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 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 MAJ – Previous termination under the Adoption Code

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

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

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

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

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

In re 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