Posted on November 27th, 2009 No comments
It is rare that the CoA issues an opinion overturning a case based on a lack of jurisdiction, but last week we got just such a case. The case addresses the proper grounds for jurisdiction under MCL 712A.2 and while the case is unpublished, it does include some arguments that may be applicable in some of your cases.
During the course of an investigation related to allegations that the child had been sexually abused by a family friend, DHS learned that Father had been convicted of 3rd and 4th degree CSC and sentenced to 6 to 15 years in prison in March 2007. The victim was a 14 year old student at the school where Father worked as a janitor and the offenses occurred at the school. DHS considered Father an unfit parent based solely on his CSC offenses.
DHS filed a petition to terminate Father’s parental rights under MCL 712A.19b(3)(g), (h), and (j). The trial court found that “based on the information provided that father will not be around for a significant priod of this child’s life and that satisfies MCL 712.2(b)(1) and (2). The Court went on to find a statutory basis for termination of parental rights under MCL 712A.19b(3)(g), (h), and (j). Later, the trial court found termination was in the child’s best interests.
In its analysis, the Court of appeals addressed whether the trial court properly found jurisdiction. The Court looked at four basis upon which a court may acquire jurisdiction under MCL 712A.2.
1) The first basis for jurisdiction under § 2(b)(1) is that the parent “legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals.” In this case, the Court found Father was unable to provide for the child due to his incarceration.
2) The second basis for jurisdiction under § 2(b)(1) is that the child “is subject to a substantial risk of harm to his or her mental well-being.” Where the child is the victim of a criminal offense committed by the parent, the court can exercise jurisdiction under the second clause of § 2(b)(1) because “there most certainly will be some negative effect on the child’s mental well-being” and the fact that the parent is incarcerated at the time the petition is filed “does not eliminate the mental and emotional effect on the child of his violent conduct.” In re S R, 229 Mich App 310, 315; 581 NW2d 291 (1998). In this case, since the CSC was committed on an unrelated minor and the child had no knowledge of the crime, there was no risk of harm to the child.
3) The third basis for jurisdiction under § 2(b)(1) is that the child has been abandoned by her parents. To abandon something is “to leave completely and finally; forsake utterly; desert.” Random House Webster’s College Dictionary (1992). In the context of the parent-child relationship, abandonment is most often described as willful or intentional conduct on the part of the parent which manifests a settled purpose to forgo all parental duties and relinquish all parental claims to the child. In re TCB, 166 NC App 482, 485; 602 SE2d 17 (2004). Accord Petition of CEH, 391 A2d 1370, 1373 (DC, 1978); Hinkle v Lindsey, 424 So 2d 983, 985 (Fla App, 1983); In re Adoption of DA, 222 Ill App 3d 73, 78; 583 NE2d 612 (1991); In re Adoption of MLL, 810 NE2d 1088, 1092 (Ind App, 2004); In re Guardianship of DMH, 161 NJ 365, 376-377; 736 A2d 1261 (1999). In this case, father communicated with the child from prison, so this ground was improper.
4) The fourth basis for jurisdiction under § 2(b)(1) is that the child is without proper custody or guardianship. If the child is living with another legally responsible adult who is providing proper care, the child is not without proper custody or guardianship despite the fact that the parent himself is unable to provide proper custody. MCL 712A.2(b)(1)(B); In re Nelson, 190 Mich App 237, 241; 475 NW2d 448 (1991). In this case, the child was living with mother and there was no evidence she was not providing proper care.
5) Jurisdiction may also be acquired under § 2(b)(2). This subsection requires proof that due to some danger posed by a parent, the child’s home or environment is an unfit place for the child to live. However, a parent’s criminal status alone is not sufficient to enable the court to exercise jurisdiction under § 2(b)(2). In the Matter of Curry, 113 Mich App 821, 830; 318 NW2d 567 (1982). It must also be shown that the child’s custodial environment was unfit. Id.
Finding that there was no applicable basis for jurisdiction, the Court reversed the termination. The Court did not address whether any of the statutory bases for termination were proper. I do not believe the case was remanded because the finding was that the Court lacked jurisdiction.
This is a nice post to review whenever you are thinking about challenging jurisdiction because the opinion is comprehensive in its analysis of each of the grounds upon which a court may acquire jurisdiction over a child under MCL 712A.2. The case also provides some nice citations to certain defenses to jurisdiction you may want to use.
You can view or download the opinion here: In re Johnson
Posted on November 25th, 2009 No comments
Gov. Jennifer Granholm has signed legislation that exempts babysitting from day care regulations after the state ordered a Barry County woman to stop watching her friend’s children before school.
The Republican-led Senate approved the bill on a 37-0 vote earlier this month. The Democratic governor signed it Tuesday. As I reported earlier on this site, the state Department of Human Services sent a letter to Lisa Snyder of Irving Township in August warning her that if she continued watching three children for about an hour each day before school, she’d be violating a law aimed at the operators of unlicensed day care centers.
The bill is HB 5514, you can get complete information on the Michigan Legislature website or by clicking here.
Posted on November 25th, 2009 No comments
First, a little procedural history: In an unpublished decision on March 24, 2009, the Court of Appeals affirmed the termination of father’s parental rights in a 2-1 opinion with Judges Jansen and Borrello in the majority and Judge Stephens dissenting. The matter was presented to the Supreme Court on leave to appeal. In an order dated October 23, 2009, the Supreme Court reversed the Court of Appeals in lieu of granting leave to appeal.
Here are the facts: The children initially came into care because of Father’s drinking problem, the fact that he allowed a known sex offender to reside in the home with the family, the dirty and unkempt nature of the home and his neglect of the children.
At the time of the termination, Father had remained sober for over a year, the sex offender no longer resided with the family and he had exercised supervised parenting time. Father had moved in with his sister and brother-in-law, who lived more than 30 miles from where he worked. The move was the result of Father’ s financial difficulties and his inability to make the mortgage payments. Father had complied with all of the requirements and services offered, with the exception of having his own home for the children.
Judges Jansen and Borrello ruled that the facts justified a statutory basis for termination under MCL 712A.19b(3)(c)(i), in that Father’s housing continued to be inadequate. They also held that termination was proper under MCL 712.19b(3)(g), in as much as he had failed to provide proper care and custody and he was unlikely to do so within a reasonable time.
In a very well-written dissent, Judge Stephens wrote the following:
. . . the court improperly focused on the fact that respondent failed to meet the mortgage obligations on his former home. That home was originally purchased with the children’s mother, from whom respondent was later estranged. The decision to purchase the home was based upon the belief that both parents would make economic contributions. Therefore, when the couple separated, the home was the subject of an orderly short sale. This is woefully common in Michigan in 2009. By partially basing its decision on this consideration, the court improperly concluded that this unfortunate, though common, occurrence is an indication that an individual is an unfit parent.
Similarly, the court was also critical of respondent’s choice to work at Wal-Mart rather than seek employment as a chemical engineer. While one may speculate as to whether there are employment opportunities for inexperienced chemical engineers, the sole focus of the court should be whether respondent has any legal source of income, whether that income is adequate to care for the children and whether it will likely be used for that purpose. The fact that respondent could have potentially earned a greater income does not automatically indicate that his income was inadequate.
Judge Stephens also addressed the trial court’s criticism of his choice to live with his sister and brother-in-law. Father testified that he relied on his family, church and sobriety groups to maintain his sobriety. Judge Stephens noted the fact that Father’s choice to move in with relatives brought him closer to that support system and there was no evidence that the home was not safe, clean or spacious enough for the children. Father had even crafted a detailed plan for the children at that home. Judge Stephens cites the U.S. Supreme Court case Moore v East Cleveland, 431 US 494, 505; 97 S Ct 1932; 52 L ED 2d 531 (1977):
“Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home . . . Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life.”
On application for leave to appeal, the Supreme Court reversed the opinion of Judges Jansen and Borrello and adopted the reasons stated in Judge Stephens’ dissenting opinion.
This opinion reflects a sign of the times here in Michigan. With the home foreclosure rate and short sales sky high in Michigan, Father in this case found himself in an all too familiar circumstance. Certainly, we cannot terminate the rights of every parent that loses their home to foreclosure or short sale. As Judge Stephens points out, the proper inquiry is whether the children are properly cared for and whether the home is an adequate environment for the children.
Sometimes it becomes difficult for judges and those of us who find ourselves in occupations that are somewhat insulated from ordinary market forces to fully understand the economic hardships being experienced by many in Michigan. We cannot become insensitive to the cultural or other circumstances that lead people to live situations other than the traditional nuclear family where the household consists of mom, dad, the kids and the family pet. I think the dissent in this case does an excellent job making this point. Frankly, Judge Stephens did a better job than I could have on the issue.
You can download the majority opinion here: In re Mitchell (majority)
You can download the dissent here: In Re Mitchell (dissent)
You can download the Supreme Court’s Order here: In re Mitchell (Supreme Court)
Posted on November 20th, 2009 No comments
You can now get your Michigan Children’s Law updates on the go with your iPhone/iTouch. Our web site is now optimized for your iPhone and iTouch. You can even review and browse previous posts by tag or category. Just bookmark Michigan Children’s Law Blog on your phone and you are ready to go!
Posted on November 19th, 2009 No comments
I know this blog is geared to Children’s law issues, but I wanted to pass this along because I understand that most lawyers in this field do not have the funds for expensive legal research services (Lexis and Westlaw). I have been playing around with Google’s legal research function on Google Scholar and I have found it to be very helpful. Google scholar (http://scholar.google.com) looks very much like the traditional Google search engine page. It allows you to search scholarly literature, just like Google Images allows you to search picture s on the web. You can search across many disciplines and sources: articles, theses, books, abstracts and court opinions, from academic publishers, professional societies, online repositories, universities and other web sites. Google Scholar helps you find relevant work across the world of scholarly research.
Now, Google Scholar has added legal research to the mix. Under the search bar, you can click on “Legal opinions and journals.” Then, using traditional Google search terms you can search for case law. An advanced Scholar search will allow you to narrow your search to federal or state courts. I have done a number of searches today and found it fairly easy to use. This may be in large part because I am used to performing Google searches for other subjects.
The cases show the pagination for the Northwest reporter series. One interesting feature is the “How Cited” tab, where you can see how individual cases have been quoted or discussed in other opinions and in articles from law journals.
Overall, it is a very nice free legal research tool. I have added a link to Google Scholar on my links page under legal research.
Google Scholar: http://scholar.google.com
Posted on November 10th, 2009 No comments
In this case, the trial court terminated Respondent Mother’s parental rights to her son pursuant to MCL 712A.19b(3)(l) which states: “[t]he parent’s rights to another child were terminated as a result of proceedings under § 2(b) of this chapter or a similar law of another state.” Previous proceedings had been initiated seeking temporary jurisdiction over Respondent Mother’s daughter. Following an adjudication, the child became a temporary court ward. Later, a supplemental petition was filed seeking to terminate her parental rights. Facing possible involuntary termination of their rights, Respondent Mother and the father instead voluntarily released the child to the Department of Human Services under the Michigan adoption code on June 20, 2007. In an effort to beat a dead horse, following that termination, the trial court on July 3, 2007 attempted to again terminate their rights to their daughter, make the child a permanent ward of the court, and commit the child to the Department of Human Services, this time under the Michigan juvenile code, giving as the legal reason the parents’ voluntary release of their parental rights to her under the adoption code. The Court of Appeals found that this subsequent termination under the juvenile code was invalid because the parents had no rights to terminate after they voluntarily released their parental rights under the adoption code.
The Court held MCL 712A.19b(3)(l) only applies to a prior involuntary termination under the Michigan juvenile code or a similar law of another state. It does not apply to a voluntary termination under the Adoption Code. While the Court found that the trial court erred in terminating parental rights under 712A.19b(3)(l), it found that error harmless because termination would have been proper under MCL 712A.19b(3)(m) which states: “[t]he parent’s rights to another child were voluntarily terminated following the initiation of proceedings under § 2(b) of this chapter or a similar law of another state.” The termination under the Adoption Code was held to be a voluntary termination that qualified under 712A.19b(3)(m).
The Court went on to affirm the best interest findings of the trial court. The Court also addressed the trial court’s decision to allow a foster care agency worker to offer an opinion regarding the risk that a person infected with HIV (human immunodeficiency virus) could transmit it to another person (Mom was HIV positive). The Court’s ruling on this issue is a little difficult to understand, but it found the trial court did not abuse its discretion in allowing the testimony because it was admitted for a very narrow purpose and the error would be harmless in any event because there was ample testimony that termination was in the child’s best interests.
All in all this case does not tell us much we didn’t already know: basically, any termination, whether it be voluntary or involuntary, can lead to termination of parental rights. Just be sure you cite the proper section in your petitions and orders of termination.
You can view or download the case here: In re MAJ
Posted on November 9th, 2009 No comments
The Michigan Supreme Court has proposed amendments to MCR 3.932, the rule governing the consent calendar. The proposal gives two alternatives. Alternative A would eliminate the Consent Calendar completely by striking sub-paragraph C. Alternative B would require a prosecutor’s consent to the use of the consent calendar and would prohibit the court from placing a case for an assaultive crime as
defined in the Juvenile Diversion Act on the consent calendar. The proposal is in the comment phase at the moment.
It appears supporters and the detractors have lined up on both sides of the issue. Prosecutors generally are in favor of both options, but would prefer Alternative B. Defense attorneys and judges have lined up against both alternatives.
Naturally, I am against either proposal. The consent calendar, as applied, is very similar to the Holmes Youthful Trainee Act (HYTA). The Holmes Youthful Trainee Act is a diversionary program for defendants between 17 and 21. At the discretion of the judge an offender may be placed on probation for a period of time and if the offender completes probation the case will be dismissed without a conviction. This program has been successful in the adult court.
Similarly, the consent calendar is a type of diversion. A juvenile offender may be placed on the consent calendar at the discretion of the judge. A juvenile on the consent calendar is ordered to probation for a period of time and the case is a removed from the adjudicative process. If the offender completes the probation, the matter is dismissed and it is as if the juvenile was never charged. The records of the matter are kept private and no report or abstract may be made to any other agency. If the juvenile does not complete the probation, he or she may be placed back on the formal calendar and adjudicated for the offense.
Prosecutors are purportedly in favor of these amendments because, as at least one prosecutor put it, “The current court rule completely ignores the rights of the victims. The current consent docket also prevents the victim from having their day in court to redress the wrongs committed against them.” While this is a direct quote from one prosecutor’s comment on the proposal, it accurately summarizes the position of most prosecutors that commented on the proposal. This argument seems disingenuous to me because MCR 3.932(C)(3) clearly allows the victim to be present at the consent conference and I have not seen any evidence of victims being denied the right to speak at these hearings.
The second argument set forth by the prosecutors is that “the consent docket does nothing but send the message to juvenile offenders that there will be no meaningful consequences for criminal wrongdoing.” To this argument, I would simply point out that the purpose of delinquency petitions under the juvenile code is not to punish, but to rehabilitate the juvenile. Currently, Michigan law reflects in part this emphasis. MCR 3.902(B)(1)–(2) state as follows:
The rules must be interpreted and applied in keeping with the philosophy expressed in the Juvenile Code. The court shall ensure that each minor coming within the jurisdiction of the court shall:
(1) receive the care, guidance, and control, preferably in the minor’s own home, that is conducive to the minor’s welfare and the best interests of the public; and
(2) when removed from parental control, be placed in care as nearly as possible equivalent to the care that the minor’s parents should have given the minor.”
MCL 712A.1(3) contains similar language. I think the prosecutors have either missed the mark or they are not telling the real reason they are pushing for this proposal. If I had to guess, I would think the prosecutors are not happy with juveniles facing sex offenses being placed on the consent calendar to avoid the requirements of the sex offender registry. Perhaps it was easier to simply do away with the consent calendar than to ask the legislature amend the Sex Offender Registry Act to include children placed on the consent calendar.
On the flip side of the debate, defense attorneys and judges wish to keep the consent calendar because it provides sentencing flexibility and recognizes that juveniles are less culpable for their actions than adults.
I am opposed to the proposal for three simple reasons:
1) Just as HYTA has been successful for many young adult offenders, I have seen the consent calendar successfully used as a tool to straighten out some kids that were starting on a bad path.
2) If a juvenile does not straighten out and complete the consent calendar probation requirements, they can be placed back on the formal calendar and adjudicated. Thus, there is no downside to the consent calendar: either the juvenile is rehabilitated on consent or he or she is adjudicated and you try stronger measures.
3) Judges of the family division are elected by the people to make dispositional decisions with respect to juvenile offenders. Taking one of those tools away from them or putting judges at the mercy of prosecutors creates unnecessary barriers to the rehabilitation of minors. Further, it seems like a violation of the separation of powers to give the prosecutor a trump card over the judge by requiring the prosecutor’s consent to place a juvenile on the consent calendar.
You can follow the progress of this amendment here: Michigan Supreme Court Proposed Court Rule Amendments