In re Pugh

In this recent Court of Appeals decision, the court reversed a trial court’s findings under MCL 712A.19b(3)(a)(ii), which states:

(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:

(a) The child has been deserted under any of the following circumstances:

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(ii) The child’s parent has deserted the child for 91 or more days and has not sought custody of the child during that period.

In this case, Respondent Mother had no contact with anyone in the foster care agency and failed to participate in services from March 3, 2008, through mid-June 2008, while her children were placed in foster care. She also failed to visit the children after February 29, 2008.  Therefore, there was a period of just over 91 days when Respondent Mother made no efforts toward reunification and had no contact with the children.  However, the court held subsection (3)(a)(ii) requires more than just a finding that a respondent deserted the child for 91 or more days. It also requires a finding that the respondent failed to seek custody of the child during that 91-day period of desertion. In this case, Respondent’s attorney continued to represent her, and there was no indication that respondent intended to stop pursuing reunification.  The Court of Appeals concluded that the trial court clearly erred in basing termination of respondent’s parental rights based on § 19b(3)(a)(ii).  However, the court also found that such error was harmless because the trial court properly based termination of respondent’s parental rights to the children on other statutory grounds.

This case highlights the important role that attorneys for the respondents play at review hearings.  In this case, Respondent Mother disappeared for a period of time while the child was in foster care.  The attorney continued to appear and continued to argue on behalf of his or her client that she desired to reunify with the children.  This case indicates that the representation of the attorney in an effort to reunify can be attributed to the parent.

For a variety of reasons, a parent sometimes disappears while a child is in foster care as a court ward.  In this case, it appears Respondent Mother had serious issues with drug addiction, which may have accounted for her absence.  I have also seen cases in which the respondent’s absence is due to mental health issues.  This case illustrates why, in these circumstances, the respondent’s attorney should continue to assert his or her client’s desire to reunify with the child (if that is in fact the case) and continue to strongly advocate for the client at post-dispositional hearings.

Click here to view the case: In re Pugh