Posted on December 15th, 2010 No comments
Well, well, well. It appears I have caused a little bit of a stir among those who regularly practice in the area of child protection law.
On December 18, 2009, the Trial Court terminated mother’s parental rights to her one year old daughter. Her parental rights to five other children were previously terminated in 2004, and her parental rights to a sixth child were terminated in 2006. This most recent termination was her seventh. Mother had made great strides since the most recent termination. I was appointed to represent Mother on appeal.
On December 7, 2010, the Court of Appeals issued an opinion reversing the trial court. The Court wrote:
“Reviewing the evidence as a whole, we harbor serious doubts that the statutory grounds for termination were established by clear and convincing evidence as to (b)(ii), (g), and (j). A trial court may terminate parental rights pursuant to MCL 712A.19b(3)(i) where:
Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful.
Assuming, without deciding, that the above statutory basis was clearly and convincingly established, we nevertheless reverse because clear and convincing evidence did not establish that termination was in the child’s best interests.
What has most concerned about this opinion is the Court of Appeal’s application of the clear and convincing evidence standard to the best interest determination. Both MCR 3.977 and MCL 712A.19b(5) are silent as to the burden of proof to be applied at best interests. This case is significant because the Court of Appeals has interpreted the statute and the Court Rule to apply the clear and convincing evidence standard as opposed to preponderance of the evidence. For those you that follow this blog, you know I have commented that there is some ambiguity in the statute and court rule as to the applicable burden of proof (see here).
What I think is the most important thing to take away from this case is that mother had made great strides to correct the conditions that led to the previous termination. The Court noted “[mother] is [not] the same person that she was when her rights were terminated to the other children some years prior, and none of the prosecution’s witnesses testified that respondent’s parental rights should be terminated or that termination would be in the child’s best interests.” Regardless of the burden of proof, Mother was in a position to be given a chance to reunify with her children.
Because I am the attorney on the case, I hesitate to comment too much on the matter until it reaches an ultimate resolution. I promise to post more regarding the burden of proof at best interests in the future.
You can download or view the case here: In re Thomas