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First, a little procedural history: In an unpublished decision on March 24, 2009, the Court of Appeals affirmed the termination of father’s parental rights in a 2-1 opinion with Judges Jansen and Borrello in the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

In re Hansen – Published Opinion Re: Best Interests

Last week, the Court of Appeals (CoA) issued a published opinion in a child protection matter.  The case is the first to address the best interest scheme after MCL 712A.19b(5) was amended on July 11, 2008.

The facts of the case are pretty simple.  Respondent Father was incarcerated at the time the child came into care.   At the time the supplemental petition for termination of parental rights was filed, he still had 12 years remaining on his minimum sentence.  The trial court terminated parental rights under MCL 712A.19b(3)(c)(i) because the conditions leading to the adjudication continued to exist and there was no reasonable likelihood they would be rectified within a reasonable time and under MCL 712A.19b(3)(h) because the child will be deprived of a normal home with him for a period far exceeding 2 years, where his earliest release date is not until 2021, when she will be at least 13 years old.

The CoA did not find that the trial court erred with respect to the statutory basis.  However, the CoA found the trial court erred in not making an affirmative best interest finding.   Before MCL 712A.19b(5) was amended, a trial court was not required to make specific findings on the question of best interests under In re Gazella, 264 Mich App 668, 677; 692 NW2d 708 (2005).

With the amendment to MCL 712A.19b(5), it appears Gazella is no longer good law.   As amended, termination of parental rights may only occur if the court finds a statutory ground for termination and that the termination of parental rights is in the child’s best interest.  If the court so finds, termination is mandatory and not permissive (“the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.” MCL 712A.19b(5)).  Thus, the trial court must make specific best interests findings following a finding that a statutory basis for termination of parental rights exists.  The CoA found that while the trial court erred in appying the wrong best interests tests, the error was harmless because ample evidence existed on the record to support a finding that termination of parental rights was in the best interests of the child.

There is nothing too groundbreaking about this case, but it is the first to interpret the amended MCL 712A.19b(5).  It is a fairly straightforward interpretation of the statute.  I assume In re Trejo is also no longer good law.  Now, if only the appeals courts would give us a definition for best interests.  But I dream.

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

Link to case on Google Scholar.

In Re 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 Hall

In an order in lieu of granting leave to appeal, the Supreme Court reversed the Court of Appeals opinion and reinstated the May 15, 2008 order of the trial court terminating the respondent-mother’s parental rights to the minor children.  The Supreme Court ruled that the Court of Appeals misapplied the “clear error” standard by substituting its judgment for that of the trial court, and rendered a decision contrary to the clear and convincing evidence supporting termination of the respondent’s parental rights pursuant to §§ 19b(3)(b)(ii) and (j). The Court remanded the case to the trial court for further proceedings consistent with the Court’s order.

Click here to view or download the Supreme Court’s order: In re Hall (Supreme Court)

The Court of Appeals opinion was issued before this blog was started, so we do not have a previous article related to this case.  Here is a summary of the Court of Appeals opinion:

The child protective proceedings began after respondent mother reported to the police her husband, F, had sexually abused her oldest daughter B.  DHS filed a petition seeking termination of respondent mother’s parental rights to her three children and also sought to terminate the parental rights of the children’s fathers.  The allegations in the petition included, inter alia, respondent told the police that B told her three weeks earlier that F had “touched her privates,” respondent mother confronted him, he said he was sorry, and cried.  F left the home and a short time later returned and told respondent mother he would slow down on his drinking.  Respondent mother stayed in the home with the children until the time she went to the police after she discovered F very intoxicated and alone with B.  When confronted, F apparently admitted to also touching B two years earlier.  In January 2008, he pleaded guilty to CSC IV.

Both fathers voluntarily relinquished their parental rights.  The trial court terminated respondent mother’s parental rights after a trial pursuant to MCL 712A.19b(3)(b)(ii) [the parent who had the opportunity to prevent the physical or sexual abuse of a child failed to do so and a reasonable likelihood exists that the child 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 trial court held respondent mother had the opportunity to prevent the sexual abuse of B, failed to do so, and the children would likely suffer injury or abuse if returned to her care. The CoA concluded the trial court clearly erred in finding clear and convincing evidence the children would likely suffer harm if returned to her care and entirely disregarded the testimony of the only witness who had first-hand information as to mother’s relationship with her children and her ability to parent them. The CoA noted the trial court expressed “strong opinions” in rejecting the witness’s testimony, had preconceived notions about the case, and ordered the case reassigned to a different judge.

In lieu of granting leave to appeal the Supreme Court issued an order reversing the Court of Appeals, noting only that the court substituted its own judgment for that of the trial court and rendered a decision contrary to evidence supporting termination.  The Court of Appeals offered a 16 page opinion detailing its findings.  The Supreme Court order does not explain exactly where the Court of Appeals substituted its own judgment and exactly what portions of its opinions are not suppored by the record below.  Thus, there is not much we can learn from this case.

Click here to view or download the Opinion: In re Hall (Court of Appeals)

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 AP & BJ

Respondent-mother, Holly Johnson, appealed as of right the “custody” order entered by third judicial circuit court Judge Jerome C. Cavanagh, assigned to the juvenile section of the family division, awarding the father, Michael Reid, joint legal custody and sole physical custody of the minor child, B.J. Sole legal and physical custody of the minor child had previously been awarded to Johnson (mother) by an earlier order entered in an active paternity action between Johnson and Reid pending before third judicial circuit court Judge Arthur J. Lombard, assigned to the domestic relations section of the family division.

The issue on appeal was whether a trial court presiding over a child protective proceeding, or juvenile case, may make determinations in related actions under the Child Custody Act (CCA).  The CoA held that a trial court, which is part of a circuit court’s family division under MCL 600.1011, presiding over a juvenile case has jurisdiction to address related actions under the CCA consistent with MCL 600.1021 and MCL 600.1023, as well as local court rules. The CoA further held that when exercising its jurisdiction, a trial court is required to, and must, abide by the relevant procedural and substantive requirements of the CCA (basically, best interests findings).

The CoA also stated that the trial court, when confronted with these dual (custody/child protection) cases, should make it clear that it is exercising its jurisdiction under the CCA.  The opinion also addresses consolidating cases, etc.

You can download and view the opinion by clicking here: In re AP & BJ

Link to case on Google Scholar.