Posted on January 30th, 2010 No comments
I was in the process of cleaning up my office and burning up my document scanner when I came across some seminar materials on Alternatives to Termination of Parental Rights, presented by Bill Bartlam of the Oakland County Circuit Court. These materials cover each of the permanency goals for children in foster care:
- Reunification with family,
- Adoption, following termination of parental rights,
- Permanent Guardianship,
- Permanent Guardianship with Fit and Willing Relatives, and
- APPLA and APPLA-E or Another Planned Permanent Living Arrangement
I am providing these materials for all of you to enjoy.
You can view or download them here: Alternatives to Termination of Parental Rights
Posted on January 29th, 2010 No comments
The Court of Appeals issued another opinion reversing a termination of parental rights this week. The case involves the trial court’s termination of an incarcerated Father’s parental rights.
In this case, the child (XNI) was initially brought within the trial court’s jurisdiction based on allegations of mother’s neglect (there were no allegations regarding father). The petition, filed in November 2007, identified a putative father and noted his address in an Indiana state prison.
In December 2007, DNA testing established father’s paternity. In September 2008, counsel was appointed for Father for a permanency planning hearing. Father was not given an opportunity to appear at the hearing by phone. Father’s counsel did not object to his client’s lack of an opportunity to participate. A foster care worker testified to a letter received by father indicating that his earliest release date was April 2010.
In October 2008, DHS filed a supplemental petition seeking to terminate father’s parental rights. The petition did not allege any factual allegations against Father, other than the standard statutory language under MCL 712A.19b(3)(g) & (j). Father was not provided an opportunity to participate in the termination hearing and no objections were raised by any party (including his own attorney) to his absence. At the trial, the foster care worker testified to letters written by Father that his earliest release date was in April 2010 “or sooner with educational or substance abuse time-cuts.”
On appeal, Father argued that he was denied procedural and substantive due process by the circuit court’s neglect to secure his presence at the termination hearing or his participation by phone. The Court of Appeals initially noted that MCR 2.004(A)(2), which provides for telephonic access in termination of parental rights proceedings if the parties are incarcerated under the jurisdiction of the Department of Corrections does not apply where the respondent is incarcerated out-of-state. The Court of Appeals based its analysis on whether Father’s due process rights were violated by failing to involve him in the proceedings.
The Court analyzed the case under the three factors for determining due process contained in Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976) and reiterated by the Michigan Supreme Court in Justice Corrigan’s opinion in In re Rood, 483 Mich 73; 763 NW2d 587 (2009), which are as follows:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
The Court found that MCR 2.004 represents the Michigan Supreme Court’s recognition that “basic due process principles mandate affording incarcerated parents a meaningful opportunity to be heard before the state terminates their parental rights.” The Court also concluded that the failure to secure participation by Father was not harmless error in this case because evidence could not be established that he could not be released with good behavior and able to parent prior to his April 2010 release date without his participation. In addition, the trial court failed to terminate Mother’s parental rights despite finding that “left unsupervised, [Mother] is a danger to her children.”
The Court of Appeals summarized its findings as follows:
In summary, the circuit court’s neglect to give respondent any meaningful opportunity to be heard during these proceedings, combined with petitioner’s failure to perform even the most rudimentary investigation about respondent’s background and capabilities, foreclosed the possibility of a decision predicated on clear and convincing evidence.
The court reversed and remanded the case to the trial court to provide services to Father.
While this case is unpublished, the argument should serve as a model for attorneys representing incarcerated parents in termination cases because the reasoning is so strong. The case does raise a question regarding what a court is to do if the out-of-state prison refuses to allow the parent to participate? After all, the court lacks jurisdiction to compel out-of-state prisons to do anything. The question was not raised in this case because the court did not try to secure Father’s participation, but what if it had and was denied by the prison? Would the Court of Appeals have held that the attempt to secure his participation was enough? I would hate to think it would have left the child in limbo until it could secure Father’s participation.
We also should not forget that Father’s case was buttressed by the fact that the parental rights of Mother, who had custody of the children, were not terminated. This meant the child would remain under the supervision of the court, reducing the harm in giving Father an opportunity to plan for the child. Father’s defense was also aided by the fact that DHS did not to their homework regarding,
“(1) the nature of respondent’s relationship with XNI before his incarceration; (2) the length of time that respondent had been incarcerated; (3) the date of respondent’s potential release; (4) whether respondent had attempted to plan for XNI or desired to share involvement in that process; (5) whether respondent had obtained any services in prison; or (6) whether respondent’s family members were interested in caring for XNI, MCL 722.954a(2); 42 USC 671(a)(29).”
This made it impossible for DHS to meet its burden under MCL 712A.19b(3)(g) & (3)(j).
In closing, I should also point out that the Court specifically called out the appellate attorney for not ordering the transcripts of the hearings prior to the September permanency planning hearing after Father was made legal and appointed counsel. The Court wants to see those transcripts to have a better understanding of the case. The Court was sending a strong message to all of us appellate attorneys.
You can view or download the case here: In re Ignelzi
Posted on January 29th, 2010 No comments
Below are some of the bills impacting Children’s Law we are following in the legislature along with links to the bills and bill summaries:
- HB 4118 - Gives special consideration for relatives in foster care placement.
- HB 4314 – Requires appointment of attorney in juvenile delinquency cases under (2)(a) and (d).
- HB 4518, HB 4596 – Repeal of Juvenile Lifer Law.
- HB 5174, HB 5175, HB 5482, HB 5483, HB 5484, HB 5485, HB 5486, HB 5487, HB 5488, HB 5489 – Juvenile competency procedures (Note: HB 5174 is not connected to the other bills).
- HB 5676 – Michigan Public Defense Act would create a statewide system of public defense.
I will do my best to continue to update you on these bills as information becomes available to me.
Posted on January 26th, 2010 No comments
A 10 year old Detroit boy accused of bringing an unloaded handgun to school was charged with a number of weapons violations in Wyane County Family Court. The incident occurred on January 20, 2010, when another student saw the boy with the gun in a bathroom at Brewer Elementary/Middle School and told a teacher. The teacher took the gun.
The juvenile pleaded guilty last week to possession of a weapon in a weapons-free school zone. The Wayne County Prosecutor issued a release today that a concealed weapons charge and a charge of minor in possession of a firearm in public have been dropped.
This is a little more than a case of “boys will be boys.”
Posted on January 26th, 2010 No comments
On January 12, 2010, The Detroit News ran an article with the headline “Child poverty, neglect on rise in Michigan.” The article summarizes some of the results of the annual Kids Count Report. Some of the facts in the article include:
- 40% of Michigan School children are eligible for free or reduced lunches, up from 30.7% in 2000.
- In Oakland County, 11% of children are in poverty, compared with 8.6% in 2005.
- Statewide, 1 in 5 children live in poverty.
- Poverty is tied to a 16 percent increase in confirmed cases of abuse and neglect since 2000.
- Childhood deaths are down with 18.9 deaths per 100,000 children ages 1 to 14, down from 23.1 in 2000.
- The infant mortality rate is down at 7.8 deaths per 1,000 infants from 8.1 in 2000.
- The rate of births to teens fell 20 percent over the decade.
The article correctly points out that increased poverty leads to increased instances of abuse and neglect because parents can’t provide for their children’s basic needs or take out their frustrations for their economic troubles on their children. It is interesting that in Oakland County, where poverty is on the rise, petitions seeking court jurisdiction over abused and neglected children are down. Based on the correlation between poverty and child abuse and neglect, shouldn’t we see more petitions being filed?
Some attribute the cause of the lower filings on the fact that the new Oakland County prosecutor no longer co-petitions with DHS in child neglect matters. Under this reasoning, the filings are down because DHS was being pressured into filing petitions by the previous prosecutor and the reduction is the result of DHS no longer filing petitions they consider unnecessary. Another theory is that DHS has hired new staff and this staff is being retrained. Whatever the cause, I find it hard to believe in these difficult economic times that child abuse and neglect is on the decline as the decrease in petition filings would suggest.
You can read the Detroit News Article here: Child poverty, neglect on rise in Michigan.
Posted on January 25th, 2010 No comments
The Oakland Press reports that CARE House in Pontiac may be expanding their facility. CARE House has submitted a request to the Pontiac City Zoning Board to re-zone property that includes the now closed Ducky’s Bar on Woodward between Earlmoor Boulevard and Nebraska Avenue. If approved, CARE House, who already owns the property, plans to demolish the bar and its own facility to build a new building at the location.
Most of us who do child abuse and neglect work in Oakland County are very familiar with CARE House. CARE House provides advocacy, prevention, intervention and treatment services to children who have suffered abuse and neglect. They also conduct forensic interviews of children who are alleged to have suffered abuse and neglect. According to the Oakland Press, CARE House has declined to talk about the plans publicly, but hopefully these new facilities will provide better rooms to conduct the forensic interviews also. I am sure we will be hearing more about this if and when the zoning plan is approved.
You can check out the Oakland Press article here: CARE House hopes to tear down Pontiac bar, build new facility
Posted on January 25th, 2010 No comments
Earlier this month, the U.S. Department of Justice released survey results regarding sexual assaults in youth detention centers in Michigan. The data is based on anonymous surveys issued to children in youth detention centers. The survey revealed that nearly one in four kids said they had been sexually assaulted. All of the assaults reported were perpetrated by other inmates. No staff members were implicated in the assaults. I have excerpted the data from Michigan in the table below:
These results are very alarming. The offenders in these facilities are there for very serious offenses, which increases the likelihood of these incidents. However, these facilities must do a better job protecting these children.
You can view the full report here: U.S. Dept. of Justice Survey
Posted on January 20th, 2010 No comments
Last week (Thursday, January 14, 2010), the Oakland Press published an editorial criticizing Oakland County Prosecutor Jessica Cooper for not being tougher on juvenile offenses. Ms. Cooper states that there has been an increase in serious juvenile crimes in the county “mainly because of gang activity in Pontiac and in the southern part of the county.” She adds that the increased serious crimes, budget problems and staffing shortages result in other juvenile cases not getting turned around as quickly.
The article reports that the prosecutor did not follow through on an assault complaint in Waterford Township in which a female teen hockey player struck another player on December 5, 2010. The father of the victim in the matter is apparently upset because the other player is permitted to continue participating in sports. The school district has denied the father’s request that the school take immediate disciplinary action, suspend the player and remove her from all sports teams and athletic events. There was no report that the victim was injured. Yet, the Oakland Press feels the need to “question why Cooper seems to be taking such a casual approach to an apparently serious incident.” The report then goes on to criticize the prosecutor for not communicating her actions on juvenile offenses to the public.
Am I wrong here or is this report overly harsh on the prosecutor? First, I think it would be hard to argue that the prosecutor should give the same priority to a simple assault as she does a more serious crimes like Armed Robbery. A good prosecutor should direct her resources to the most serious crimes first. Second, I am not sure how much she should communicate the rationale behind the use of her prosecutorial discretion. There are ethical rules that prohibit her from making public communications that would have a “substantial likelihood of materially prejudicing an adjudicative proceeding .” MRPC 3.6. Finally, perhaps this issue was better left to the local school board, who did not find the offense serious enough to take action, to discipline the child, rather than as a juvenile delinquency matter.
Posted on January 15th, 2010 No comments
When you have a putative father attempting to file for paternity during the pendency of an adoption, which should come first? This issue was addressed by the Court of Appeals in In re MKK.
The putative father filed a paternity action seeking an order of filiation at or around the same time the child’s maternal aunt and uncle filed a petition to adopt the child. The trial court denied putative father’s motion to stay the adoption proceedings and stayed the paternity action pending the conclusion of the adoption proceedings.
Paternity tests revealed a 99.99% probability he was the natural father. Ultimately, the trial court concluded that it was not in the child’s best interests to grant custody to putative father under MCL 710.39(1). The trial court also concluded that placement with the uncle and aunt was not in the child’s best interests and denied the adoption petition in light of the fact that the parents live nearby in a small community. Both parties appealed.
Naturally, father wanted the paternity action heard first because once an order of filiation was entered and he is considered a parent, termination of his parental rights can generally only be accomplished in cases of neglect or abuse under MCL 712A.19b. See In re LE, 278 Mich App 1, 19, 22; 747 NW2d 883 (2008). It is far easier to terminate parental rights of a putative father under MCL 710.39 in the Adoption code.
Putative father argued that he was denied both procedural and substantive due process by his application of the Adoption Code and decision to stay his paternity action until the completion of the adoption. The Court of Appeals framed its analysis in terms of statutory construction rather than constitutional considerations. The Court acknowledged that adoption proceedings must be completed as quickly as possible and, in general, be given priority on the court’s docket. MCL 710.21a(c) and (d); MCL 710.25(1). However, the Court also noted that under MCL 710.25(2) “an adjournment or continuance of a proceeding under this chapter shall not be granted without a showing of good cause.” Thus, there may be circumstances in which a putative father may be able to present good cause to delay the adoption proceedings. The court wrote, “in cases such as this, where there is no doubt that respondent is the biological father, he has filed a paternity action without unreasonable delay, and there is no direct evidence that he filed the action simply to thwart the adoption proceedings, there is good cause for the court to stay the adoption proceedings and determine whether the putative father is the legal father, with all the attendant rights and responsibilities of that status. Upon a motion to stay adoption proceedings, the trial court must make a good cause determination based on the particular circumstances of the case.”
The Court was very careful to state that they were not creating a bright line test that would lead to a “‘race to the courthouse,’ where a paternity takes precedence over an adoption proceeding merely because the paternity action was filed first.” This gives the court some discretion in the good cause finding.
The Court also reasoned that the general presumption that it is in the child’s best interests to be in the custody of their natural parent or parents allows the court to give priority to a paternity action over an adoption.
You can view or download the opinion here: In re MKK