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In re Miteff is an unpublished case from the Court of Appeals reversing the termination of a mother’s parental rights.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

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(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:

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

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

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

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

Click here to view the case: In re Pugh

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

In Re Bridges

This opinion was issued on February 24, 2009.  It is unpublished, but it is significant because it reverses a trial court’s termination of parental rights and addresses the issue of a respondent’s invocation of his or her 5th Amendment rights in a child protection proceeding.

In this case, Respondent-mother appealed as of right a circuit court order terminating her parental rights pursuant to MCL 712A.19b(3)(b)(i) [the parent’s act caused physical injury or physical or sexual abuse and a reasonable likelihood exists that the children will suffer injury or abuse in the foreseeable future if place in the parent’s home], (ii) [the parent who had the opportunity to prevent physical injury or physical or sexual abuse of a child failed to do so and a reasonable likelihood exists that the children will suffer injury or abuse in the foreseeable future if placed in the parent’s home], and (j) [given the parent’s conduct or capacity, the children likely would suffer harm if returned to the parent’s custody].  The allegations of abuse related to whether Respondent-mother intentionally caused the death of her 10 month old child.  The theory was that evidence an injury to a sibling of the children could be used to show a likelihood that the children were at a risk of harm.

Respondent is the mother of MP and JB, the two children to whom her rights were terminated.  Her third child, M., died at 10 weeks. Child abuse was strongly suspected. No evidence existed indicating that Respondent ever intentionally harmed M. or otherwise inflicted the contusions noted at the time of the autopsy. The medical examiner conceded based on the evidence available to him he could not rule out a homicide took place, but he had more questions than answers. The cause of M.’s death remained purely speculative. The speculative record simply did not support the fact respondent probably caused his death.

The petition alleged that on August 30, 2007, the Lincoln Park police department dispatched officers to Respondent’s residence based on “a report of a child not breathing.” EMS personnel arrived, found M. unresponsive, and took him to the hospital, where he was “pronounced dead on arrival.”  The petition asserted that M. “was observed by hospital staff and the attending officer to have bruising to the right chest cavity, right arm and other redness to the face.”  According to the medical examiner, the contusions found on M.’s chest, arm, and face were consistent with the events surrounding a frantic effort to grab and hold the child while performing CPR, and did not cause or contribute to his death. Nothing in the record supported an inference any of the contusions contributed to his death in any manner.

The trial court terminated Respondent’s parental rights based on the inference that the bruising on M.’s body resulted from injuries inflicted by respondent, and identified as the sole basis for this inference the absence of any “plausible” explanation for the bruising supplied by respondent herself.

Respondent invoked her 5th Amendment right and declined to testify at trial, citing the fact that the criminal investigation into the baby’s death remained open.  Although respondent’s invocation of the Fifth Amendment permitted the circuit court to draw an adverse inference, Phillips v Deihm, 213 Mich App 389, 400; 541 NW2d 566 (1995), the existence of an adverse inference did not relieve petitioner of its burden to produce clear and convincing proof of the ground for termination. See Trupiano v Cully, 349 Mich 568, 570; 84 NW2d 747 (1957).   Even assuming Respondent’s failure to testify resulted in a presumption her testimony would have been unfavorable, “[t]he burden of producing evidence of a fact cannot be met by relying on this ‘presumption.’” 2 McCormick, Evidence (6th Ed), § 264, p 225; see also MRE 301.  Thus, an adverse inference drawn from her invocation of her Fifth Amendment right did not shift to her the burden of proving she did not cause the bruising, and did not relieve the DHS of the need to prove a ground for termination by clear and convincing evidence.  The CoA reversed and remanded to the trial court.

This case is an interesting discussion of the value of an adverse presumption based on a Repondent’s failure to testify at trial.  The burden of production cannot be met based solely on this presumption and it is certainly insufficient to overcome the clear and convincing evidence hurdle.

Click here to download the case: In re Bridges

In Re Green

In this unpublished opinion, the Michigan reversed and remanded the matter because the trial court failed to determine whether Respondent Mother suffered from a disability under the Americans with Disabilities Act.  If the Trial Court concludes that she is disabled, DHS must provide her with services that provide reasonable accommodations under the ADA.

Respondent timely raised her request for additional services under the ADA early in the proceedings.  In re AMB, 248 Mich App 144, 194-195; 640 NW2d 262 (2001); In re Terry, 240 Mich App 14, 26; 610 NW2d 563 (2000). The ADA requires the Department of Human Services (DHS) “to make reasonable accommodations for those individuals with disabilities so that all persons may receive the benefits of public programs and services.” Id. at 25. “Thus, the reunification services and programs provided by the [DHS] must comply with the ADA.” Id. “[I]f the [DHS] fails to take into account the [parent’s] limitations or disabilities and make any reasonable accommodations, then it cannot be found that reasonable efforts were made to reunite the family.” Id. at 26.

This case is unique in that you rarely see an opinion citing the ADA.  This is somewhat surprising because in many instances it is some disability of the parent that is the cause of the neglect in the home.  As a practice tip, it is important to evaluate your clients mental, physical and cognitive status early on in the representation.

As used in the ADA, the word “[d]isability” means “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; a record of such an impairment; or being regarded as having such an impairment,” and includes “[a]ny mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 28 CFR 35.104.  You will most likely need to request a court appointed expert to evaluate whether your client is disabled for the purposes of the ADA,

In the Matter of Isreala Greene (Click here to view the case)