Michigan Children's Law Blog

In re Hansen – Supreme Court Vacates Court of Appeals

After granting leave, ordering briefs and hearing oral argument, the Michigan Supreme Court, in a one paragraph order, vacated the Court of Appeal’s order affirming this case and remanded the case to the trial court for reconsideration of its decision to terminate the respondent’s parental rights in light of In re Mason, 486 Mich ___ (2010) (Docket No. 139795, decided May 26, 2010).  Justice Weaver dissented, stating she still believes Mason was wrongly decided and Mason does not apply to the facts in this case.

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).

In re Beck – Supreme Court Grants Leave

The Supreme Court has granted leave to appeal in In re Beck, so it looks like last month’s published opinion is not the final word on the issue.  In that opinion, the Court of Appeals held that a parent’s obligation to pay child support does not end upon an involuntary termination of parental rights. (You can view my post on the Court of Appeals opinion here.)  In its order granting leave, the Supreme Court framed the issue  presented as follows: “The parties shall address whether a parent whose rights to his children have been involuntarily terminated in a child protective proceeding under the Juvenile Code can nonetheless be ordered to pay child support for those children.”  The Court also granted leave to file amicus briefs to the Children’s Law Section and Family Law Section of the State Bar of Michigan and the Friend of the Court Association.

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

In re Lopez (unpublished)

Wouldn’t you know it?  The day after I get around to posting In re Mason, the Court of Appeals issues its first reversal based it: In re Lopez (unpublished).  In this case, father appealed Judge Dobrich’s (Cass County) termination of his parental rights to his child, Y, pursuant to MCL 712A.19b(3)(g) and (h).

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

In re Mason – Michigan Supreme Court

Interesting things happen when you are on vacation.  While I was on our family vacation, the Michigan Supreme Court ruled on In re Mason.

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)

Graham v. Florida

In Graham v. Florida, an opinion by Justice Kennedy, the U.S. Supreme Court held it is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder.  The vote is 6-3, with Justice Thomas dissenting, joined by Justice Scalia and in part by Justice Alito.  Justice Alito files a separate dissenting opinion for himself.   Justice Stevens, joined by Justices Ginsburg and Sotomayor, concurs, even though all three join the majority opinion, and the Chief Justice concurs in the result alone.

The Court dismissed Sullivan v. Florida as improvidently granted, in this per curiam opinion.

Under Michigan Law, a juvenile may be sentenced to life in prison without parole, so this case will have a significant impact on juvenile delinquency cases in Michigan, specifically designated and waiver cases.

You can download the opinion here: Graham v. Florida

For more information regarding these cases, check out my previous blog post here.

New Link: Typography for Lawyers

I stumbled upon a new site today that is not specifically geared toward Children’s Law, but I thought it was important enough to add here.  The site deals with typography, which is something most of us do not think about.

You may be asking yourself, “what is typography?”  Typography is the arrangement and appearance of printed matter.

In a profession in which the primary objective is to get your idea across, perhaps it is something at which we should take a closer look.  To be sure, the court rules contain certain constraints regarding the appearance of court filings.  This is all the more reason attorneys should look more at the typography of their documents more carefully than other professions.   For example, typography can draw the reader to important portions of the document and make it more visually appealing.   I have included the link on the links page, but you can also find it here.

http://www.typographyforlawyers.com

Judge Elizabeth Gleicher

The topic of this month’s OCBA Juvenile Brown Bag Lecture was appeals.  We were fortunate enough to have Michigan Court of Appeals Judge Elizabeth Gleicher speak to our group.  The seminar was very well-attended and informative.   I was really impressed by Judge Gleicher’s grasp of this area of the law.

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.

New Legislation: 2010 PA 7 & 2010 PA 12

Two Bills recently signed into law would amend MCL 712A.19b(3)(m) and MCL 722.638 to permit a court to terminate parental rights only if parental rights were voluntarily terminated in cases that involved abandonment of a young child; criminal sexual conduct; severe physical abuse; life-threatening injury; murder; voluntary manslaughter; or other specified types of abuse.  These laws will take effect September

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

Second Monitoring Report in Dwayne B v. Granholm Issued Today

The second independent semi-annual monitoring report to Judge Nancy Edmunds pursuant to the 2008 settlement in Dwayne B. v. Granholm was issued today.  The settlement requires these monitoring reports to verify implementation of the child welfare reforms outlined in the settlement. The report finds that too many children remain stranded in foster care; thousands of children continue to linger in care without permanent families; too many youth continue to age out of care without healthcare or a permanent home; and too many children remain in unlicensed relative homes.

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)

In Re Beck: Child Support Following Involuntary Termination

In a published opinion, the court of appeals affirmed the trial court order continuing child support after involuntary termination.  The Court reasoned that there is no distinction between an involuntary termination and a voluntary termination.

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