New Legislation: 2010 PA 7 & 2010 PA 12

Two Bills recently signed into law would amend MCL 712A.19b(3)(m) and MCL 722.638 to permit a court to terminate parental rights only if parental rights were voluntarily terminated in cases that involved abandonment of a young child; criminal sexual conduct; severe physical abuse; life-threatening injury; murder; voluntary manslaughter; or other specified types of abuse.  These laws will take effect September

Under current law, MCL 712A.19b(3)(m) permits a court to terminate a parent’s parental rights to a child if the parent voluntarily terminated rights to another child after abuse or neglect proceedings were initiated.

Currently, MCL 722.638 requires the Department of Human Services (DHS) to petition the family court to terminate parental rights to a child if there is a basis to terminate parental rights under MCL 712A.19b(3)(m). The amended statute will only require DHS to file a petition to terminate parental rights under the circumstances outlined in the amended MCL 712A.19b(3)(m).

MCL 712A.19b(3)(m), as of September 4, 2010, will read:

(3) The court may terminate a parent’s parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:

***

(m) The parent’s rights to another child were voluntarily terminated following the initiation of proceedings under section 2(b) of this chapter or a similar law of another state and the proceeding involved abuse that included 1 or more of the following:

(i) Abandonment of a young child.

(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.

(iii) Battering, torture, or other severe physical abuse.

(iv) Loss or serious impairment of an organ or limb.

(v) Life-threatening injury.

(vi) Murder or attempted murder.

(vii) Voluntary manslaughter.

(viii) Aiding and abetting, attempting to commit, conspiring to commit, or soliciting murder or voluntary manslaughter.

This change is a much-needed move in the right direction.

Links to the Public acts: 2010 PA 7; 2010 PA 12

In Re Beck: Child Support Following Involuntary Termination

In a published opinion, the court of appeals affirmed the trial court order continuing child support after involuntary termination.  The Court reasoned that there is no distinction between an involuntary termination and a voluntary termination.

I will be posting more about this case later.  This was just such a big development I wanted to get it posted as soon as possible.

You can view or download the case here: In re Beck

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

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.

Alternatives to Termination of Parental Rights

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

In re Ignelzi – Due Process

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

Legislative Update

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.

In re HRC et al. – in camera interviews

The Court of Appeals issued another published opinion.  The case involved whether the trial court may conduct unrecorded in camera interviews with minor children to determine best interests.  The CoA held that a trial court may not conduct in camera interviews with minor children in a juvenile proceeding.

In this case, following a hearing on a petition to terminate parental rights, which contained testimony regarding both statutory basis for termination and best interests, the trial court indicated it was not prepared to make a best interests determination.  The trial court conducted in camera interviews with all of the children.  Subequently, the trial court found termination was in the children’s best interests without making reference to the types of questions asked or the information disclosed by the children.

An in camera interview is an ex parte communication off the record in a judge’s chambers and in the absence of the other interested parties and their attorneys.  Generally, these ex parte communications are not permitted except as provided by law.  Michigan Code of Judicial Conduct, Cannon 2.   The Court of Appeals ruled there is no statutory provision or other caselaw that permits a trial court in a juvenile proceeding to conduct an in camera interview.    The Court distinguished juvenile proceedings from custody proceedings under the Child Custody act, which does contain a provision for in camera interviews with children for a very limited purpose. MCL 722.21.  Without an analogous provision in juvenile law, such interviews are impermissible.

The Court also found that the use of unrecorded in camera interviews in termination proceedings violates parents’ due process rights.  Due process requires fundamental fairness, which will involve consideration of the private interest at stake, the risk of erroneous deprivation of such interest through the procedures used, the probable value of additional or substitute procedures and the state or government interest, including the function involved and the fiscal or administrative burdens imposed by substitute procedures. In re Brock, 442 Mich 101, 111; 499 NW2d 752 (1993).   The Court balanced the parent’s fundamental liberty interest in the care and custody of his or her child and the threat of permanently losing that interest against the state’s interest in the welfare of the child. The Court also considered the risks of an erroneous deprivation of parental rights given the nature of the in camera interview in light of the low probative value of the in camera procedure and the risk of unduly influencing a judge’s decision.  The Court ruled that the use of an unrecorded and off the record in camera interview in the context of a juvenile proceeding, for whatever purpose, constitutes a violation of parents’ fundamental due process rights.

The Court remanded the case to a different trial court judge to make findings as to each child’s best interests before deciding to terminate parental rights.

You can view or download the case here: In re HRC, et al

In re Mason – Application for leave to MSC

As I reported on Friday, the Michigan Supreme Court has agreed to take up In re Mason, a termination of parental rights case.  John Bologna is the attorney for Respondent Father.  I wrote to him on Friday asking for a copy of his application for leave to appeal.  He kindly emailed me a copy, which I have made available for download below.  Today, my husband bumped into John at the Oakland County Courthouse.  My husband tells me that John is obviously pleased with the way the Michigan Supreme Court has framed the issues and he sees many similarities between this case and In re Rood.   It appears the trend in the Court is to look very closely at insuring that reasonable efforts are made.   I think the issues we will be seeing addressed are what reasonable efforts must be made for non-custodial and incarcerated parents before terminating their parental rights.

What do you think?

You can view or download the Application for Leave to Appeal here: In re Mason (Application for Leave)

The document is in Microsoft Word (.doc) format.  If you have trouble downloading it, just wait until this evening when I will have my husband convert the filed to Adobe Acrobat (.pdf) format.