In re D.M. KleylaPosted on October 11th, 2010 No comments
The child initially came to the attention of DHS on allegations of neglect on the part of mother. The initial petition seeking court jurisdiction alleged, inter alia, that the Respondent Father was unable to care properly for the child due to his current incarceration, legal troubles, lack of employment, unstable housing, lack of transportation and lack of consistent progress even though many services were intact for support. In early November, 2007 a pretrial hearing was conducted and the CPS worker testified the father was in Jackson Correctional Facility awaiting a parole board violation hearing. The petition was authorized and both parents were appointed counsel.
On February 14, 2008, the trial court took jurisdiction based on the mother’s plea to certain allegations in the petition. The father remained incarcerated and no arrangements were made for his participation in the hearing. Respondent’s counsel indicated his client knew of the hearing and was going to be incarcerated for the near to long-term future. The CPS worker indicated he would develop a case service plan for the mother. However, no one mentioned a plan for the father. In addition, the respondent’s counsel did not even propose that respondent participate in future hearings by telephone.
At the next two statutory review hearings, no arrangements were made for the father to participate by phone. The DHS worker indicated that no service plan was developed for the father “because he’s still incarcerated at this time.”
At the third review hearing, the court informed the respondent (who participated by phone) that “you understand . . . that we are not able to include you in any sort of plan, service plan, at this time because you are still incarcerated[,]”. The father indicated that his outdate was October 3, 2009. Yet at the September 2008 hearing (when the father again participated by phone) virtually no mention was made of him. During the temporary jurisdiction phase, the father did not participate at the adjudication, disposition and the first three review hearings.
In November 2008, DHS filed a supplemental petition. At this time, Mother voluntarily relinquished her parental rights.
The trial court found that both MCL 712A.19(b)(3)(c)(i) and MCL 712A.19(b)(3)(h) had been proven and that it was in the child’s best interests to terminate his father’s rights. First, the Court of Appeals indicated that because the prosecutor, court and respondent’s counsel failed to adhere to the procedures in MCR 2.004(B) and (C), Respondent was deprived of the opportunity to participate in all proceedings conducted from November 2007 to July 2008. This, the Court of Appeals concluded, required a reversal of the order terminating the father’s parental rights.
Second, the Court held that DHS deliberately withheld service from the respondent with the approval of the trial court. They focused on the mother and, in doing so, disregarded the father’s statutory rights. Thus, like In re Mason, ___ Mich ___ (Docket #139795; decided 5/26/2010), the Court reversed and remanded the matter for DHS to provide services which they previously neglected to supply the father.
Finally, the Court indicated that the trial court proceeded to consider termination of the father’s rights based on different circumstances than those admitted by the mother, those proofs should have been established by legally admissible evidence. The evidence introduced consisted largely of inadmissible hearsay including evidence that focused on an allegation the father had sexually abused his niece. The father was never charged with this alleged act and he vehemently denied it.
You can view or download the case here: In re D.M. Kleyla
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