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.

However, the report does find the some progress has been made.  DHS made progress in returning children home; lowering the rate of entry into care; reducing the inappropriate use of detention; maintaining lower caseloads for foster care staff; and developing the placement and permanency policies they will need to improve outcomes for children.

The Report finds there are significant problems maintaining stable leadership within DHS.  The report states, “The comings and goings and changes in reporting lines among critical DHS leadership staff has prevented the agency from forming a cohesive leadership team that is sufficiently planful and consistently communicates effectively internally and externally.”

You can view or download the report here: Second Independent Monitoring Report.

Children’s Rights issued a press release regarding the Report, which states as follows:

After making some initial progress in a comprehensive child welfare reform effort required under a federal court order secured by Children’s Rights, a new progress report shows Michigan has still not found safe, permanent families for thousands of children stranded in foster care, and is at risk of backsliding further unless the state immediately stabilizes its management team and structure.

Ineffective planning and an unfortunate absence of stable leadership have stalled efforts to provide permanent homes for large numbers of children who have been stranded for years in foster care — allowing far too many children to languish and age out of care without a place to call home, according to the report (PDF), issued today by independent experts appointed by the court to monitor the reforms.

Due to the lack of progress in this and other critical areas, Children’s Rights will put DHS officials on formal notice this week that it considers the state to be noncompliant with the court order mandating reform. The parties will then be required to work together with the expert monitor for the following 30 days to explore ways to remedy these issues and get the reforms back on track. If these efforts do not succeed, Children’s Rights could seek further court intervention.

“This report sends a clear message to Michigan’s leaders that they must stabilize their child welfare team and start delivering better results for the tens of thousands of vulnerable children whose lives and well-being depend on them,” said Sara Bartosz, senior staff attorney for Children’s Rights and lead attorney on the case. “While we understand this reform effort is a significant undertaking and will no doubt take time to implement successfully, it cannot succeed if key leadership positions continue to change hands and if required reforms continue to go unimplemented.”

Issued by the Public Catalyst Group, today’s report — the second since the 2008 settlement of a class action brought against Michigan by Children’s Rights and co-counsel on behalf of approximately 19,000 children dependent on the state-run child welfare system — evaluates progress made by the state Department of Human Services (DHS) over the six-month period between April 1 and September 30, 2009. It details several areas in which DHS has failed to make adequate improvements:

• Too many children and older youth continue to wait for stable, permanent homes. More than 6,000 children in Michigan’s foster care system are still waiting for permanent homes and more than half of the children already legally free for adoption nonetheless have waited more than a year for their adoptions to be finalized. Youth who do not find permanent families age out of foster care with inadequate preparation and a lack of adult connections.
• Youth aging out of foster care continue to face dismal outcomes. Eight percent of legally-free children aged out of the system without permanent homes in the last monitoring period, and the majority of older youth in care still lack adequate health insurance. Youth who leave foster care without permanent families or appropriate supports are far more likely to experience challenges with substance abuse, homelessness, incarceration, and mental and medical health issues.
• Some caseloads remain dangerously high. When child welfare workers are overburdened by too many cases, vulnerable children and families cannot receive the necessary attention and services they need. In Michigan, 37 percent of workers responsible for monitoring ongoing child protective service cases, including overseeing children placed into foster care, are carrying caseloads larger than 30 children each. Adoption workers are also continuing to carry caseloads that are too large.

While the challenges noted in the report loom large for DHS, the report recognized the state’s progress in a few key areas. Those improvements over the last six months include an indication the state is returning more children home to their birth families and the state is increasing the use of family settings for children without severe therapeutic needs in care instead of institutions.

Michigan’s ongoing budget constraints statewide continue to threaten the reforms at every level. The report notes that the state was often forced to divert resources from some areas of reform to support others, and even cut local county services to children and families by 20 percent in FY2009.

“Although we recognize that economic conditions have been particularly severe in the state of Michigan, it is essential that direct services for kids and families remain a top priority in Michigan,” Bartosz said.

Today’s report is the second monitoring report issued since Children’s Rights filed the child welfare reform class action, known as Dwayne B. v. Granholm, in 2006 with Edward Leibensperger of the international law firm McDermott Will & Emery and Michigan-based law firm Keinbaum Opperwall Hardy & Pelton.

For more information about Children’s Rights ongoing campaign to reform the Michigan child welfare system, including the full text of today’s report, please visit www.childrensrights.org/michigan.

Related Press

Report: State falls short on court-ordered child reforms (Detroit News, March 9, 2010)

Report: State foster care improving, but still lags (Detroit Free Press, March 9, 2010)

© 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.

School truancy is a rampant problem in the Detroit Public Schools.  Dickerson cites data from the Detroit Public Schools that, “the typical Detroit high school student missed 46 days of instruction last year. Nearly a tenth of all high school students were absent more than 100 days. The school year is 183 days.”  With attendance statistics like this, it is no wonder Detroit Public Schools are the worst in the nation.

I think we can all agree that schools alone cannot be responsible for a child’s education.  It requires the schools, parents and the student to be active participants.  Most parents understand the value of an education and don’t need a nudge in right direction.  Tying school attendance to welfare benefits seems to be a reasonable requirement for those parents who need some kind of motivation to take an active part in their child’s education.

You can read Brian Dickerson’s column in the Freep here: Making parents pay for kids’ truancy

© 2010, Melinda Deel. All rights reserved.

© 2010, Melinda Deel. All rights reserved.

© 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.

With the increased incidents of “sexting” among teens, it seems appropriate to address the issue and the juvenile delinquency ramifications of this activity.  Wikipedia includes a definition of “sexting” (a combination of sex and texting) as the act of sending sexually explicit messages or photos electronically, primarily between cell phones.  Roughly 20 percent of teens admit to participating in “sexting,” according to a nationwide survey (pdf) by the National Campaign to Support Teen and Unplanned Pregnancy.

There have been several incidents of adults and juveniles being charged with felonies for sexting over the past year. Last year, a 14-year-old girl in Michigan was charged with felonies for sending nude images of herself to classmates.

Michelle Simonson, 28, of Oxford was to go on trial, charged with distributing sexually explicit material to a minor and enticing a minor for immoral purposes and had faced up to four years in prison. But in a plea agreement reached 10/30/2009, she agreed to enter guilty pleas in exchange for three months in the Oakland County jail. (You can read the Detroit Free Press Article here).  Police allege Simonson, a teacher at Sashabaw Middle School, sent the 14-year-old boy, a student at the school, a semi-nude picture of herself and about 50 texts over the course of the year.  His foster parents discovered the texts and turned them over to police.

Brandon Figurski, a 20 year old assistant swim coach at Oxford High School, was charged with child sexually abusive activity, using a computer to commit a crime and communicating with another to commit a crime for sending sexually explicit texts to two 15-year-old girls. (You can read the full story on MLive here).

This month, a man accused of sending sexually explicit messages to a 14-year-old girl after visiting her home to set up her laptop computer was charged with one count of using a computer to communicate with another person to commit a crime, a 4-year felony, and one count of attempting to distribute sexually explicit material to children, a 2-year misdemeanor.

Clearly, sexting is pervasive in youth culture in America and law enforcement has taken notice.  So, what are the legal ramifications to children caught sending and receiving these messages?

The law

Under Michigan law, sexting can be a violation of MCL 750.145c, which prohibits the production (a 20 year felony), distribution (a 7 year felony) or possession (a 4 year felony) of child sexually abusive material.  “Child sexually abusive material” is defined as “any depiction, whether made or produced by electronic, mechanical, or other means . . . of a child (a person less than 18 year old) or appears to include a child engaging in [sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity]. ” See MCL 750.145c(b),(h), (m).  The statute includes detailed definitions of each of the prohibited sex acts.

A person that sends a sexting message may also be charged with use of the computer or internet in the commission a sex offense under MCL 750.145d.  Most cell phones today are so called smart phones, which contain computer processors and are wirelessly connected to the internet through the cell provider’s network.  These phones fall within the broad definition of a computer under the statute.

Who can be charged?

To illustrate who can be charged in a sexting case, consider the following scenario: A 15 year old girl takes a nude photograph of herself with her cell phone and sends it to her boyfriend.  He then sends it to three of his friends, who each send it to 10 of their closest friends (for those keeping track, this photograph is now in the hands of 35 people – potentially within minutes of taking the picture).  Who can be charged?  The answer:  everyone.

• The 15 year old girl can be charged with production and distribution of child sexually abusive material;
• Her boyfriend can be charged with distribution and posession;
• His friends can be charged with distribution and possession; and
• Their friends can be charged with possession.

This is a perfectly plausible and all too typical scenario.

The Sex Offender Registry

Another consideration in any sexting case is the requirements under the Sex Offender Registry Act.  MCL 28.721 et seq.  An adjudication  triggers the registration requirements for the non-public registry for 25 years.  A juvenile may also be required to disclose the adjudication on any college or financial aid applications.  As always, if the juvenile is placed on the consent calendar, there is no adjudication and the file is not abstractable to any law enforcement or other agency.

Here are links to the statutes found in this article:

Child Sexually abusive activity: MCL 750.145c

Use of a computer in the commission of a sexual offense: MCL 750.145d

Sex Offender Registry Act: MCL 28.721

© 2010, Melinda Deel. All rights reserved.

This case arose out of the search of a student’s vehicle in the school parking lot based on an tip received from an anonymous tip hotline.  The defendant was simply described as a male Caucasian junior who sells marijuana “from school, his truck, and East Bade [sic] Park in Traverse city.”  A week after receiving the tip, the school’s assistant principal searched the vehicle, while being observed by the school’s liaison officer and some other school officials.  The defendant was present for the search, but did not consent to it.  The assistant principal discovered a bag of marijuana behind a seat in the vehicle and the defendant was arrested.

Prior to trial, the defendant filed a motion to suppress the evidence as fruit of an unconstitutional search.  The trial court denied the motion, finding that the anonymous tip alone was sufficient to constitute reasonable suspicion, given the level of detail in the tip.

It is important to note the difference between a search by a school official and a police officer.  The police may search a motor vehicle without a warrant if they have probable cause to believe that evidence of a crime may be found therein. People v Kazmierczak, 461 Mich 411, 418-419; 605 NW2d 667 (2000). However, school officials may search a student’s person or property on school premises on the lesser standard of reasonable suspicion. See New Jersey v TLO, 469 US 325, 341-342; 105 S Ct 733; 83 L Ed 2d 720 (1985).

The Court analyzed the search under the lower “reasonable suspicion” standard and did not express an opinion regarding whether the presence of the officer raised the standard.  Reasonable suspicion requires “articulable reasons” and “a particularized and objective basis for suspecting the particular person . . . of criminal activity.” United States v Cortez, 449 US 411, 417-418; 101 S Ct 690; 66 L Ed 2d 621 (1981).  In “a case involving an anonymous tipster,” whether reasonable suspicion exists “must be tested under the totality of the circumstances with a view to the question whether the tip carries with it sufficient indicia of reliability to support a reasonable suspicion of criminal activity.” People v Faucett, 442 Mich 153, 169; 499 NW2d 764 (1993) (emphasis in original), citing Alabama v White, 496 US 325;110 S Ct 2412; 110 L Ed 2d 301 (1990). An anonymous tip can provide reasonable suspicion if it is considered along with a “totality of circumstances” that show the tip to be reliable. But alone, without any “‘indicia of reliability’” or “‘means to test the informant’s knowledge or credibility’” an anonymous tip is generally insufficient. People v Horton, 283 Mich App 105, 113-114; 767 NW2d 672 (2009), citing and quoting Florida v J L, 529 US 266, 271-272, 274; 120 S Ct 1375; 146 L Ed 2d 254 (2000).

In this case, the anonymous tip was the only basis for the search.  The Court held the tip alone could not be viewed under the totality of the circumstances because there were no other circumstances outside the tip.  The Court also held that the tip itself was vague.  Thus, the anonymous tip alone was insufficient to support a reasonable suspicion.  The Court reversed and ordered the evidence suppressed.

Judge O’Connell dissented indicating that the tip, considered in its entirety, was sufficiently detailed to provide indicia of reliability. He did not share the majority’s view that “corroborating circumstances” outside of the tip must be present for an anonymous tip to be considered reliable.

This case is instructive for any search on school premises.

You can view or download the case here:

• People v. Perreault (majority)
• People v. Perreault (Dissent)

© 2010, Melinda Deel. All rights reserved.