (in the absence of parental consent).  Thus, before a guardian may petition the court to consent to an adoption under MCL 700.5215(e),  they must either have parental consent or an order terminating parental rights.

This was always my understanding of the state of the law, but it is nice to have some case law.

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

In re Eastman – Insufficient Evidence for Termination

In this unpublished opinion from Ingham County, the supplemental petition alleged CPS received a complaint respondent was selling drugs and had guns in his house.  Four days later, the foster care worker referred him for a drug screen, which he failed to complete.  DHS attempted to follow up with him without success.  The trial court terminated Father’s parental rights pursuant to MCL 712A.19b(3)(g) [The parent, without regard to intent, fails to provide proper care or custody for the child 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.]

The CoA reversed, holding that the evidence established there was a cause for concern regarding his ability to provide proper care and custody, but the CPS complaint was not substantiated.   The evidence did not clearly and convincingly show respondent was unable to provide proper care and custody or he would not be able to do so within a reasonable time.   The evidence at the hearing established the CPS complaint was unfounded and subsequent drug screens indicated respondent was not using drugs.   Because there was no reason to believe he abused drugs or kept guns in his home, there was no basis for concluding he was unable to provide proper care and custody or he would not be able to provide proper care and custody within a reasonable time given the child’s age.

This case is significant because it deals with the sufficiency of evidence necessary to substantiate the allegations contained in the petition under the clear and convincing evidence standard.  In this case, because Father failed to follow up on drug testing, there was no  evidence to support the allegation that he was using or selling drugs.   I have often argued that the burden to show a statutory basis to terminate parental rights is on the state – the parent is not required to prove anything.   However, it does not always feel that way or (as evidenced in this case) work that way in practice.  Often, when allegations are made by DHS the respondent must disprove them at trial in order to prevail.   Even in this case, the CoA went out of its way to make clear that “subsequent drug screens indicated that respondent was not using drugs.”  Would the Court have ruled the same way had father refused drug testing throughout the adjudicative process?  I suspect not.  Nevertheless, before the state may sever the Constitutionally protected rights of a parent to his or her child, it must clearly and convincingly make its case and the parent is not required to assist the state in its prosecution.

You can view or download the file here: In re Eastman