Posted on January 25th, 2011 No comments
In this case, Father’s rights were terminated under MCL 712A.19b(3)(a)(ii) – desertion for 91 or more days – and MCL 712A.19b(3)(g). The Father lived in Mississippi and had scant contact with the child. Mother had custody of the child and was brought into the court’s jurisdiction based on allegations against Mother. The plan was reunification with Mother. Father was not active in the case because he wished for reunification to proceed with Mother.
At some point, Mother voluntarily terminated her parental rights. DHS failed to provide the father a case service plan, a home visit, a referral for services, and in general made no other efforts at reunification until the mother’s rights were terminated. By failing to look at possible reunification with father, despite his interest, there was a failure to make reasonable efforts toward reunification.
A failure to make reasonable efforts at reunification may prevent petitioner from establishing the statutory grounds for termination. In re Newman, 189 Mich App 61 (1991). The court also found termination on abandonment was premature because Father regularly spoke to and visited the child before the trial court suspended visitation.
Finally, the Court found that the trial court erred in its best interest’s finding. The only evidence presented was 3 supervised visits, which went well. The Court held that the trial court had an insufficient basis to find termination of Father’s parental rights was in the child’s best interests.
The Court remanded for further evaluation and services.
You can view or download the case here: In re Morrow
Posted on December 29th, 2010 No comments
I find this case interesting because it results from an appeal by the L-GAL on behalf of the minor child. The child came into care on a temporary wardship petition due to allegations against mother and father. The children were initially brought into care due to some pretty severe environmental neglect and mental health issues on the part of mother. After the Court assumed jurisdiction, both parents showed evidence of improvement. There was still an issue of the home’s cleanliness , but the parents had made significant improvements.
A supplemental petition was filed under MCL 712A.19b(3)(c)(i), (g) and (j). The trial court determined that the evidence failed to show that the conditions that led to the adjudication continued to exist and that the parents had complied with the parent-agency agreement. The trial court also returned the child to the parents following the denial of the petition to terminate their parental rights.
The Court of Appeals affirmed the trial court finding that there was no clear error in the Court’s determination that a statutory basis was not established. The Court also determined that the court did not abuse its discretion in returning the children home.
At the end of the day, I think this case benefited from the trial court’s findings and the application of the clear error and abuse of discretion standards. This allowed the Court to give a great deal of deference to the trial court’s decision. The condition of the home was still poor despite the improvements made by the parents, but the trial court relied on the substantial improvement made by the parents against the previous condition of the home. The argument that the parents need not completely remedy the circumstances that led to the removal, but that they need only make improvements such that the children could return home was successful in this case.
You can view or download the case here: In re Burnett
Posted on December 21st, 2010 No comments
The Supreme Court affirmed the Court of Appeals and Trial Court’s finding that the child support obligation continues after termination of parental rights unless otherwise ordered.
The facts of the case are fairly straightforward. Father’s parental rights were terminated. At termination, the Trial Court ordered that Respondent father’s child support obligation continue pursuant to the divorce judgment.
Father appealed. The Court of Appeals affirmed. Father filed an application for leave with the Supreme Court, which agreed to take up the case.
In a unanimous decision, the Supreme Court affirmed the Court of Appeals, but employed different reasoning. The Supreme Court held, “the statutory structure indicates the Legislature’s determination that parental rights are distinct from parental obligations, and nothing in the statutory structure indicates that the loss of parental rights automatically results in the loss of parental obligations. Rather, a parental obligation continues “unless a court of competent jurisdiction modifies or terminates the obligation . . . .”” citing MCL 722.3(1).
The opinion, written by Justice Young, initially dispenses with Father’s constitutional claim that his right to due process was violated by continuing his support obligation after his parental rights were terminated. The Court found there is no auhtority “holding that a parent has either a state or federal constitutional entitlement to have his child support obligation suspended when his parental rights have been terminated.”
The opinion does a very nice job outlining the parental rights outlined by statute in MCL 722.1 through 722.6. Parental obligations are outlined in MCL 722.3, including the obligation to support the child. The Court found that because rights under the statute are distinguished from obligations, an order terminating parental rights does not similarly terminate parental responsibilities. The Court points out that MCL 712A.19b clearly states it only provides a mechanism for terminating parental rights. In other words, the terminated parent loses any entitlement to the “custody, control, services and earnings of the minor . . . .” MCL 722.2.
While this opinion leaves the ultimate rule that the duty to continue to pay child support continues after a parent’s parental rights are terminated, it provides us with a much clearer legal analysis.
The case does leave us with some unanswered questions. Does the trial court have the discretion to terminate child support when rights are terminated? Does the termination of parental rights give the state, where the child is a state ward, standing to seek modifications of child support? Where the child is in the custody of DHS, could DHS show cause a parent for non-payment or seek modification? Must the Court re-direct support payments to the state where both parents’ rights are terminated?
I am sure we will see the answers to these questions soon.
You can read or download the opinion here: In re Beck
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
Posted 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
Posted on July 1st, 2010 No comments
After granting leave, ordering briefs and hearing oral argument, the Michigan Supreme Court, in a one paragraph order, vacated the Court of Appeal’s order affirming this case and remanded the case to the trial court for reconsideration of its decision to terminate the respondent’s parental rights in light of In re Mason, 486 Mich ___ (2010) (Docket No. 139795, decided May 26, 2010). Justice Weaver dissented, stating she still believes Mason was wrongly decided and Mason does not apply to the facts in this case.
There is not much explanation here, so I don’t have enough to comment. I expect I will do a long post on incarcerated parent cases after Mason very soon.
For more information on the case, you can read my previous post regarding the published Court of Appeals decision here: In re Hansen.
You can view or download the Supreme Court’s order here: In re Hansen (Supreme Court).
Posted on June 25th, 2010 1 comment
The Supreme Court has granted leave to appeal in In re Beck, so it looks like last month’s published opinion is not the final word on the issue. In that opinion, the Court of Appeals held that a parent’s obligation to pay child support does not end upon an involuntary termination of parental rights. (You can view my post on the Court of Appeals opinion here.) In its order granting leave, the Supreme Court framed the issue presented as follows: “The parties shall address whether a parent whose rights to his children have been involuntarily terminated in a child protective proceeding under the Juvenile Code can nonetheless be ordered to pay child support for those children.” The Court also granted leave to file amicus briefs to the Children’s Law Section and Family Law Section of the State Bar of Michigan and the Friend of the Court Association.
The Court of Appeals decision in In re Beck seemed consistent with the previous line of cases on the subject: Bradley v. Folgum and Evink v. Evink. For this reason, I am a little surprised the Supremes decided to take this one up. Stay tuned.
You can view or download the Supreme Court’s order granting leave here: In re Beck – Granting Leave to Appeal
Posted on June 24th, 2010 No comments
Wouldn’t you know it? The day after I get around to posting In re Mason, the Court of Appeals issues its first reversal based it: In re Lopez (unpublished). In this case, father appealed Judge Dobrich’s (Cass County) termination of his parental rights to his child, Y, pursuant to MCL 712A.19b(3)(g) and (h).
The child came to the attention of DHS on allegations that mother was allowing her children to miss excessive amounts of school. There were also allegations that when she gave birth to one of the children, she tested positive for marijuana and opiates. Father was incarcerated in Indiana at the time the case was initiated and throughout the proceedings. Father’s earliest release date was April 19, 2011.
On April 6, 2009, mother entered a plea and father did not object to jurisdiction. The foster care worker never had any contact with father “due to him being incarcerated out of state.” There was information that the worker communicated with father via mail.
A supplemental petition was filed on October 29, 2009, alleging father “failed to participate in any way in order to be reunited with” Y.
Father had a history of incarceration. He first went to prison in 2000 and was released on parole on October 5, 2007. At that time, mother gave him custody of Y. This lasted until December 2008, when he returned to prison for violating his parole.
At the hearing, father testified that he had not been provided with any services from DHS and he was on the waiting list for programs in the prison.
The worker testified that upon release father would not be able to immediately provide proper care and custody of the child. Father testified he would be able to do so because he had in the past.
Based on these facts, the trial court found a statutory basis to terminate parental rights under (3)(g) and (3)(h). On appeal, Father challenged the trial court’s decision under (3)(h) only. However, the trial court interpreted his argument on the whole could be read as addressing the “reasonable expectation” component of (3)(g) and found the issue was not abandoned.
MCL 712A.19b(3)(h) states:
The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child’s proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.
The Court found the trial court clearly erred in finding a statutory basis based on (3)(h) because father’s earliest release date of April 19, 2011, was only 18 months from October 2009. Thus, the facts did not show that father would be imprisoned for more than 2 years past the date of the petition. The Court acknowledged this was only his earliest release date, but noted that petitioner did not present evidence of the maximum discharge date and failed to meet its burden on that element. The Court noted that under In re Mason incarceration alone was not a basis for termination.
MCL 712A.19b(3)(g) states:
The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.
The Court found the trial court clearly erred in finding a statutory basis under this ground because DHS did not provide father with any services and services were not readily available to him while incarcerated. The Court noted that father was incarcerated in Indiana, but found that nothing in the Supreme Court’s ruling in In re Mason led it to conclude that out-of-state incarceration limits or modifies the statutory obligation of DHS. Thus, it held that DHS failed to fulfill its statutory obligation to adequately involve or evaluate father, by failing to offer him any services and by failing to include him in any service plan.
Having found DHS did not establish a statutory basis under either (3)(h) or (3)(g), the Court reversed and remanded the case.
This case deals primarily with the reasonable efforts to reunify the family DHS must make with an incarcerated parent. The panel in this case is of the opinion that Mason makes no distinction between a parent incarcerated in-state versus out-of-state. The opinion is correct that Mason does not address the efforts required by DHS to a parent incarcerated out-of-state. But, this is probably because that was not the facts in Mason. DHS policy does not allow workers to cross the state line, so I am not sure DHS can provide any services to a parent incarcerated out-of-state, other than under some interstate compact.
You can view or download the case here: In re Lopez
Posted on June 23rd, 2010 No comments
Interesting things happen when you are on vacation. While I was on our family vacation, the Michigan Supreme Court ruled on In re Mason.
This case came before the court on Respondent Father’s appeal of the termination of his parental rights to his two sons J & C. The Court of Appeals affirmed. Respondent Father appealed to the Supreme Court, who accepted leave.
DHS first became involved with the family in April 2006. In October 2006, Respondent Father was incarcerated for drunk driving and later incarcerated for a violation of probation (based on the drunk driving offense) for a previous larceny charge. His earliest release date was July 2009. The children were removed from mother’s care in June 2007, after police found the oldest child wandering outside the home unsupervised. The petition also made father a respondent. In July 2007, Respondent Father and mother pled no contest to the petition.
DHS prepared a PAA requiring Respondent Father and mother to submit to substance abuse and psychological assessments, complete parenting classes, maintain contact with the children, and establish legal sources of incomes and suitable homes. There was no evidence this was ever provided to Respondent Father. Respondent Father was not present for 5 of the review hearings between November 2007 and October 2008. He was not informed of his right to appear by telephone pursuant to MCR 2.004. At a July 2008 hearing, Respondent Father, through counsel requested to be a part of the proceedings, but there was no evidence the trial court addressed the request.
Respondent Father was first permitted to appear by phone at a December 2008 permanency planning hearing, at which time the plan was changed from reunification with mother to termination of both parents’ parental rights. At the time, mother had tested positive for drugs and acknowledged that she did not have suitable housing.
A supplemental petition was subsequently filed, which contained the following allegations pertaining to Respondent Father:
Mr. Mason has been in prison since the boys were removed. His earliest release date is July 2009 and he could be incarcerated until July 2016. During his current incarceration, Mr. Mason has been participating in weekly 12-step meetings and completed a Business Education Technology program. He is waiting to be enrolled in parenting classes.
The Petition sought to terminate parental rights pursuant to:
- MCL 712A.19b(3)(c)(i): More than 182 days have elapsed since disposition and the conditions that brought the children into care continue to exist.
- MCL 712A.19b(3) (g): The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.
- MCL 712A.19b(3) (h) The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child’s proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age. (h)
- MCL 712A.19b(3) (j): There is a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent.
The foster care worker testified that he had never spoken with respondent, that Father had not completed the substance abuse program or received a psychological evaluation. The foster care worker opined that Respondent Father’s earliest release date was July 2009 and it would take him another six months to comply after release. Respondent Father testified that he had employment with his brother upon release and he planned to live with his mother, who had adequate room for him and the boys.
The Supreme Court issued its opinion on May 26, 2010. The majority was comprised of Justices Corrigan, Kelly, Cavanagh, and Young. Justice Corrigan wrote for the majority.
THE MAJORITY OPINION
The majority held that the trial court violated Respondent Father’s right to participate by telephone under MCR 2.004. Under MCR 2.004, the moving party must offer the parent the opportunity to participate in each proceeding (meaning hearing) in a child protective action. Because the trial court did not give Respondent Father an opportunity to appear by telephone at each hearing, the court was precluded from granting the relief requested (termination of parental rights under 2.004(F), which states, “A court may not grant the relief requested by the moving party concerning the minor child if the incarcerated party has not been offered the opportunity to participate in the proceedings, as described in this rule.”
The majority also held DHS failed to facilitate Respondent Father’s access to services and agencies and failed to discuss updating the service plan as required by MCL 712A.13a(8)(a), MCL 712A.18f(3)(d) and MCL 712A.18f(5). In a lengthy footnote, the majority points out that such failures put the state at risk of losing Title IV-E funding. The majority held the trial court and DHS failed to consider that Respondent Father had never been evaluated as a future placement or provided with services.
The majority held incarceration alone is not grounds for termination. The Court notes that an incarcerated parent may provide for a child’s care and is not required to personally care for the child by leaving the child in the care of others. In a footnote, the Court cites a number of opinions in which the Court found the child had proper care and custody while the parent was incarcerated when the child was left with a fit relative.
The majority held that the trial court erred in finding that Respondent father would be incarcerated for two or more years because he was due for parole in less than one year. The majority notes MCL 712A.19b(3)(h) contains a forward-looking language, meaning the parent’s early release date must be two years from the filing of the supplemental petition.
The majority found the trial court clearly erred in concluding that it would take Respondent Father at least 6 months after release before he would be ready to care from his children, based solely on the foster care worker’s testimony because he had not evaluated Respondent Father’s parenting skills or facilitated his access to services.
The majority also found that the trial court should have evaluated whether Respondent Father could have provided proper care and custody by granting legal custody to relatives.
In addition, the Court held that it was improper to terminate under MCL 712A.19b(c)(i) or (g) because the trial court failed to address whether Respondent Father could provide proper care for his children in the future either personally or though his relatives.
The Court also found that termination was improper under MCL 712A.19b(3)(j) because there was no evidence the children would be harmed if they lived with Respondent Father upon release.
The Court did not reach the issue of whether Respondent Father’s due process rights were violated.
The Court reversed the Court of Appeal’s affirmation of the circuit court’s order terminating parental rights and remanded the case.
JUSTICES MARKMAN AND HATHAWAY’S DISSENT
Markman and Hathaway make the following points:
- Respondent’s inability to comply with the PAA or participate in services was of his own making. (i.e. he was not incarcerated arbitrarily, but for his own violations of the law).
- There was no evidence that Respondent Father did anything to provide for his children while incarcerated and living with their unfit mother.
- The dissenters believe under MCL 712A.19b(3)(h), the court should be permitted to consider the entire time of Respondent’s incarceration and not simply look forward from the date the supplemental is filed, which, they argue ignores the period of incarceration before the petition was filed.
- The dissent stresses the importance of permanence for the children.
- Respondent Father was not present at the hearings due to his incarceration, but he always had counsel present. This is enough for participation in the hearings. This distinguishes the case from Rood, in which the father did not have appointed counsel.
- Contrary to the Majority’s findings, the dissenters point out that Respondent’s counsel did notify him that he could appear by speaker phone in a letter and Respondent did not initially respond.
JUSTICE WEAVER’S DISSENT
Justice Weaver adopts most of Markman & Hathaway’s dissent. She goes further to criticize the majority for making arguments for Respondent Father that were not raised at the trial court and creating issues on appeal. Justice Weaver says the result of the majority’s opinion is that these children will be denied permanence.
You can view or download the case here: In re Mason.
You can view or download the Court of Appeals decision here: In re Mason (CoA)
Posted on April 15th, 2010 No comments
The topic of this month’s OCBA Juvenile Brown Bag Lecture was appeals. We were fortunate enough to have Michigan Court of Appeals Judge Elizabeth Gleicher speak to our group. The seminar was very well-attended and informative. I was really impressed by Judge Gleicher’s grasp of this area of the law.
For those of us who follow this area of the law, Judge Gleicher’s work is very familiar. Her opinions in this area are very well-reasoned, but what I find most impressive is the impact she has had on the rest of the bench. In the short time she has been on the bench (she was appointed in 2007), there has been a shift in both the way the Court of Appeals views child protection cases and a renewed emphasis on these cases. The Court has published more opinions in this area than ever. This has even caused the Michigan Supreme Court to take up more termination of parental rights cases.
Here are a few of quick notes on Judge Gleicher’s seminar:
- It is important to preserve issues for appeal. She emphasized the importance of making objections and filing motions to make a clear record. As a trial attorney for 27 years, she understands how difficult this can be. She explained that unpreserved issues require a great deal analysis to even reach the substantive issue than an issue preserved at the trial court level. She also discussed the public policy of requiring issue preservation to create an incentive for parties to seek a remedy from the trial court first.
- The judge discussed hot topics in the Court of Appeals. The Court is looking at the ability of incarcerated parents to plan for their children by finding proper care and custody with family member or others while they are incarcerated. The Court is also looking at parenting time for children in care as a reasonable effort toward reunification.
- She also addressed the importance of appealing jurisdictional adjudications because the right to appeal jurisdiction is lost if an appeal is not timely filed. Raising the issue of jurisdiction after parental rights are terminated on a supplemental petition is considered a collateral attack on the termination and is not permissible. Thus, trial attorneys should advise their clients that they have an automatic appeal as of right at the jurisdictional phase.