In re Beck – Supreme Court Opinion – Child Support

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

In re D.M. Kleyla

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

In re Hansen – Supreme Court Vacates Court of Appeals

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).

In re Mason – Michigan Supreme Court

Interesting things happen when you are on vacation.  While I was on our family vacation, the Michigan Supreme Court ruled on In re Mason.

THE FACTS:

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:

1. 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.
2. 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.
3. 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)
4. 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)

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