Amendments to the Safe Delivery of Newborns Act Moving

I just received word that Senate Bills 1118-1120 have moved from Senate Committee to the full Senate for a vote.  These bills would amend the Safe Delivery of Newborns Act to modify the provisions under which the family court may terminate parental rights to a surrendered newborn.  Specifically, they would  eliminate the court’s ability to terminate parental rights when a parent petitions for custody within 28 days after surrendering the newborn.  Instead, the court could order the child placing agency to petition for jurisdiction under the juvenile code.

I have been unable to find much on the internet regarding these bills and I was not able to find any case law that might serve as a call to action to modify the Act.  The legislation does have bipartisan support.  The policy behind the legislation may be to create a bigger incentive parents to safely bring newborn infants to an emergency service provider by eliminating the risk of a termination of parental rights if they have  a change of heart and seek custody.  The bill does not preclude the filing of a supplemental petition to terminate parental rights if services are not effective.

Under the current law,  a parent may surrender a newborn infant to an emergency service provider, which must take temporary protective custody of the child. If the surrendering parent wants custody of the newborn, he or she must file a petition with the family court within 28 days. If the parent does not do so, he or she is presumed to have knowingly released his or her parental rights to the newborn, and a child placing agency immediately must file a petition with the court to determine whether the court will enter an order terminating the rights of the surrendering parent.

If the court finds that the surrendering parent has knowingly released his or her parental rights and that reasonable efforts were made to locate the nonsurrendering parent, the court must enter an order terminating the parental rights of the surrendering parent and the nonsurrendering parent.

If a custody action is filed, the court must determine custody of the newborn based on his or her best interest, considering the factors set forth in MCL 712.14. Based on these findings, under MCL 712.15 the court may issue an order that does one of the following:

• Grants legal and/or physical custody of the newborn to the parent, and retains or relinquishes jurisdiction.
• Determines that the best interests of the newborn are not served by granting custody to the petitioner parent, and terminates his or her parental rights and gives a child placing agency custody and care of the newborn.
• Dismisses the petition.

Finally, under MCL 712.19b(3)(a)(iii), the Court may terminate parental rights if the parent voluntarily surrendered the child to an emergency service provider under the Safe Delivery of Newborns Law and did not petition the court to regain custody within 28 days.

Under Senate Bill 1118, a court would not be required to terminate parental rights of the surrendering and nonsurrendering parent if a custody action has been filed within 28 days pursuant to MCL 712.10.

Under Senate Bill 1119, following a custody hearing, instead of terminating the petitioner’s parental rights and giving a child placing agency care and custody, bill would allow the court to order a child placing agency to petition the court for jurisdiction under the juvenile code, if the court found that granting custody to the parent would not serve the newborn’s best interests.

Senate Bill 1120 would eliminate surrender of a child under the Safe Delivery of Newborns Act as a ground for termination under 712.19b.  However, .

ICWA Article in this Month’s Michigan Bar Journal

This month’s Michigan Bar Journal is dedicated to American Indian Law.  It features an article on Indian Children and Termination of Parental Rights.  The article focuses on the recent Supreme Court opinion in In re JL, which was earlier addressed on this blog (See In re JL).

One interesting fact I picked up in the article is that In re JL was the Michigan Supreme Court’s “first major foray into the Indian Child Welfare Act (ICWA).”  Frankly, I had not realized that the Supreme Court had not addressed an ICWA issue in the past.

The article does an excellent job summarizing  the case, including listing the holdings of the case as bullet points.  I absolutely love it when an article makes a complex case easy to understand and this article does just that.  I highly recommend you take the time to read it.  You can view or download the article here:  Indian Children and Termination of Parental Rights: Michigan Supreme Court Takes a Step in the Right Direction in In Re Lee by Angel Sorrells, Cami Fraser, Thomas Myers, and Aaron Allen

Sexting

Yesterday, I moderated the Juvenile Brown Bag lecture on the topic of  ‘sexting.’  I have been working on a blog entry on this subject since December, but yesterday’s lecture inspired me to finish and post it.

With the increased incidents of “sexting” among teens, it seems appropriate to address the issue and the juvenile delinquency ramifications of this activity.  Wikipedia includes a definition of “sexting” (a combination of sex and texting) as the act of sending sexually explicit messages or photos electronically, primarily between cell phones.  Roughly 20 percent of teens admit to participating in “sexting,” according to a nationwide survey (pdf) by the National Campaign to Support Teen and Unplanned Pregnancy.

There have been several incidents of adults and juveniles being charged with felonies for sexting over the past year. Last year, a 14-year-old girl in Michigan was charged with felonies for sending nude images of herself to classmates.

Michelle Simonson, 28, of Oxford was to go on trial, charged with distributing sexually explicit material to a minor and enticing a minor for immoral purposes and had faced up to four years in prison. But in a plea agreement reached 10/30/2009, she agreed to enter guilty pleas in exchange for three months in the Oakland County jail. (You can read the Detroit Free Press Article here).  Police allege Simonson, a teacher at Sashabaw Middle School, sent the 14-year-old boy, a student at the school, a semi-nude picture of herself and about 50 texts over the course of the year.  His foster parents discovered the texts and turned them over to police.

Brandon Figurski, a 20 year old assistant swim coach at Oxford High School, was charged with child sexually abusive activity, using a computer to commit a crime and communicating with another to commit a crime for sending sexually explicit texts to two 15-year-old girls. (You can read the full story on MLive here).

This month, a man accused of sending sexually explicit messages to a 14-year-old girl after visiting her home to set up her laptop computer was charged with one count of using a computer to communicate with another person to commit a crime, a 4-year felony, and one count of attempting to distribute sexually explicit material to children, a 2-year misdemeanor.

Clearly, sexting is pervasive in youth culture in America and law enforcement has taken notice.  So, what are the legal ramifications to children caught sending and receiving these messages?

The law

Under Michigan law, sexting can be a violation of MCL 750.145c, which prohibits the production (a 20 year felony), distribution (a 7 year felony) or possession (a 4 year felony) of child sexually abusive material.  “Child sexually abusive material” is defined as “any depiction, whether made or produced by electronic, mechanical, or other means . . . of a child (a person less than 18 year old) or appears to include a child engaging in [sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity]. ” See MCL 750.145c(b),(h), (m).  The statute includes detailed definitions of each of the prohibited sex acts.

A person that sends a sexting message may also be charged with use of the computer or internet in the commission a sex offense under MCL 750.145d.  Most cell phones today are so called smart phones, which contain computer processors and are wirelessly connected to the internet through the cell provider’s network.  These phones fall within the broad definition of a computer under the statute.

Who can be charged?

To illustrate who can be charged in a sexting case, consider the following scenario: A 15 year old girl takes a nude photograph of herself with her cell phone and sends it to her boyfriend.  He then sends it to three of his friends, who each send it to 10 of their closest friends (for those keeping track, this photograph is now in the hands of 35 people – potentially within minutes of taking the picture).  Who can be charged?  The answer:  everyone.

• The 15 year old girl can be charged with production and distribution of child sexually abusive material;
• Her boyfriend can be charged with distribution and posession;
• His friends can be charged with distribution and possession; and
• Their friends can be charged with possession.

This is a perfectly plausible and all too typical scenario.

The Sex Offender Registry

Another consideration in any sexting case is the requirements under the Sex Offender Registry Act.  MCL 28.721 et seq.  An adjudication  triggers the registration requirements for the non-public registry for 25 years.  A juvenile may also be required to disclose the adjudication on any college or financial aid applications.  As always, if the juvenile is placed on the consent calendar, there is no adjudication and the file is not abstractable to any law enforcement or other agency.

Here are links to the statutes found in this article:

Child Sexually abusive activity: MCL 750.145c

Use of a computer in the commission of a sexual offense: MCL 750.145d

Sex Offender Registry Act: MCL 28.721

People v. Perreault – Searching a vehicle on school grounds

This is a published opinion that was issued last month (January 19, 2010).  I did not report on it earlier because it was classified as a criminal case on the e-journal, so I missed it.  The young defendant in this case was charged as an adult, but the issue in the case dealt with a search on school grounds, which makes it appropriate for this blog.

This case arose out of the search of a student’s vehicle in the school parking lot based on an tip received from an anonymous tip hotline.  The defendant was simply described as a male Caucasian junior who sells marijuana “from school, his truck, and East Bade [sic] Park in Traverse city.”  A week after receiving the tip, the school’s assistant principal searched the vehicle, while being observed by the school’s liaison officer and some other school officials.  The defendant was present for the search, but did not consent to it.  The assistant principal discovered a bag of marijuana behind a seat in the vehicle and the defendant was arrested.

Prior to trial, the defendant filed a motion to suppress the evidence as fruit of an unconstitutional search.  The trial court denied the motion, finding that the anonymous tip alone was sufficient to constitute reasonable suspicion, given the level of detail in the tip.

It is important to note the difference between a search by a school official and a police officer.  The police may search a motor vehicle without a warrant if they have probable cause to believe that evidence of a crime may be found therein. People v Kazmierczak, 461 Mich 411, 418-419; 605 NW2d 667 (2000). However, school officials may search a student’s person or property on school premises on the lesser standard of reasonable suspicion. See New Jersey v TLO, 469 US 325, 341-342; 105 S Ct 733; 83 L Ed 2d 720 (1985).

The Court analyzed the search under the lower “reasonable suspicion” standard and did not express an opinion regarding whether the presence of the officer raised the standard.  Reasonable suspicion requires “articulable reasons” and “a particularized and objective basis for suspecting the particular person . . . of criminal activity.” United States v Cortez, 449 US 411, 417-418; 101 S Ct 690; 66 L Ed 2d 621 (1981).  In “a case involving an anonymous tipster,” whether reasonable suspicion exists “must be tested under the totality of the circumstances with a view to the question whether the tip carries with it sufficient indicia of reliability to support a reasonable suspicion of criminal activity.” People v Faucett, 442 Mich 153, 169; 499 NW2d 764 (1993) (emphasis in original), citing Alabama v White, 496 US 325;110 S Ct 2412; 110 L Ed 2d 301 (1990). An anonymous tip can provide reasonable suspicion if it is considered along with a “totality of circumstances” that show the tip to be reliable. But alone, without any “‘indicia of reliability’” or “‘means to test the informant’s knowledge or credibility’” an anonymous tip is generally insufficient. People v Horton, 283 Mich App 105, 113-114; 767 NW2d 672 (2009), citing and quoting Florida v J L, 529 US 266, 271-272, 274; 120 S Ct 1375; 146 L Ed 2d 254 (2000).

In this case, the anonymous tip was the only basis for the search.  The Court held the tip alone could not be viewed under the totality of the circumstances because there were no other circumstances outside the tip.  The Court also held that the tip itself was vague.  Thus, the anonymous tip alone was insufficient to support a reasonable suspicion.  The Court reversed and ordered the evidence suppressed.

Judge O’Connell dissented indicating that the tip, considered in its entirety, was sufficiently detailed to provide indicia of reliability. He did not share the majority’s view that “corroborating circumstances” outside of the tip must be present for an anonymous tip to be considered reliable.

This case is instructive for any search on school premises.

You can view or download the case here:

• People v. Perreault (majority)
• People v. Perreault (Dissent)

Scholarships for Foster Children

The Casey Family Scholars Program will award approximately 75 new scholarships for undergraduate study and career/technical training at accredited institutions and programs.

Applicants must…

1. Have been in foster care for one consecutive year at the time of their 18th birthday OR have been adopted or taken into legal guardianship out of foster care or upon the death of their parents after their 16th birthday OR have lost both parents to death before the age of 18 and not been subsequently adopted or taken into legal guardianship.

2.  Be enrolled in or accepted into an accredited post-secondary program at the undergraduate level (university, college, community college or vocational/technical institute.)

3. Be under the age of 25 on March 31, 2010.

4. Have been in foster care or orphaned while living in the United States. U.S. citizenship is not required.

The online application deadline is March 31, 2010 at midnight.  I have attached a flyer (scholarships for foster youth).  More information, including the application, can be obtained at the OFA Scholarships for Foster Youth Website.   If you are the GAL for any qualifying foster child, please encourage them to apply.

Finding Families for Foster Children

The New York Times featured an article this weekend about programs that aim to place older, hard-to-adopt children in adoptive placements.  The article features an agency in St. Louis that hires a former police detective to track down long-lost relatives of teenagers languishing in foster care.  The idea is to look for suitable relatives that would be willing to serve as adoptive caregivers for children.  In many cases the relatives of parents that abuse and neglect their children and consequently have their parental rights terminated may not know where the children are, or even that they exist.  The agency finds that,  “lost relatives are a largely untapped resource for adoption.”  The St. Louis agency is funded by a grant from Wendy’s Wonderful Kids, created by the founder of the fast food chain.

The article also acknowledges a nonprofit in Washington State that uses computer databases to locate relatives of children in foster care.

The article addresses the hardships faced by older children in foster care, who are typically some of the most difficult to find adoptive placements.  These children face rejection and disappointments from being bounced around to different foster homes, the isolation and loneliness of living in a group home and a number of other difficulties.  All of these can make it difficult to transition into a permanent adoptive home.

In Michigan, agencies such as Bethany Christian Services and Spaulding for children, who receives grants from the Dave Thomas Foundation,  work to place older and special needs children in adoptive homes.

It is nice to see this issue getting some attention.  You can read the New York Times Article here:  A Determined Quest to Bring Adoptive Ties to Foster Teenagers.