In Re Sikorski – Release from Prison

In this case, the CoA found that the trial court clearly erred when it terminated rights under 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.] Respondent’s earliest release date from prison was only two months after the termination hearing.  The Court reasoned that there is too much uncertainty in potential release dates for section (3)(h) to be used as a basis to terminate parental rights when a respondent’s earliest release date is close to the time of the termination hearing.

The Court went on to hold that the error was harmless because there were other grounds for termination that respondent did not contest. If  your client’s earliest release date is anytime within two years of the termination hearing, you could make this argument.  Obviously, the closer to two years from the termination hearing your client’s earliest release date is, the less likely this argument will prevail.

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

In re Johnson – Jurisdiction

It is rare that the CoA issues an opinion overturning a case based on a lack of jurisdiction, but last week we got just such a case.  The case addresses the proper grounds for jurisdiction under MCL 712A.2 and while the case is unpublished, it does include some arguments that may be applicable in some of your cases.

During the course of an investigation related to allegations that the child had been sexually abused by a family friend, DHS learned that Father had been convicted of 3rd and 4th degree CSC and sentenced to 6 to 15 years in prison in March 2007.   The victim was a 14 year old student at the school where Father worked as a janitor and the offenses occurred at the school.  DHS considered Father an unfit parent based solely on his CSC offenses.

DHS filed a petition to terminate Father’s parental rights under MCL 712A.19b(3)(g), (h), and (j).  The trial court found that “based on the information provided that father will not be around for a significant priod of this child’s life and that satisfies MCL 712.2(b)(1) and (2).  The Court went on to find a statutory basis for termination of parental rights under MCL 712A.19b(3)(g), (h), and (j).  Later, the trial court found termination was in the child’s best interests.

In its analysis, the Court of appeals addressed whether the trial court properly found jurisdiction.  The Court looked at four basis upon which a court may acquire jurisdiction under MCL 712A.2.

1) The first basis for jurisdiction under § 2(b)(1) is that the parent “legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals.” In this case, the Court found Father was unable to provide for the child due to his incarceration.

2) The second basis for jurisdiction under § 2(b)(1) is that the child “is subject to a substantial risk of harm to his or her mental well-being.” Where the child is the victim of a criminal offense committed by the parent, the court can exercise jurisdiction under the second clause of § 2(b)(1) because “there most certainly will be some negative effect on the child’s mental well-being” and the fact that the parent is incarcerated at the time the petition is filed “does not eliminate the mental and emotional effect on the child of his violent conduct.” In re S R, 229 Mich App 310, 315; 581 NW2d 291 (1998).  In this case, since the CSC was committed on an unrelated minor and the child had no knowledge of the crime, there was no risk of harm to the child.

3) The third basis for jurisdiction under § 2(b)(1) is that the child has been abandoned by her parents. To abandon something is “to leave completely and finally; forsake utterly; desert.” Random House Webster’s College Dictionary (1992). In the context of the parent-child relationship, abandonment is most often described as willful or intentional conduct on the part of the parent which manifests a settled purpose to forgo all parental duties and relinquish all parental claims to the child. In re TCB, 166 NC App 482, 485; 602 SE2d 17 (2004). Accord Petition of CEH, 391 A2d 1370, 1373 (DC, 1978); Hinkle v Lindsey, 424 So 2d 983, 985 (Fla App, 1983); In re Adoption of DA, 222 Ill App 3d 73, 78; 583 NE2d 612 (1991); In re Adoption of MLL, 810 NE2d 1088, 1092 (Ind App, 2004); In re Guardianship of DMH, 161 NJ 365, 376-377; 736 A2d 1261 (1999).  In this case, father communicated with the child from prison, so this ground was improper.

4)  The fourth basis for jurisdiction under § 2(b)(1) is that the child is without proper custody or guardianship.  If the child is living with another legally responsible adult who is providing proper care, the child is not without proper custody or guardianship despite the fact that the parent himself is unable to provide proper custody. MCL 712A.2(b)(1)(B); In re Nelson, 190 Mich App 237, 241; 475 NW2d 448 (1991).  In this case, the child was living with mother and there was no evidence she was not providing proper care.

5) Jurisdiction may also be acquired under § 2(b)(2). This subsection requires proof that due to some danger posed by a parent, the child’s home or environment is an unfit place for the child to live. However, a parent’s criminal status alone is not sufficient to enable the court to exercise jurisdiction under § 2(b)(2). In the Matter of Curry, 113 Mich App 821, 830; 318 NW2d 567 (1982). It must also be shown that the child’s custodial environment was unfit. Id.

Finding that there was no applicable basis for jurisdiction, the Court reversed the termination.  The Court did not address whether any of the statutory bases for termination were proper.  I do not believe the case was remanded because the finding was that the Court lacked jurisdiction.

This is a nice post to review whenever you are thinking about challenging jurisdiction because the opinion is comprehensive in its analysis of each of the grounds upon which a court may acquire jurisdiction over a child under MCL 712A.2.  The case also provides some nice citations to certain defenses to jurisdiction you may want to use.

You can view or download the opinion here: In re Johnson

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 Mason – Separate Best Interest Hearing Not Required on Supplemental Petition

In this case, the Court of Appeals affirmed a termination of respondent father’s parental rights on a supplemental petition.  He argued that the trial court erred by not holding a separate best interests hearing after finding a statutory basis to terminate his parental rights.  The CoA held the argument was without merit because where termination is requested pursuant to a supplemental petition filed after the initial dispositional hearing, the trial court need only conduct a single hearing at which both the statutory ground for termination and the child’s best interests were considered. Defendant was not entitled to a separate best interests hearing.  The CoA cites MCR 3.977(G)(1)(b) and (3) in support of its finding, which state:

(G) Termination of Parental Rights; Other. If the parental rights of a respondent over the child were not terminated pursuant to subrule (E) at the initial dispositional hearing or pursuant to subrule (F) at a hearing on a supplemental petition on the basis of different circumstances, and the child is within the jurisdiction of the court, the court must, if the child is in foster care, or may, if the child is not in foster care, following a dispositional review hearing under MCR 3.975, a progress review under MCR 3.974, or a permanency planning hearing under MCR 3.976, take action on a supplemental petition that seeks to terminate the parental rights of a respondent over the child on the basis of one or more grounds listed in MCL 712A.19b(3).

(1) Time.

…

(b) Hearing on Petition. The hearing on a supplemental petition for termination of parental rights under this subrule must be held within 42 days after the filing of the supplemental petition. The court may, for good cause shown, extend the period for an additional 21 days.

(3) Order. The court must order termination of the parental rights of a respondent and must order that additional efforts for reunification of the child with the respondent must not be made, if the court finds

(a) on the basis of clear and convincing evidence admitted pursuant to subrule (G)(2) that one or more facts alleged in the petition:

(i) are true, and
(ii) come within MCL 712A.19b(3).

(b) that termination of parental rights is in the child’s best interests.

I believe the CoA based its opinion on the singular use of the word “hearing” in MCR 3.977(G)(1)(b).  However, I don’t read the rule as a basis to deny a separate best interest hearing on a supplemental petition.  To the contrary, the fact that the statutory basis findings and the best interest findings are set forth in separate sub-paragraphs indicate that a separate hearing is required.

Also, take a closer look at MCR 3.977 (G)(3)(a) and (b).  You will notice that the clear and convincing standard is used for finding a statutory basis for termination in sub-paragraph (a), but  there is no standard listed for the best interest findings in sub-paragraph (b).   The way this rule is drafted leaves some ambiguity as to the standard of proof necessary to show that it is in the best interests of the child to terminate parental rights.

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

In re Cooper – Putative Father

There were 10 termination of parental rights opinions from the Court of Appeals on the E-Journal this morning.  All of them affirmed the termination.  In In re Cooper, Respondent father argued that the trial court erred in failing to take action to ascertain his status as the child’s father, as a result of which he was deprived of his right to court-appointed counsel.  The Court of Appeals found the trial court failed to comply with MCR 3.921(C) (presumably the notice requirements) after finding at the preliminary hearing probable cause to believe that respondent was the child’s putative father.  However, they found he was not prejudiced by any error that may have occurred. Respondent was not entitled to counsel until he became a respondent by establishing paternity, and he did not take exception to the trial court’s exercise of jurisdiction over the child before paternity was established.  After respondent established paternity, counsel was appointed to assist him, the termination hearing was adjourned to permit respondent to confer with counsel, and respondent was represented by counsel at the hearing.  Under the circumstances, the Court held, any error was harmless.

The Court engages in a nice little discussion of when a parent is entitled to counsel:

A respondent in a child protective proceeding has a due process right to counsel. In re EP, 234 Mich App 582, 597-598; 595 NW2d 167 (1999), overruled on other grounds by In re Trejo, 462 Mich 341, 353 n 10; 612 NW2d 407 (2000). That right is also guaranteed by statute and court rule. MCL 712A.17c(5); MCR 3.915(B)(1). In child protective proceedings, a putative father, i.e., the alleged biological father of a child who does not have a legal father, is not a respondent. MCR 3.903(A)(7), (17), and (23); MCR 3.903(C)(10). Therefore, until respondent became a legal father by completing and filing an acknowledgement of parentage, MCR 3.903(A)(7)(e), he was not entitled to the appointment of counsel.

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

In re Eastman – Insufficient Evidence for Termination

In this unpublished opinion from Ingham County, the supplemental petition alleged CPS received a complaint respondent was selling drugs and had guns in his house.  Four days later, the foster care worker referred him for a drug screen, which he failed to complete.  DHS attempted to follow up with him without success.  The trial court terminated Father’s parental rights pursuant to 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.]

The CoA reversed, holding that the evidence established there was a cause for concern regarding his ability to provide proper care and custody, but the CPS complaint was not substantiated.   The evidence did not clearly and convincingly show respondent was unable to provide proper care and custody or he would not be able to do so within a reasonable time.   The evidence at the hearing established the CPS complaint was unfounded and subsequent drug screens indicated respondent was not using drugs.   Because there was no reason to believe he abused drugs or kept guns in his home, there was no basis for concluding he was unable to provide proper care and custody or he would not be able to provide proper care and custody within a reasonable time given the child’s age.

This case is significant because it deals with the sufficiency of evidence necessary to substantiate the allegations contained in the petition under the clear and convincing evidence standard.  In this case, because Father failed to follow up on drug testing, there was no  evidence to support the allegation that he was using or selling drugs.   I have often argued that the burden to show a statutory basis to terminate parental rights is on the state – the parent is not required to prove anything.   However, it does not always feel that way or (as evidenced in this case) work that way in practice.  Often, when allegations are made by DHS the respondent must disprove them at trial in order to prevail.   Even in this case, the CoA went out of its way to make clear that “subsequent drug screens indicated that respondent was not using drugs.”  Would the Court have ruled the same way had father refused drug testing throughout the adjudicative process?  I suspect not.  Nevertheless, before the state may sever the Constitutionally protected rights of a parent to his or her child, it must clearly and convincingly make its case and the parent is not required to assist the state in its prosecution.

You can view or download the file here: In re Eastman

In Re Miteff – Anticipatory Neglect Doctrine

In re Miteff is an unpublished case from the Court of Appeals reversing the termination of a mother’s parental rights.

As a result of a DHS investigation and previous child protective proceeding pertaining to respondent-father’s alleged emotional and verbal abuse of his teenage daughter, on September 5, 2006, DHS removed the 23-month old child who is the subject of this appeal from the home of respondent-mother and respondent-father.  The only allegation involving respondent-mother was a speech defect of the young son of both  parties.  One attorney represented both parents and both pled to the allegations in the petition regarding the speech delay and that the child at issue was present when the emotional and verbal abuse occurred.

Both parents parents completed all evaluations and assigned classes.  Nevertheless, trial court directed petition to terminate after determining it was unsafe for the young child to return home.  The trial court terminated respondent-mother’s parental rights, despite her benefiting from services offered, for failing to separate from respondent-father, secure employment or divorce, and the trial court’s finding that respondent-mother could not protect the child because she failed to intervene in one instance of verbal and  emotional abuse by respondent-father of his teenage daughter.

Respondent-mother appealed and the Court of Appeals held that the trial court failed to provide respondent-mother with an opportunity to succeed and  terminated primarily on her association with the child’s father.  The CoA recognized that the issue in the case was separating the behavior and level of culpability of each respondent.  Courts must make an objective analysis of each parent’s ability to care for the child.

The CoA ruled that jurisdiction over the mother was obtained by her plea based on legal advice  despite the factual insufficiency of the allegations in the petition.  There were insufficient allegations regarding respondent-mother for the trial court to acquire jurisdiction.

With reference to the allegations pertaining to the minor child’s speech delay, the CoA held those concerns were resolved before trial initiated termination proceedings.  Respondent-mother acknowledged her deficiencies and participated in all parenting classes required by DHS, which all witnesses agreed resulted in a benefit and affirmative development of her parenting skills.   Notably, compliance with a parent-agency agreement serves as evidence of a parent’s ability to provide appropriate care. In re JK, 468 Mich 202, 214; 661 NW2d 216 (2003).

The initial petition also raised the issue of danger from guns in the home.  However, there was no evidence presented that respondent-mother mishandled guns.

Respondent-mother lost her parental rights through guilt by association with respondent-father and the trial court placed mother in Catch 22.  It merely assumed that because of her failure to intervene in an argument  between her husband and his teenage daughter, she was incapable of  protecting her son.  Petitioner’s burden of proof was shifted to respondent-mother to prove she could defend her son from a speculative harm posed by another person (specifically, father).  The trial court misapplied anticipatory neglect.  The CoA remarked that the doctrine may be an appropriate basis of invoking jurisdiction, but can never be  the sole basis of terminating parental rights without a concurrent demonstration of parental unfitness.  Specifically, the Court wrote, “The speculative nature of this doctrine was not intended to serve as the sole basis for the termination of an individual’s  parental rights without a concurrent demonstration of parental unfitness.” A family court’s finding that there is no reasonable expectation that the  parent will be able to provide proper care and custody for a child in the future must rest on more than mere conjecture.

There has been much talk on the Children’s law listserv today regarding whether a request should be made that this case be published.  I would support such a request.

There was also some speculation regarding whether this case conflicts with In re Gazella and In re Dittrick, which allow the removal of a child based on anticipatory abuse and anticipatpatory neglect respectively.  I would submit that this matter in no way conflicts with those two decisions.  This case does not address removal per se, rather it addresses whether anticipatory neglect may be sufficient by itself as a basis to terminate parental rights.

For those of you unfamiliar with the term “anticipatory neglect,” here is a little summary of the doctrine.  The doctrine of anticipatory neglect permits an assumption that “[h]ow a parent treats one child is certainly probative of how that parent may treat other children.”  In re LaFlure, 48 Mich App 377, 392; 210 NW2d 482 (1973).  See also In re Dittrick, 80 Mich App 219, 222; 263 NW2d 37 (1978). Importantly, while this concept is probative, it is not dispositive.  In other words, you may use this as evidence that a child may be at risk of harm from a parent.

You can download and read the opinion here: In re Miteff

In Re CW

This is an unpublished case from the Court of Appeals.  Petitioners began caring for the child when she was four days old and were appointed her guardians in June 2006, because respondent parents had been in and out of prison the previous several years. In July 2008, petitioners filed a petition to terminate respondents’ parental rights, which the trial court granted following an evidentiary hearing.

The trial court terminated respondents’ parental rights under MCL 712A.19b(3)(f), which provides:

(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:

* * *

(f) The child has a guardian under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8102, and both of the following have occurred:

(i) The parent, having the ability to support or assist in supporting the minor, has failed or neglected, without good cause, to provide regular and substantial support for the minor for a period of 2 years or more before the filing of the petition or, if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the petition.

(ii) The parent, having the ability to visit, contact, or communicate with the minor, has regularly and substantially failed or neglected, without good cause, to do so for a period of 2 years or more before the filing of the petition.

Petitioners had the burden of proving both subsections (i) and (ii) by clear and convincing evidence. In re ALZ, 247 Mich App 264, 272; 636 NW2d 284 (2001); In re Hill, 221 Mich App 683, 691; 562 NW2d 254 (1997).

Respondent Father did not dispute that he failed to provide regular and substantial support for the child during the statutory two-year period, but argued that he lacked the ability to do so because of his incarceration. Section 19b(3)(f)(i) considers whether a respondent provided support if he had the ability to do so or, if an order of support had been entered, whether the respondent substantially complied with the order. It was undisputed that no support order had been entered against respondent Wheeler and thus petitioners were required to prove that respondent Father had the ability to provide support and failed or neglected to regularly and substantially do so for at least two years without good cause.

The evidence showed that respondent Father had been continuously incarcerated since late 2005. Although he was in prison, the statute does not provide an exception for incarcerated parents who, despite their incarceration, “may still retain the ability to comply with the support and contact requirements of the statute.” In re Caldwell, 228 Mich App 116, 121; 576 NW2d 724 (1998).  In this case, petitioners proved that respondent Father was in prison and that he had not paid support during the two-year period preceding the filing of the petition. However, they presented no evidence to show that he had the ability to pay support.  Indeed, one of the Petititioners admitted that he did not have the ability to pay support while he was incarcerated. Therefore, the Court found petitioners failed to prove § 19b(3)(f)(i) by clear and convincing evidence and reversed the trial court’s termination of parental rights with respect to him.

Respondent Mother did not challenge the trial court’s finding that she failed to provide regular and substantial support for the statutory two-year period despite an ability to do so. Instead, she argued only that she did not have the ability to visit, contact, or communicate with the child and, therefore, the evidence was insufficient to prove § 19b(3)(f)(ii).  The Court held that respondent Mother had no contact with the child after a visit in November 2005.

A parent does not have the ability to visit, contact, or communicate with a child when a court order has been entered terminating visitation rights. In re Kaiser, 222 Mich App 619, 623-625; 564 NW2d 174 (1997). In this case, there was no evidence that any order prohibiting visitation had been entered at any time between July 2006 and October 2007. Respondents’ motion to terminate the guardianship was denied in November 2007. While respondent Mother asserted that she interpreted the court’s decision as prohibiting any contact with the child and petitioners, the trial court took judicial notice of the order that was entered after that hearing, which simply continued the guardianship and did not address the issue of visitation. The Court held that respondent Mother had not shown that she was legally prohibited from contacting the child between November 2007 and July 2008 and affirmed the termination of her parental rights.

The lesson to be learned in this case is that in a termination petition filed under MCL 712A.19b(3)(f) where a respondent has failed to pay support and no existing support order is in place, it is the burden is on the petitioner to show respondent has the ability to pay regular and substantial support.  Absent any evidence of this, the case must be dismissed.

All in all, this case was a loss for the petitioners because they were seeking to terminate parental rights to pave the way for an adoption.  Now that father has retained his legal rights, their ability to adopt the child is frustrated.

To download or view the case, click here: In re CW.

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:

***

(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

In re McEwen

D was removed from respondents’ care based in large part on the father’s drug use, criminal history, and mental instability. Before D was even adjudicated a temporary ward, the father was arrested and convicted of drug possession/distribution and felony-firearm. He was sentenced to a prison term of 6 to 20 years.  It was clearly established, the father was imprisoned for such a period D would have been deprived of a normal home for a period exceeding two years, and the father failed to provide for her proper care and custody. Because of his incarceration, it was impossible for the father to participate in any meaningful services. He was unable to provide D with proper care and custody while in prison. In addition, given the father’s admitted extensive drug problems and history of criminal conduct, it was clear his lifestyle would have placed D at risk of harm if she were returned to his care.

What is interesting about this case is the termination of Respondent Mother’s parental rights.   The CoA found there was a lack of clear and convincing evidence in the record substantiating a statutory ground for termination. Respondent Mother’s rights were terminated pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j).

One of the reasons the initial petition seeking temporary custody of D was filed was because respondent mother had been repeatedly warned that Respondent Father should not be near D because of his instability. Additionally, protective services workers wanted Respondent Mother to keep D away from Respondent Father until he could be assessed, but she failed to do so. Workers were concerned about Respondent Mother’s emotional stability.

All of the PAA’s requirements were successfully completed, though in a tardy manner. Substance abuse was not an issue for Respondent Mother. As for housing, respondent mother was living with her fiancé, Thomas Schweniger, in a twobedroom townhouse in Harbor Beach, Michigan at the time of the termination trial. The home was childproofed and the second bedroom was equipped with a crib, toys, and a walk-in closet full of clothes for D. By all accounts, Schweniger was a stable and supportive individual and active in respondent mother’s endeavors to reunite with D. Housing, therefore, was no longer an issue. Respondent Mother also successfully completed parenting classes and numerous other job training and resource management classes. Respondent Mother’s emotional stability was what needed the most attention. Baker admitted that Respondent Mother had substantially complied with the PAA and that Respondent Mother appeared to have benefited from parenting classes and was more emotionally stable. A parent’s compliance with the PAA is evidence of her ability to provide proper care and custody for her child. In re JK, 468 Mich 202, 214; 661 NW2d 216 (2003).

The Court also found that the trial court relied too heavily on the bonding assessments of Dr. Wayne Simmons. The CoA believed that the assessment of Dr. Simmons was heavily influenced by the statements of the foster mother, who described difficulty with the child’s behavior after and before visits. A third bonding assessment was performed by Dr. Robert Plummer. Dr. Plummer was provided with the journals of the foster parents, but his assessment relied more heavily on his observations of Respondent Mother’s visits with the child. During the assessment, Dr. Plummer noted that Respondent Mother was attentive, interactive, and caring. Respondent Mother interceded at times to make sure that D would not get hurt. D did not appear to fear respondent mother, and she did not try to get away from Respondent Mother. Dr. Plummer noted, “I did not observe any evidence of any lack of attachment.” The CoA clearly felt Dr. Simmons was overly influenced by the foster parents. The CoA wrote:

The foster mother denied that thoughts of adoption played a role in her testimony and statements, but it is obvious that she formed a strong
attachment to Dakota. In making its decision, it appears as if the trial court performed a best interests analysis before determining whether there was a statutory ground for termination, and determined that Dakota would be better off with her foster family than with respondent mother. Such a factor could not be considered in the initial determination of whether respondent mother was neglectful. In re Mathers, 371 Mich 516, 530; 124 NW2d 878 (1963). As our Supreme
Court has stated:

“It is totally inappropriate to weigh the advantages of a foster home against the home of the natural and legal parents. Their fitness as parents and question of neglect of their children must be measured by statutory standards without reference to any particular alternative home which may be offered to the [child].”
[In Re JK, 468 Mich 202, 215 n 21; 661 NW2d 216 (2003), quoting Fritts v Krugh, 354 Mich 97, 115; 92 NW2d 604 (1958), overruled on other grounds, In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993).]

The CoA reversed and remanded the termination of Respondent Mother’s parental rights, but affirmed the termination of Respondent Father’s parental rights.

This case seemed to turn on two things 1) Respondent Mother’s substantial compliance with the parent-agency agreement and 2) the Trial Court’s reliance on Dr. Simmons’ testimony.  Clearly, the CoA was convinced that the foster parents were attempting to sabotage Respondent Mother.

Click here to view the opinion: In re McEwen