There is not much explanation here, so I don’t have enough to comment.  I expect I will do a long post on incarcerated parent cases after Mason very soon.

For more information on the case, you can read my previous post regarding the published Court of Appeals decision here: In re Hansen.

You can view or download the Supreme Court’s order here: In re Hansen (Supreme Court).

© 2010, Melinda Deel. All rights reserved.

The Court of Appeals decision in In re Beck seemed consistent with the previous line of cases on the subject: Bradley v. Folgum and Evink v. Evink.  For this reason, I am a little surprised the Supremes decided to take this one up.  Stay tuned.

You can view or download the Supreme Court’s order granting leave here: In re Beck – Granting Leave to Appeal

© 2010, Melinda Deel. All rights reserved.

The child came to the attention of DHS on allegations that mother was allowing her children to miss excessive amounts of school.  There were also allegations that when she gave birth to one of the children, she tested positive for marijuana and opiates.  Father was incarcerated in Indiana at the time the case was initiated and throughout the proceedings.  Father’s earliest release date was April 19, 2011.

On April 6, 2009, mother entered a plea and father did not object to jurisdiction.  The foster care worker never had any contact with father “due to him being incarcerated out of state.”  There was information that the worker communicated with father via mail.

A supplemental petition was filed on October 29, 2009, alleging father “failed to participate in any way in order to be reunited with” Y.

Father had a history of incarceration.  He first went to prison in 2000 and was released on parole on October 5, 2007.  At that time, mother gave him custody of Y.  This lasted until December 2008, when he returned to prison for violating his parole.

At the hearing, father testified that he had not been provided with any services from DHS and he was on the waiting list for programs in the prison.

The worker testified that upon release father would not be able to immediately provide proper care and custody of the child.  Father testified he would be able to do so because he had in the past.

Based on these facts, the trial court found a statutory basis to terminate parental rights under (3)(g) and (3)(h).  On appeal, Father challenged the trial court’s decision under (3)(h) only.   However, the trial court interpreted his argument on the whole could be read as addressing the “reasonable expectation” component of (3)(g) and found the issue was not abandoned.

MCL 712A.19b(3)(h) states:

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.

The Court found the trial court clearly erred in finding a statutory basis based on (3)(h) because father’s earliest release date of April 19, 2011, was only 18 months from October 2009.  Thus, the facts did not show that father would be imprisoned for more than 2 years past the date of the petition.  The Court acknowledged this was only his earliest release date, but noted that petitioner did not present evidence of the maximum discharge date and failed to meet its burden on that element.  The Court noted that under In re Mason incarceration alone was not a basis for termination.

MCL 712A.19b(3)(g) states:

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 Court found the trial court clearly erred in finding a statutory basis under this ground because DHS did not provide father with any services and services were not readily available to him while incarcerated.  The Court noted that father was incarcerated in Indiana, but found that nothing in the Supreme Court’s ruling in In re Mason led it to conclude that out-of-state incarceration limits or modifies the statutory obligation of DHS.  Thus, it held that DHS failed to fulfill its statutory obligation to adequately involve or evaluate father, by failing to offer him any services and by failing to include him in any service plan.

Having found DHS did not establish a statutory basis under either (3)(h) or (3)(g), the Court reversed and remanded the case.

My Opinion:

This case deals primarily with the reasonable efforts to reunify the family DHS must make with an incarcerated parent. The panel in this case is of the opinion that Mason makes no distinction between a parent incarcerated in-state versus out-of-state.  The opinion is correct that Mason does not address the efforts required by DHS to a parent incarcerated out-of-state.   But, this is probably because that was not the facts in Mason.  DHS policy does not allow workers to cross the state line, so I am not sure DHS can provide any services to a parent incarcerated out-of-state, other than under some interstate compact.

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

© 2010, Melinda Deel. All rights reserved.

THE FACTS:

This case came before the court on Respondent Father’s appeal of the termination of his parental rights to his two sons J & C. The Court of Appeals affirmed.  Respondent Father appealed to the Supreme Court, who accepted leave.

DHS first became involved with the family in April 2006.  In October 2006, Respondent Father was incarcerated for drunk driving and later incarcerated for a violation of probation (based on the drunk driving offense) for a previous larceny charge.  His earliest release date was July 2009.  The children were removed from mother’s care in June 2007, after police found the oldest child wandering outside the home unsupervised. The petition also made father a respondent.  In July 2007, Respondent Father and mother pled no contest to the petition.

DHS prepared a PAA requiring Respondent Father and mother to submit to substance abuse and psychological assessments, complete parenting classes, maintain contact with the children, and establish legal sources of incomes and suitable homes.  There was no evidence this was ever provided to Respondent Father.  Respondent Father was not present for 5 of the review hearings between November 2007 and October 2008.  He was not informed of his right to appear by telephone pursuant to MCR 2.004.  At a July 2008 hearing, Respondent Father, through counsel requested to be a part of the proceedings, but there was no evidence the trial court addressed the request.

Respondent Father was first permitted to appear by phone at a December 2008 permanency planning hearing, at which time the plan was changed from reunification with mother to termination of both parents’ parental rights.  At the time, mother had tested positive for drugs and acknowledged that she did not have suitable housing.

A supplemental petition was subsequently filed, which contained the following allegations pertaining to Respondent Father:

Mr. Mason has been in prison since the boys were removed. His earliest release date is July 2009 and he could be incarcerated until July 2016. During his current incarceration, Mr. Mason has been participating in weekly 12-step meetings and completed a Business Education Technology program. He is waiting to be enrolled in parenting classes.

The Petition sought to terminate parental rights pursuant to:

1. MCL 712A.19b(3)(c)(i): More than 182 days have elapsed since disposition and the conditions that brought the children into care continue to exist.
2. 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.
3. 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. (h)
4. MCL 712A.19b(3) (j): There is a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent.

The foster care worker testified that he had never spoken with respondent, that Father had not completed the substance abuse program or received a psychological evaluation.  The foster care worker opined that Respondent Father’s earliest release date was July 2009 and it would take him another six months to comply after release.  Respondent Father testified that he had employment with his brother upon release and he planned to live with his mother, who had adequate room for him and the boys.

The Supreme Court issued its opinion on May 26, 2010.  The majority was comprised of Justices Corrigan, Kelly, Cavanagh, and Young.  Justice Corrigan wrote for the majority.

THE MAJORITY OPINION

The majority held that the trial court violated Respondent Father’s right to participate by telephone under MCR 2.004.  Under MCR 2.004, the moving party must offer the parent the opportunity to participate in each proceeding (meaning hearing) in a child protective action.  Because the trial court did not give Respondent Father an opportunity to appear by telephone at each hearing, the court was precluded from granting the relief requested (termination of parental rights under 2.004(F), which states, “A court may not grant the relief requested by the moving party concerning the minor child if the incarcerated party has not been offered the opportunity to participate in the proceedings, as described in this rule.”

The majority also held DHS failed to facilitate Respondent Father’s access to services and agencies and failed to discuss updating the service plan as required by MCL 712A.13a(8)(a), MCL 712A.18f(3)(d) and MCL 712A.18f(5).  In a lengthy footnote, the majority points out that such failures put the state at risk of losing Title IV-E funding.  The majority held the trial court and DHS failed to consider that Respondent Father had never been evaluated as a future placement or provided with services.

The majority held incarceration alone is not grounds for termination.  The Court notes that an incarcerated parent may provide for a child’s care and is not required to personally care for the child by leaving the child in the care of others.  In a footnote, the Court cites a number of opinions in which the Court found the child had proper care and custody while the parent was incarcerated when the child was left with a fit relative.

The majority held that the trial court erred in finding that Respondent father would be incarcerated for two or more years because he was due for parole in less than one year.  The majority notes MCL 712A.19b(3)(h) contains a forward-looking language, meaning the parent’s early release date must be two years from the filing of the supplemental petition.

The majority found the trial court clearly erred in concluding that it would take Respondent Father at least 6 months after release before he would be ready to care from his children, based solely on the foster care worker’s testimony because he had not evaluated Respondent Father’s parenting skills or facilitated his access to services.

The majority also found that the trial court should have evaluated whether Respondent Father could have provided proper care and custody by granting legal custody to relatives.

In addition, the Court held that it was improper to terminate under MCL 712A.19b(c)(i) or (g) because the trial court failed to address whether Respondent Father could provide proper care for his children in the future either personally or though his relatives.

The Court also found that termination was improper under MCL 712A.19b(3)(j) because there was no evidence the children would be harmed if they lived with Respondent Father  upon release.

The Court did not reach the issue of whether Respondent Father’s due process rights were violated.

The Court reversed the Court of Appeal’s affirmation of the circuit court’s order terminating parental rights and remanded the case.

JUSTICES MARKMAN AND HATHAWAY’S DISSENT

Markman and Hathaway make the following points:

• Respondent’s inability to comply with the PAA or participate in services was of his own making. (i.e. he was not incarcerated arbitrarily, but for his own violations of the law).
• There was no evidence that Respondent Father did anything to provide for his children while incarcerated and living with their unfit mother.
• The dissenters believe under MCL 712A.19b(3)(h), the court should be permitted to consider the entire time of Respondent’s incarceration and not simply look forward from the date the supplemental is filed, which, they argue ignores the period of incarceration before the petition was filed.
• The dissent stresses the importance of permanence for the children.
• Respondent Father was not present at the hearings due to his incarceration, but he always had counsel present.  This is enough for participation in the hearings.  This distinguishes the case from Rood, in which the father did not have appointed counsel.
• Contrary to the Majority’s findings, the dissenters point out that Respondent’s counsel did notify him that he could appear by speaker phone in a letter and Respondent did not initially respond.

JUSTICE WEAVER’S DISSENT

Justice Weaver adopts most of Markman & Hathaway’s dissent.  She goes further to criticize the majority for making arguments for Respondent Father that were not raised at the trial court and creating issues on appeal.  Justice Weaver says the result of the majority’s opinion is that these children will be denied permanence.

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

You can view or download the Court of Appeals decision here: In re Mason (CoA)

© 2010, Melinda Deel. All rights reserved.

For those of us who follow this area of the law, Judge Gleicher’s work is very familiar.  Her opinions in this area are very well-reasoned, but what I find most impressive is the impact she has had on the rest of the bench.  In the short time she has been on the bench (she was appointed in 2007), there has been a shift in both the way the Court of Appeals views child protection cases and a renewed emphasis on these cases.  The Court has published more opinions in this area than ever.   This has even caused the Michigan Supreme Court to take up more termination of parental rights cases.

Here are a few of quick notes on Judge Gleicher’s seminar:

• It is important to preserve issues for appeal.  She emphasized the importance of making objections and filing motions to make a clear record.  As a trial attorney for 27 years, she understands how difficult this can be.  She explained that unpreserved issues require a great deal analysis to even reach the substantive issue than an issue preserved at the trial court level.  She also discussed the public policy of requiring issue preservation to create an incentive for parties to seek a remedy from the trial court first.
• The judge discussed hot topics in the Court of Appeals.  The Court is looking at the ability of incarcerated parents to plan for their children by finding proper care and custody with family member or others while they are incarcerated.  The Court is also looking at parenting time for children in care as a reasonable effort toward reunification.
• She also addressed the importance of appealing jurisdictional adjudications because the right to appeal jurisdiction is lost if an appeal is not timely filed.  Raising the issue of jurisdiction after parental rights are terminated on a supplemental petition is considered a collateral attack on the termination and is not permissible.  Thus, trial attorneys should advise their clients that they have an automatic appeal as of right at the jurisdictional phase.

© 2010, Melinda Deel. All rights reserved.

Under current law, MCL 712A.19b(3)(m) permits a court to terminate a parent’s parental rights to a child if the parent voluntarily terminated rights to another child after abuse or neglect proceedings were initiated.

Currently, MCL 722.638 requires the Department of Human Services (DHS) to petition the family court to terminate parental rights to a child if there is a basis to terminate parental rights under MCL 712A.19b(3)(m). The amended statute will only require DHS to file a petition to terminate parental rights under the circumstances outlined in the amended MCL 712A.19b(3)(m).

MCL 712A.19b(3)(m), as of September 4, 2010, will read:

(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:

***

(m) The parent’s rights to another child were voluntarily terminated following the initiation of proceedings under section 2(b) of this chapter or a similar law of another state and the proceeding involved abuse that included 1 or more of the following:

(i) Abandonment of a young child.

(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.

(iii) Battering, torture, or other severe physical abuse.

(iv) Loss or serious impairment of an organ or limb.

(v) Life-threatening injury.

(vi) Murder or attempted murder.

(vii) Voluntary manslaughter.

(viii) Aiding and abetting, attempting to commit, conspiring to commit, or soliciting murder or voluntary manslaughter.

This change is a much-needed move in the right direction.

Links to the Public acts: 2010 PA 7; 2010 PA 12

© 2010, Melinda Deel. All rights reserved.

I will be posting more about this case later.  This was just such a big development I wanted to get it posted as soon as possible.

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

© 2010, Melinda Deel. All rights reserved.

I have been unable to find much on the internet regarding these bills and I was not able to find any case law that might serve as a call to action to modify the Act.  The legislation does have bipartisan support.  The policy behind the legislation may be to create a bigger incentive parents to safely bring newborn infants to an emergency service provider by eliminating the risk of a termination of parental rights if they have  a change of heart and seek custody.  The bill does not preclude the filing of a supplemental petition to terminate parental rights if services are not effective.

Under the current law,  a parent may surrender a newborn infant to an emergency service provider, which must take temporary protective custody of the child. If the surrendering parent wants custody of the newborn, he or she must file a petition with the family court within 28 days. If the parent does not do so, he or she is presumed to have knowingly released his or her parental rights to the newborn, and a child placing agency immediately must file a petition with the court to determine whether the court will enter an order terminating the rights of the surrendering parent.

If the court finds that the surrendering parent has knowingly released his or her parental rights and that reasonable efforts were made to locate the nonsurrendering parent, the court must enter an order terminating the parental rights of the surrendering parent and the nonsurrendering parent.

If a custody action is filed, the court must determine custody of the newborn based on his or her best interest, considering the factors set forth in MCL 712.14. Based on these findings, under MCL 712.15 the court may issue an order that does one of the following:

• Grants legal and/or physical custody of the newborn to the parent, and retains or relinquishes jurisdiction.
• Determines that the best interests of the newborn are not served by granting custody to the petitioner parent, and terminates his or her parental rights and gives a child placing agency custody and care of the newborn.
• Dismisses the petition.

Finally, under MCL 712.19b(3)(a)(iii), the Court may terminate parental rights if the parent voluntarily surrendered the child to an emergency service provider under the Safe Delivery of Newborns Law and did not petition the court to regain custody within 28 days.

Under Senate Bill 1118, a court would not be required to terminate parental rights of the surrendering and nonsurrendering parent if a custody action has been filed within 28 days pursuant to MCL 712.10.

Under Senate Bill 1119, following a custody hearing, instead of terminating the petitioner’s parental rights and giving a child placing agency care and custody, bill would allow the court to order a child placing agency to petition the court for jurisdiction under the juvenile code, if the court found that granting custody to the parent would not serve the newborn’s best interests.

Senate Bill 1120 would eliminate surrender of a child under the Safe Delivery of Newborns Act as a ground for termination under 712.19b.  However, .

© 2010, Melinda Deel. All rights reserved.

One interesting fact I picked up in the article is that In re JL was the Michigan Supreme Court’s “first major foray into the Indian Child Welfare Act (ICWA).”  Frankly, I had not realized that the Supreme Court had not addressed an ICWA issue in the past.

The article does an excellent job summarizing  the case, including listing the holdings of the case as bullet points.  I absolutely love it when an article makes a complex case easy to understand and this article does just that.  I highly recommend you take the time to read it.  You can view or download the article here:  Indian Children and Termination of Parental Rights: Michigan Supreme Court Takes a Step in the Right Direction in In Re Lee by Angel Sorrells, Cami Fraser, Thomas Myers, and Aaron Allen

© 2010, Melinda Deel. All rights reserved.

The article also acknowledges a nonprofit in Washington State that uses computer databases to locate relatives of children in foster care.

The article addresses the hardships faced by older children in foster care, who are typically some of the most difficult to find adoptive placements.  These children face rejection and disappointments from being bounced around to different foster homes, the isolation and loneliness of living in a group home and a number of other difficulties.  All of these can make it difficult to transition into a permanent adoptive home.

In Michigan, agencies such as Bethany Christian Services and Spaulding for children, who receives grants from the Dave Thomas Foundation,  work to place older and special needs children in adoptive homes.

It is nice to see this issue getting some attention.  You can read the New York Times Article here:  A Determined Quest to Bring Adoptive Ties to Foster Teenagers.

© 2010, Melinda Deel. All rights reserved.