ABA Report on Parent Representation in Michigan

The Michigan State Court Administrative Office, Child Welfare Services Division, through the Court Improvement Program, has been focusing on improving the quality of legal representation in Michigan. As part of this project, they contracted with the ABA, Center on Children and the Law to conduct an independent study of legal representation for parents in Michigan and to make recommendations for improvement. The report addresses some of the larger concerns like compensation, training, client communication and codifying the duties of attorneys for parents.

The report also suggests appointing counsel prior to the filing of a petition.  This is really a great idea so attorneys can work with DHS to perhaps  avoid the filing of a petition.  Many parents would voluntarily comply with services, if they had trusted representation to explain their options to them.

The report identifies the problem of leaving the compensation of attorneys to the individual counties.  In Oakland County, for example, they have cut compensation for counsel for parents and are only appointing attorneys if requested.  Both of these measures take us backward from the recommendations suggested in this report.  Oakland County is certainly regressing in terms of the quality of counsel it is providing for indigent parents.  In the time of budget cuts, it is easier to cut contract attorneys than salaried employees.

I hate to sound like a pessimist, but in Michigan’s current economic climate, I doubt our legislature will find it a budget priority to provide adequate counsel for “neglectful” and “abusive” parents.  This report will be buried along with a number of other good ideas that would benefit families and children in Michigan.

If you would like to view or download the report, click here: Michigan Parent Representation Report

Middleville mom ordered to stop watching friends’ children waiting for bus

Bureaucratic rules often lead to absurd results.  In this case, I am compelled to believe that DHS has lost its ever-loving mind!

Francie Brummel and Lisa Snyder thought they had a perfect solution to getting their two kids on the Thornapple Kellogg school district bus.  Brummel drops her 7-year-old son off at Snyder’s nearby house on her way to work, where he waits for about an hour before the bus comes each morning.  Another neighbor, Lori Forbes, brings her son and Mindy Rose’s son to Snyder’s home as well. Snyder waits with all of them for the bus.  The women are all friends who live near each other in a rural part of Barry County.  Snyder’s home on Thornbird Drive is a designated bus stop, and the children would all ride the same bus anyway.

Seems like a reasonable solution so your children do not have to wait out in the cold for the bus, right?  Well, not according to DHS.

After only three days of school, Snyder was notified by the state Department of Human Services that a neighbor had filed a complaint that she was operating an illegal day care out of her home.  Really? Are you kidding me?

That was a rhetorical question, but I’m going to answer it anyway.  According to state law, a person cannot provide care for unrelated children in their home for more than four weeks per calendar year unless they are licensed or registered with the state.  Failure to do so is a misdemeanor punishable with fines or jail time.

This story has now been covered in all of the local papers and nationally on the Today Show.  Frankly, this is an embarrassment for the State and DHS.

You can view the interview on the Today show here:

State Representative Brian Calley has introduced legislation to prevent this in the future. The problem is that this lady should have never been prosecuted in the first place.

In re Mason – Separate Best Interest Hearing Not Required on Supplemental Petition

In this case, the Court of Appeals affirmed a termination of respondent father’s parental rights on a supplemental petition.  He argued that the trial court erred by not holding a separate best interests hearing after finding a statutory basis to terminate his parental rights.  The CoA held the argument was without merit because where termination is requested pursuant to a supplemental petition filed after the initial dispositional hearing, the trial court need only conduct a single hearing at which both the statutory ground for termination and the child’s best interests were considered. Defendant was not entitled to a separate best interests hearing.  The CoA cites MCR 3.977(G)(1)(b) and (3) in support of its finding, which state:

(G) Termination of Parental Rights; Other. If the parental rights of a respondent over the child were not terminated pursuant to subrule (E) at the initial dispositional hearing or pursuant to subrule (F) at a hearing on a supplemental petition on the basis of different circumstances, and the child is within the jurisdiction of the court, the court must, if the child is in foster care, or may, if the child is not in foster care, following a dispositional review hearing under MCR 3.975, a progress review under MCR 3.974, or a permanency planning hearing under MCR 3.976, take action on a supplemental petition that seeks to terminate the parental rights of a respondent over the child on the basis of one or more grounds listed in MCL 712A.19b(3).

(1) Time.

…

(b) Hearing on Petition. The hearing on a supplemental petition for termination of parental rights under this subrule must be held within 42 days after the filing of the supplemental petition. The court may, for good cause shown, extend the period for an additional 21 days.

(3) Order. The court must order termination of the parental rights of a respondent and must order that additional efforts for reunification of the child with the respondent must not be made, if the court finds

(a) on the basis of clear and convincing evidence admitted pursuant to subrule (G)(2) that one or more facts alleged in the petition:

(i) are true, and
(ii) come within MCL 712A.19b(3).

(b) that termination of parental rights is in the child’s best interests.

I believe the CoA based its opinion on the singular use of the word “hearing” in MCR 3.977(G)(1)(b).  However, I don’t read the rule as a basis to deny a separate best interest hearing on a supplemental petition.  To the contrary, the fact that the statutory basis findings and the best interest findings are set forth in separate sub-paragraphs indicate that a separate hearing is required.

Also, take a closer look at MCR 3.977 (G)(3)(a) and (b).  You will notice that the clear and convincing standard is used for finding a statutory basis for termination in sub-paragraph (a), but  there is no standard listed for the best interest findings in sub-paragraph (b).   The way this rule is drafted leaves some ambiguity as to the standard of proof necessary to show that it is in the best interests of the child to terminate parental rights.

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

The Juvenile Lifer Law: The Debate Continues

The Detroit News printed an article regarding the juvenile lifer law today.  The byline reads, “Mich. ranks second in number of young killers behind bars.”  The report cites a study from the University of Texas that says Michigan has the second most such inmates in the country. The report also says Michigan is among the harshest in the way it treats teens accused of major crimes.

“Children simply aren’t as culpable as adults because their brains aren’t fully developed yet, and they are much more capable of rehabilitation,” said Michele Deitch, an adjunct professor at the University of Texas and principal investigator of the study.

The option to sentence juveniles as adults is “harsh” treatment, the study’s authors said. Michigan’s guidelines — unlike most states’ — require a child who is convicted as an adult of first-degree murder to receive the same sentence as an adult: mandatory life in prison without parole.

The report, released this summer, gave Michigan the dubious distinction, along with three other states — Pennsylvania, Florida and South Carolina — of having children most likely to end up in adult prisons, because of mandatory sentencing laws and the ease of transferring juveniles into the adult system or imposing adult sentences.

If you read this blog often you know that I believe Michigan has a duplicitous view of juvenile delinquency.  The statute indicates that the purpose is rehabilitation, but in practice, the law functions more to punish.  Michigan should decide what the public policy is in addressing juvenile delinquency.

You can view the article here: Teen lifers a burden for state’s prisons.

In re Hale – Discovery Violations

I am reviewing some of the past E-Journals from the summer.  With twins, it is sometimes difficult to be diligent in reviewing the E-Journal daily.  This opinion was issued July 23rd and I thought it was worth posting.

Respondent was 11 years old during the incidents at issue and was charged with two counts of CSC I (engaging in penetration with a person under the age of 13).  He was alleged to have penetrated the victim’s anus with his penis.  Respondent filed a motion to dismiss and attached the expert affidavits of five physicians and/or psychologists who opined the prosecution was not in the best interests of respondent or the public.  They opined respondent’s genital measurements were such he was incapable of sexually penetrating the victim and causing the alleged anal trauma, his sexual-acting-out behaviors were normal prepubescent sexual experimentation, and he did not have the capacity to understand what he was doing was wrong.  The referee denied the motion without prejudice.

Later a show-cause hearing was held to decide if the prosecutor should be held in contempt for failing to turn over discoverable evidence. At the hearing, respondent reinvoked his earlier motion to dismiss.  The trial court dismissed the juvenile petition on the basis of the prosecutor’s multiple discovery violations and the expert affidavits attached to respondent’s earlier motion to dismiss.

The CoA held the prosecution’s various claims were without merit and analyzed respondent’s six issues related to the discovery violations.  The court held the prosecutor engaged in repeated discovery violations as to the discoverable items in her possession, notwithstanding court orders to turn them over.  Holding the prosecutor’s “repeated and willful discovery violations” constituted a legitimate basis in and of themselves to dismiss the petition charging the respondent-juvenile with CSC I arising out of his contact with a 10-year old acquaintance/friend, the court affirmed the trial court’s dismissal of the delinquency proceedings.  The court also found a police detective engaged in, at a minimum, inexcusable neglect as to discovery.

The lesson here is that there are serious consequences when the prosecutor decides to play games with discovery.  Make sure you are diligent in getting your discovery requests out and following up with the prosecutor and the court by motion when you are not receiving answers.  Most of my practice is in Oakland County and the prosecutors are very good about getting you discovery, but I am sure there are issues with discovery here and elsewhere.

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

In re Cooper – Putative Father

There were 10 termination of parental rights opinions from the Court of Appeals on the E-Journal this morning.  All of them affirmed the termination.  In In re Cooper, Respondent father argued that the trial court erred in failing to take action to ascertain his status as the child’s father, as a result of which he was deprived of his right to court-appointed counsel.  The Court of Appeals found the trial court failed to comply with MCR 3.921(C) (presumably the notice requirements) after finding at the preliminary hearing probable cause to believe that respondent was the child’s putative father.  However, they found he was not prejudiced by any error that may have occurred. Respondent was not entitled to counsel until he became a respondent by establishing paternity, and he did not take exception to the trial court’s exercise of jurisdiction over the child before paternity was established.  After respondent established paternity, counsel was appointed to assist him, the termination hearing was adjourned to permit respondent to confer with counsel, and respondent was represented by counsel at the hearing.  Under the circumstances, the Court held, any error was harmless.

The Court engages in a nice little discussion of when a parent is entitled to counsel:

A respondent in a child protective proceeding has a due process right to counsel. In re EP, 234 Mich App 582, 597-598; 595 NW2d 167 (1999), overruled on other grounds by In re Trejo, 462 Mich 341, 353 n 10; 612 NW2d 407 (2000). That right is also guaranteed by statute and court rule. MCL 712A.17c(5); MCR 3.915(B)(1). In child protective proceedings, a putative father, i.e., the alleged biological father of a child who does not have a legal father, is not a respondent. MCR 3.903(A)(7), (17), and (23); MCR 3.903(C)(10). Therefore, until respondent became a legal father by completing and filing an acknowledgement of parentage, MCR 3.903(A)(7)(e), he was not entitled to the appointment of counsel.

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

In Re Gunther – Custody During while under Court Jurisdiction – Unpublished

This case involves a child custody matter and the court’s authority to place a child while under its jurisdiction.  Pursuant to a divorce judgment, mother and father shared legal custody of their two children, with the mother having physical custody.  The children came within the Court’s jurisdiction due to a school truancy petition filed by the school district, alleging both children had missed a considerable number of school days, many of which were unexcused.

After taking jurisdiction, the trial court placed the children with father.  Mother moved for immediate return of the minor children, arguing that the trial court erred in failing to consider the established custodial environment of the children or the best interest factors under the Child Custody Act (CCA).  The motion was denied by the trial court.

On appeal, mother argued that the court should have treated the matter like a change of custody under the CCA.  The Court of Appeals engaged in a discussion of its recent opinion In re AP & BJ regarding the interplay between child custody matters and child protection proceedings.  The CoA held that while the trial court continues to exercise jurisdiction over the children through the juvenile proceedings it is charged with a duty to take measures with respect to children and adults properly within its jurisdiction, including placing the children in the home of a related adult.  If at the time the juvenile court dismisses its jurisdiction over the child it concurrently orders a change of custody, the juvenile court must abide by the procedural and substantive requirements of the CCA, including a more formal determination of the child’s best interests.

My two cents: This was a pretty straight forward decision.  While a child is within the jurisdiction of the Court as a result of a child protection proceeding or juvenile delinquency, the ordinary custodial orders are suspended and the court is vested with those powers ordinarily left to the custodial parent(s), including the authority to place the child.  The public policy behind this is sound because in an ordinary custody case, maintaining the child’s established custodial environment is favored.  When there jurisdiction under delinquency or a child protection proceeding, there has been some failure of the established custodial environment to protect the child or the public and the state must intervene.  Thus, the status quo is not favored and the approach under the CCA does not apply.

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