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.