© 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.

Google Scholar

I know this blog is  geared to Children’s law issues, but I wanted to pass this along because I understand that most lawyers in this field do not have the funds for expensive legal research services (Lexis and Westlaw).  I have been playing around with Google’s legal research function on Google Scholar and I have found it to be very helpful.  Google scholar (http://scholar.google.com) looks very much like the traditional Google search engine page.  It allows you to search scholarly literature, just like Google Images allows you to search picture s on the web.  You can search across many disciplines and sources: articles, theses, books, abstracts and court opinions, from academic publishers, professional societies, online repositories, universities and other web sites. Google Scholar helps you find relevant work across the world of scholarly research.

Now, Google Scholar has added legal research to the mix.  Under the search bar, you can click on “Legal opinions and journals.”  Then, using traditional Google search terms you can search for case law.   An advanced Scholar search will allow you to narrow your search to federal or state courts.   I have done a number of searches today and found it fairly easy to use.  This may be in large part because I am used to performing Google searches for other subjects.

The cases show the pagination for the Northwest reporter series.  One interesting feature is the “How Cited” tab, where you can see how individual cases have been quoted or discussed in other opinions and in articles from law journals.

Overall, it is a very nice free legal research tool.  I have added a link to Google Scholar on my links page under legal research.

Google Scholar: http://scholar.google.com

© 2009, Melinda Deel. All rights reserved.

Roughly half a million children throughout the U.S. are in foster care. But a recent findings by the Center for the Study of Social Policy shows that African-American youngsters are more likely to be steered into foster care at disproportionate rates than whites, and are often “negatively characterized and labeled” by child welfare workers.

Kristen Weber, co-author of the recent study; Bernadette Blount, of the Child Welfare Organizing Project in New York, and psychologist Toni Heinemen, creator and executive director of A Home Within, discuss how a child’s race can influence his or her chance at finding a loving home.

National data show that African American children and families are disproportionately represented in almost all child protective systems in the United States. Once involved with these systems, African American children are more likely to be removed from their homes, spend longer periods of time in out-of-home care, and often times their families have less access to relevant and helpful social services.  According to the report, Michigan fares pretty poorly.  For the Michigan study, reviewers spent spent spring and fall of 2007  in Saginaw and Wayne Counties observing.  The findings of the report are not surprising for anyone who has practiced in this area and the recommendations are pretty weak.  Basically, the report finds that DHS is in need of some racial sensitivity training.  There is nothing remarkable about this report, but I figured it is worth reporting.

You can download or view a copy of the report here: A Home Within

© 2009, Melinda Deel. All rights reserved.

Respondent is the father of three sons who were 8, 10, and 13 years old when child protection proceedings began against their mother in September 2006.  The allegations related to mother’s abuse of one of the children.  She pled guilty to the allegations. Respondent has been incarcerated with the Department of Corrections (DOC) since 2004 on charges of CSC 1st Degree and CSC 2nd Degree (both of which involved a minor).

Although respondent-father had a right to communicate with the court by telephone in order to participate in the child protective proceedings, he was not informed of this right.  He received notices concerning the hearings, but the DHS and the court failed to comply with MCR 2.004 (B) and (C), which require the DHS to move the court to arrange for telephonic communication with a respondent parent through the DOC.

Respondent-father’s sister was at the hearings and offered to care for the children.  While the trial court found her to be appropriate, it denied her request on the basis that she lived over an hour away and the DHS foster placement would allow the children to remain in their school district.  The trial court also denied a request for visitation with the father in prison, despite his sister’s offer to provide transportation for those visits.

After a year in care, respondent-mother had not rectified the conditions that led to the children coming into care and petitioners filed to terminate respondent-mother and respondent-father’s parental rights.  At the termination hearing, for the first time the DHS and the court arranged for respondent-father to participate by telephone.  He immediately invoked his right to counsel, but the court denied his request.

On November 7, 2007, the court issued an opinion and order terminating both parents’ rights to their sons.  Respondent-mother and respondent separately appealed, and the Court of Appeals affirmed in a split, unpublished opinion.   Dissenting Judge Gleicher would have reversed the order terminating respondent’s parental rights.  She opined that the DHS’s and the court’s failures to comply with MCR 2.004 and the complete denial of counsel required reversal because respondent’s procedural and substantive due process rights were violated and, therefore, the court’s resulting order “lack[ed] any inherent integrity . . . .”

Justice Corrigan wrote that the trial court’s refusal to allow respondent-father to appear by telephone was a violation of MCR 2.004 and reversal was mandated by MCR 2.004(F).  She did not reach the due process issue because reversal was mandated by MCR 2.004(F).  She wrote that the failure to follow MCR 2.004 was not harmless error as he could have been appointed an attorney and argued throughout the proceedings.

She also opined that termination was not inevitable under MCL 712A.19b(3)(h).  That statute does not automatically authorize termination merely because a parent will be imprisoned for more than two years. Rather, the statute permits termination if 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. [MCL 712A.19b(3)(h) (emphasis added).]

She wrote that the statute’s use of the word “and” clearly permits a parent to provide for the child’s proper care and custody although he is in prison; he need not personally care for the children.  In this case, respondent-father could have argued and arranged for placement with his sister.

You can read and download the order here: In re McBride

© 2009, Melinda Deel. All rights reserved.

State law requires the participation of a prosecutor, and some funding sources also require prosecutor participation. It is unclear whether the programs will be able to continue without the prosecutor’s office.

Oakland County Circuit Court’s Family-Focused Juvenile Drug Court and Adult Treatment Court started in 2001.  Cooper cites budget concerns as a basis for backing out of the program.  The courts cost more than $730,000 annually.

The Oakland Press wrote a pretty scathing article about Cooper’s decision.  You can read it here.  I think the Oakland Press is going a bit hard on Ms. Cooper (full disclosure:  I did serve on an Inns of Court team with Jessica Cooper when she was a Judge in the Court of Appeals), but I think it would be a shame to lose the drug treatment court.

There may still be hope for the program.  This could just be budget posturing by the prosecutor for an increase in her budget.  It is budget season after all.  Having been in the middle of it during the last budget, I know how brutal it can be.

Michigan radio’s article can be found here.

© 2009, Melinda Deel. All rights reserved.