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

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: Mi Supreme Court takes up termination case

If you haven’t been able to tell from the activity on this site over the past year, 2009 has been a banner year in the area  of child protection law.  From the looks of things, this trend will continue into 2010.  Yesterday, the Michigan Supreme Court agreed to take up a termination of parental rights case, In re Mason.

The case involves the termination of Respondent father’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), (h), and (j).  The Court of Appeals opinion was issued September 15, 2009.   The opinion is only three paragraphs long and affirms the termination of Respondent Father’s parental rights pursuant to MCL 712A.19b(3)(g), (h), and (j).  It held termination under MCL 712A.19b(3)(c)(i) was harmless error – probably because the three other statutory grounds for termination were affirmed.

The opinion indicates that Respondent Father was jail when the children first came into care, but was later sentenced to 3 to 10 years in prison.  The CoA affirmed the trial court’s finding that while his earliest release date was July 2009, there was no evidence that he was likely to be paroled at that time and even if he were, he would require at least six months to demonstrate a stable lifestyle.  The CoA also rejected his argument that the trial court erred in failing to hold a separate best interest hearing, holding that on a supplemental petition, the court need only hold a single hearing at which both statutory grounds for termination and best interests are considered. The CoA cited  MCR 3.977(G)(1)(b) and (3) is support of its ruling on this issue.

The Michigan Supreme Court’s Order granted oral argument on three issues and framed them as follows: whether the trial court clearly erred in terminating the respondent-father’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), (h), and (j),

• where the Department of Human Services failed to maintain contact with the respondent-father throughout the proceedings,
• failed to ensure his appearance at all court hearings (see MCR 2.004), and;
• failed to provide him with an opportunity to comply with a parent-agency agreement tailored to his circumstances, citing In re Rood.

There is no mention of the issue regarding the failure to hold a separate best interests hearing.  The  case originated in Macomb County.  John Bologna is the attorney for Respondent Father.  He handles a number of appeals from Macomb County and does a fair amount of work in Oakland.  I will ask him about the case if I see him in the courthouse and keep you posted.

You can view or download the CoA Opinion here:  In re Mason (CoA)

You can view or download the MSC order here:  In re Mason (MSC Order)

In re Williams – Right to Counsel

The initial opinion in this case was issued on 9/29/2009.  On the Court’s own motion, the Court vacated its prior opinion and issued an amended opinion and concurrence, while granting a request for publication.  The case involved the termination of a mother and father’s parental rights on a supplemental petition.  Termination with respect to mother was affirmed, but was reversed with respect to father due to the trial court’s failure to provide him with counsel.

At the termination hearing, father orally requested counsel on the record.  He went through an agency “screening” process to determine if he was entitled to appointed counsel. The screening process imputed income earned by the entire household, including his parents, to him.  As a result, they determined he was not indigent and denied him counsel.  The CoA held the trial court cannot “deny a respondent appointed counsel by imputing to the respondent income earned by people who bear no legal responsibility to contribute to respondent’s legal expenses.  Mere cohabitants, even if parents of an adult respondent, possess no obligation to  pay respondent’s attorney fees, and a court may not prohibit a respondent from exercising the right to appointed counsel based on a calculation that imputes income from resources unavailable to the respondent.”

The Court went on to note that DHS argued father’s lack of “independent housing” and his insufficient income supplied grounds for terminating his parental rights.  The Court held it was “fundamentally unfair to deny appointed counsel because a respondent does not qualify as indigent, while at the same time invoking respondent’s indigence as a ground for terminating his parental rights.”  Thus, the trial court could not have it both ways.  It could not find he had sufficient resources for counsel, but was indigent for the purposes of providing for his children.

The failure to notify father of his right to counsel violated MCL 712A.17c(4) and the error was not harmless.  The Court of Appeals remanded the case for appointment of counsel and a new trial.

In a concurring opinion, Judge Gleicher took the opinion one step further and argued that father was entitled to counsel during the adjudication phase also.

As I have noted numerous times in this blog, when courts’ budgets are strained, court appointed counsel is an easy place to make cuts.  Some courts are attempting to “redefine” how counsel is appointed in order to save funds.  As this opinion makes clear, this can end up being more costly as this matter may have to be tried again.  You cannot deny a person their due process rights to save a buck.

To download or view the opinions, click here: In re Williams (Majority); In re Williams (concurring)

In Re Mitchell – Housing and other issues

First, a little procedural history: In an unpublished decision on March 24, 2009, the Court of Appeals affirmed the termination of father’s parental rights in a 2-1 opinion with Judges Jansen and Borrello in the majority and Judge Stephens dissenting.  The matter was presented to the Supreme Court on leave to appeal.  In an order dated October 23, 2009, the Supreme Court reversed the Court of Appeals in lieu of granting leave to appeal.

Here are the facts: The children initially came into care because of Father’s drinking problem, the fact that he allowed a known sex offender to reside in the home with the family, the dirty and unkempt nature of the home and his neglect of the children.

At the time of the termination, Father had remained sober for over a year, the sex offender no longer resided with the family and he had exercised supervised parenting time.  Father had moved in with his sister and brother-in-law, who lived more than 30 miles from where he worked. The move was the result of Father’ s financial difficulties and his inability to make the mortgage payments.   Father had complied with all of the requirements and services offered, with the exception of having his own home for the children.

Judges Jansen and Borrello ruled that the facts justified a statutory basis for termination under MCL 712A.19b(3)(c)(i), in that Father’s housing continued to be inadequate. They also held that termination was proper under MCL 712.19b(3)(g), in as much as he had failed to provide proper care and custody and he was unlikely to do so within a reasonable time.

In a very well-written dissent, Judge Stephens wrote the following:

. . . the court improperly focused on the fact that respondent failed to meet the mortgage obligations on his former home. That home was originally purchased with the children’s mother, from whom respondent was later estranged.  The decision to purchase the home was based upon the belief that both parents would make economic contributions. Therefore, when the couple separated, the home was the subject of an orderly short sale. This is woefully common in Michigan in 2009. By partially basing its decision on this consideration, the court improperly concluded that this unfortunate, though common, occurrence is an indication that an individual is an unfit parent.

Similarly, the court was also critical of respondent’s choice to work at Wal-Mart rather than seek employment as a chemical engineer. While one may speculate as to whether there are employment opportunities for inexperienced chemical engineers, the sole focus of the court should be whether respondent has any legal source of income, whether that income is adequate to care for the children and whether it will likely be used for that purpose. The fact that respondent could have potentially earned a greater income does not automatically indicate that his income was inadequate.

Judge Stephens also addressed the trial court’s criticism of his choice to live with his sister and brother-in-law.  Father testified that he relied on his family, church and sobriety groups to maintain his sobriety.  Judge Stephens noted the fact that Father’s choice to move in with relatives brought him closer to that support system and there was no evidence that the home was not safe, clean or spacious enough for the children.  Father had even crafted a detailed plan for the children at that home.  Judge Stephens cites the U.S. Supreme Court case Moore v East Cleveland, 431 US 494, 505; 97 S Ct 1932; 52 L ED 2d 531 (1977):

“Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home . . . Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life.”

On application for leave to appeal, the Supreme Court reversed the opinion of Judges Jansen and Borrello and adopted the reasons stated in Judge Stephens’ dissenting opinion.

This opinion reflects a sign of the times here in Michigan.  With the home foreclosure rate and short sales sky high in Michigan, Father in this case found himself in an all too familiar circumstance.  Certainly, we cannot terminate the rights of every parent that loses their home to foreclosure or short sale.  As Judge Stephens points out, the proper inquiry is whether the children are properly cared for and whether the home is an adequate environment for the children.

Sometimes it becomes difficult for judges and those of us who find ourselves in occupations that are somewhat insulated from ordinary market forces to fully understand the economic hardships being experienced by many in Michigan.  We cannot become insensitive to the cultural or other circumstances that lead people to live situations other than the traditional nuclear family where the household consists of mom, dad, the kids and the family pet.  I think the dissent in this case does an excellent job making this point.  Frankly, Judge Stephens did a better job than I could have on the issue.

You can download the majority opinion here: In re Mitchell (majority)

You can download the dissent here: In Re Mitchell (dissent)

You can download the Supreme Court’s Order here: In re Mitchell (Supreme Court)

In Re MAJ – Previous termination under the Adoption Code

In this case, the trial court terminated Respondent Mother’s parental rights to her son pursuant to MCL 712A.19b(3)(l) which states: “[t]he parent’s rights to another child were terminated as a result of proceedings under § 2(b) of this chapter or a similar law of another state.”  Previous proceedings had been initiated seeking temporary jurisdiction over Respondent Mother’s daughter.  Following an adjudication, the child became a temporary court ward.  Later, a supplemental petition was filed seeking to terminate her parental rights.  Facing possible involuntary termination of their rights, Respondent Mother and the father instead voluntarily released the child to the Department of Human Services under the Michigan adoption code on June 20, 2007.  In an effort to beat a dead horse, following that termination, the trial court on July 3, 2007 attempted to again terminate their rights to their daughter, make the child a permanent ward of the court, and commit the child to the Department of Human Services, this time under the Michigan juvenile code, giving as the legal reason the parents’ voluntary release of their parental rights to her under the adoption code.  The Court of Appeals found that this subsequent termination under the juvenile code was invalid because the parents had no rights to terminate after they voluntarily released their parental rights under the adoption code.

The Court held MCL 712A.19b(3)(l) only applies to a prior involuntary termination under the Michigan juvenile code or a similar law of another state. It does not apply to a voluntary termination under the Adoption Code.  While the Court found that the trial court erred in terminating parental rights under 712A.19b(3)(l), it found that error harmless because termination would have been proper under MCL 712A.19b(3)(m) which states: “[t]he parent’s rights to another child were voluntarily terminated following the initiation of proceedings under § 2(b) of this chapter or a similar law of another state.”  The termination under the Adoption Code was held to be a voluntary termination  that qualified under 712A.19b(3)(m).

The Court went on to affirm the best interest findings of the trial court.  The Court also addressed the trial court’s decision to allow a foster care agency worker to offer an opinion regarding the risk that a person infected with HIV (human immunodeficiency virus) could transmit it to another person (Mom was HIV positive).  The Court’s ruling on this issue is  a little difficult to understand, but it found the trial court did not abuse its discretion in allowing the testimony because it was admitted for a very narrow purpose and the error would be harmless in any event because there was ample testimony that termination was in the child’s best interests.

All in all this case does not tell us much we didn’t already know: basically, any termination, whether it be voluntary or involuntary, can lead to termination of parental rights.  Just be sure you cite the proper section in your petitions and orders of termination.

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

In re Hansen – Published Opinion Re: Best Interests

Last week, the Court of Appeals (CoA) issued a published opinion in a child protection matter.  The case is the first to address the best interest scheme after MCL 712A.19b(5) was amended on July 11, 2008.

The facts of the case are pretty simple.  Respondent Father was incarcerated at the time the child came into care.   At the time the supplemental petition for termination of parental rights was filed, he still had 12 years remaining on his minimum sentence.  The trial court terminated parental rights under MCL 712A.19b(3)(c)(i) because the conditions leading to the adjudication continued to exist and there was no reasonable likelihood they would be rectified within a reasonable time and under MCL 712A.19b(3)(h) because the child will be deprived of a normal home with him for a period far exceeding 2 years, where his earliest release date is not until 2021, when she will be at least 13 years old.

The CoA did not find that the trial court erred with respect to the statutory basis.  However, the CoA found the trial court erred in not making an affirmative best interest finding.   Before MCL 712A.19b(5) was amended, a trial court was not required to make specific findings on the question of best interests under In re Gazella, 264 Mich App 668, 677; 692 NW2d 708 (2005).

With the amendment to MCL 712A.19b(5), it appears Gazella is no longer good law.   As amended, termination of parental rights may only occur if the court finds a statutory ground for termination and that the termination of parental rights is in the child’s best interest.  If the court so finds, termination is mandatory and not permissive (“the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.” MCL 712A.19b(5)).  Thus, the trial court must make specific best interests findings following a finding that a statutory basis for termination of parental rights exists.  The CoA found that while the trial court erred in appying the wrong best interests tests, the error was harmless because ample evidence existed on the record to support a finding that termination of parental rights was in the best interests of the child.

There is nothing too groundbreaking about this case, but it is the first to interpret the amended MCL 712A.19b(5).  It is a fairly straightforward interpretation of the statute.  I assume In re Trejo is also no longer good law.  Now, if only the appeals courts would give us a definition for best interests.  But I dream.

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

Link to case on Google Scholar.

In re AP & BJ

Respondent-mother, Holly Johnson, appealed as of right the “custody” order entered by third judicial circuit court Judge Jerome C. Cavanagh, assigned to the juvenile section of the family division, awarding the father, Michael Reid, joint legal custody and sole physical custody of the minor child, B.J. Sole legal and physical custody of the minor child had previously been awarded to Johnson (mother) by an earlier order entered in an active paternity action between Johnson and Reid pending before third judicial circuit court Judge Arthur J. Lombard, assigned to the domestic relations section of the family division.

The issue on appeal was whether a trial court presiding over a child protective proceeding, or juvenile case, may make determinations in related actions under the Child Custody Act (CCA).  The CoA held that a trial court, which is part of a circuit court’s family division under MCL 600.1011, presiding over a juvenile case has jurisdiction to address related actions under the CCA consistent with MCL 600.1021 and MCL 600.1023, as well as local court rules. The CoA further held that when exercising its jurisdiction, a trial court is required to, and must, abide by the relevant procedural and substantive requirements of the CCA (basically, best interests findings).

The CoA also stated that the trial court, when confronted with these dual (custody/child protection) cases, should make it clear that it is exercising its jurisdiction under the CCA.  The opinion also addresses consolidating cases, etc.

You can download and view the opinion by clicking here: In re AP & BJ

Link to case on Google Scholar.

In re Rood

In a rare move, the Michigan Supreme Court has weighed in on a termination of parental rights case.  Even more surprising, they reversed the termination of a father’s parental rights.

In this case, Mother and Respondent Father were never married.  Their relationship ended about a year after the child (hereinafter, “A”) was born.  Following the break-up, Respondent Father  only had sporadic contact with the child.  In fact, Respondent Father’s last visit to Mother’s home resulted in a domestic violence charge against him.  After that, he no longer saw A because he was ordered not to have contact with Mother.

On March 21, 2006, DHS removed A from Mother’s home after confirming reports that she had not been caring for A and had left all three of her children with friends without making provisions for their care. Her whereabouts were unknown.  The CPS worker knew that Respondent Father was A’s father and was aware that he was in jail for the domestic violence against Mother on the day the DHS removed A.

Following his release from jail, Respondent Father notified the CPS worker of his release and his desire to have A placed with him.  When he was informed that the plan was to reunify A with Mother, Respondent Father indicated that he did not wish to set up visits as he did not want to subject the child to the turmoil between Mother and Respondent Father following reunification.  He testified that CPS did not notify him that DHS would create a case service plan for reunification.  At that time, Respondent Father notified her of his contact information.

An ISP was prepared for Mother, which outlined the steps required of Mother for reunification.  The ISP listed Respondent Father’s whereabouts as unknown.  Most of the notices for the hearings were erroneously sent to an incorrect address for Respondent Father.

Later, the situation with Mother deteriorated and the permanent plan changed to termination and a petition was filed seeking to terminate Mother and Respondent Father’s parental rights.  Shortly before the trial on the termination petition, Respondent Father notified DHS of his desire to be considered a placement for A. Notice was sent to the correct address and Respondent Father appeared for trial.  Mother did not participate in the proceedings.  Instead, she voluntarily relinquished her parental rights.

The trial court terminated Respondent Father’s parental rights pursuant to MCL 712A.19b(3)(g) and (j). The trial court  found “a failure to demonstrate proper motivation on behalf of [respondent] in making attempts to see his [child].”  The court added: “[T]here has to be a responsibility and a burden of a parent to step forward. And, it’s not the department’s responsibility to . . . search him out in the way that’s been suggested by counsel.”

The Supreme Court determined that service pursuant to the statute, court rules, and federal regulations “was sorely lacking” in this case, the court concluded “the state deprived respondent of even minimal procedural due process by failing to adequately notify him of proceedings affecting his parental rights and then terminating his rights on the basis of his lack of participation without attempting to remedy the failure of notice.”  DHS was aware of his status as the child’s  father, his correct address, his release from jail, and his interest in obtaining custody of A, yet it did not make reasonable efforts to inform him of the ongoing proceedings after learning most of its attempts at notice and contact had failed. In fact, despite being informed numerous times of his correct address, the Court continued to serve him at an incorrect address.  While Respondent Father had “bare notice” of the proceedings, and the DHS was pursuing reunification with the mother he did not receive sufficient information to meaningfully participate (or decline to participate) in the pre-termination proceedings. “The failures of notice deprived respondent of his right to procedural due process when the state then terminated his parental rights in part as a result of circumstances and missing information directly attributable to” his lack of meaningful prior participation. He was denied due process because the proceedings lacked “fundamental fairness,” which is required before parental rights can be terminated.

When the permanent plan changed from reunification with mother to termination of her parental rights, they did not look at placement with Respondent Father.  The Court also held the state failed to fulfill statutory mandates, which facilitate a parent’s fundamental right of access to his child, to place a child with his or her parent if possible. Specifically, the Court held this was a violation of the requirement under MCL 712A.13a(10) to place the child in the most family-like setting.

The lead opinion goes into a lengthy discussion of the funding provisions of Title IV-E.  It points out that Michigan statutes and court rules mirror the provisions of Title IV-E so Michigan may receive Federal funding for foster care wards. The Court held that the State violated Title IV-E by failing to plan for Respondent Father or look to him as a placement.  In perhaps the most controversial part of the Court’s decision, the majority held that a respondent may “claim procedural error in an action brought by the state to terminate this right if the state fails to comply with the required procedures and its failure may be said to have affected the outcome of the case.”

Justice Cavanagh concurred in the result reached by the lead opinion, concluding the trial court’s decision to terminate respondent’s parental rights should be reversed because the DHS and the trial court failed to make reasonable efforts to reunite him with A and in light of this failure, the trial court clearly erred in finding the DHS had shown the statutory grounds for termination were established. However, contrary to the lead opinion, the justice did not think it was necessary for the court to determine whether the state’s actions also violated respondent’s due process rights.

Justice Weaver agreed only with the result of the lead opinion, specifically the Court of Appeals correctly remanded the case to give respondent “a fair opportunity to participate.” The justice agreed with Justice Young because the case was resolved both procedurally and substantively on the basis of Michigan law, the lead opinion “unnecessarily attempts to resolve federal questions concerning Title IV-E of the Social Security Act.”

Justice Young also concurred in the lead opinion’s result, but on a narrow ground.  In light of the failed and inadequate attempts to provide respondent notice, the trial court clearly erred in using his failure to participate in the proceedings against the mother as grounds for terminating his parental rights. The justice found “insupportable” the lead opinion’s “attempt to create substantive rights in a parent from federal statutes that do nothing more than impose a duty on the state.” He also disagreed with its reliance on the current version of the CFF, and its consideration of the potential constitutional implications of the trial court’s and DHS’s statutory and court rule violations. Those violations, and the trial court’s use of its own violations as grounds for terminating respondent’s parental rights, were sufficient to require appellate relief.

This summary attempts to do justice to the 65 pages of opinions and concurring opinions.  I am not sure that it does, but the full text is below for your reading pleasure.

This is a case of bad facts making good law.  There is not too much positive one can say about this father.  He had only sporadic contact with his child after the break up with Mother and the last time he had contact with the child, he commits domestic violence against mother.  After the child is removed from Respondent Mother, he does not request to visit the child.  He is not the most sympathetic guy.

This case addresses issues of which most of us practicing in this area have long been aware.  First, we have unwed parents with and absentee father.  This is not Ozzie and Harriet.  There is some serious dysfunction here.  Nevertheless, the Supreme Court held that legal fathers, even the absent ones, have a right to participate in the reunification process.  Second, courts must dot the “i”s and cross the “t”s.  At a minimum, they must properly serve all parents.  Third, the Constitution is still alive and well.  One of the most fundamental rights we have is to raise our children in the way that we see fit.  Most parents are not perfect, but when does a lack of perfection justify termination of parental rights?  Many times, DHS and the courts are quick to move to adoption in an effort to provide children with a “better” life.   The rights of the natural parents are often cast aside in the rush to move toward permanance.  In Rood, the Supreme Court reminds us that the procedural notice and reunification requirements are more than just motions through which the court must go in order to clear the way for adoption.  Rather, they are vital to advance the important public policy goal of reuniting families.

Click here to download the case: In re Rood.

Link to case on Google Scholar.